19 September, 2020

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The Neanderthal Stage Of Constitution Making

By Basil Fernando

Basil Fernando

With to the 20th amendment, once again Sri Lanka will return to the 1978 constitution in its original form. From the making of that constitution up to now has been a wasted time for Sri Lanka from the point of view of the development of an organized society capable of meeting the demands of modern times. A short list of catastrophes, which resulted from the 1978 constitution for 42 years, is as follows:

Ever increasing debt which has become the major obstacle to economic development – near annihilation of local entrepreneurship and the development of the local enterprises – uncontrolled and uncontrollable corruption – unimaginable levels of collapse of the system of the administration of justice – ever increasing unemployment – constant decreasing of the real value of wages accompanied by increase of prices – no significant improvements in health, education, transport, and other facilities – increase of crimes and particularly increase of child abuse, sexual abuse and harassment of the women and general increase of public insecurity – loss of morale of all those who are engaged in public services due to ever increasing politicization – displacement of the rule of law with the direct rule of politicians in power – ever increasing impunity and absence of the accountability – in short spread of situation of disorder and lawlessness – impact of all this on morale ethos of the country, which has led to a general agreement that the country is living through a period of degeneration and decadence. 

With the full reinforcement of the 1978’s constitution, all these factors will continue and get worse. What kind of crises and catastrophes will emerge is hard to predict. 

What all these bring to the focus is the fact that the Sri Lankans has not yet agreed on what type of society they want. This lack of collective understanding on the goals the country should pursue in order to create an orderly and a peaceful society, which guarantees opportunities for all to better their living conditions, is on the root of the constitutional crisis. 

When the British declared independence for India, the Indian leaders representing various divergent views and representing conflicting causes sat together for almost two years to discuss what is the type of society they want to have in the future. What they really wanted was enshrined in the preamble of the constitution, and the rest of the constitution merely worked out what they proposed then as the ways to achieve the goals that they had agreed upon. This constitution has survived despite of some serious threats posed against it by some powerful political leaders like, for example, Indira Gandhi who wanted to remove the judicial review powers of the Supreme Court relating to the power of the legislature to amend any laws. However, the Supreme Court relying on the Indian Constitution was able to prevent this attempt by developing what is now famously known as the Basic Structure Doctrine.

What this basis structure means is that the basic agreement of the people represented by a non-partisan  constituent assembly as to what the people want as a permanent part of their social organization. The Indian leadership showed the capacity to understand what should be the permanent part of their way of governance and those that can be changed to meet the requirements of time.

Sri Lanka has not arrived at this stage of constitutional wisdom. In evolutionary terms, the stage at which the Sri Lanka is in terms of organizing the society from the point of view of constitutions and laws could be called the Neanderthal stage. For Homo Sapiens to separate themselves completely from the Neanderthals took many millions years. How long Sri Lanka will take to develop a constitution that is not tailor made to any particular individual or party but one that really represents the basic interest of the people, it appears will take a long time. 

The blame for the delay cannot be merely placed on politicians. The development of a consensus on what is best for themselves can only be a collective agreement. Such collective agreements do not come from above or by whatever this or that politician think is best for the people. This does not also come from mere electoral majorities. 

Such a collective understanding and a will has to be worked out from within the society itself. In this, more articulate sections of society plays a significant role. The unwritten constitution  of Britain was a product of work over a long period of time by many persons such as political thinkers, judges, political movements, intellectuals at every level of society, movements that represent the poorest section of society as well as those articulating the views of specific groups such as women and minorities and the like. The people who come under the influence of these debates gradually learn to think for themselves and to make the demands that will best protect everyone’s interests. 

In Sri Lanka, the society has not reached this stage nor has it been trying to reach such a stage of consensus. 

Last 42 years has been spent not on finding ways to displace 1978 constitution, but to make various minor amendments. Thus, last 42 years can be considered a lost time. Obviously, the years that immediately followed the 20th amendment, will be an addition to these wasted years. 

We may ask with Peter Seeger ‘when will we ever learn?’

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Latest comments

  • 6
    3

    Voice For Democracy in Sri Lanka invited Dr Jayampathy Wickramaratne to express his views on the proposed 20th Amendment to the Constitution of Sri Lanka. Please follow the link given below to listen to his views
    https://www.colombotelegraph.com/index.php/video-dr-jayampathy-wickramaratne-on-20th-amendment/

  • 14
    1

    Basil Fernando:
    “…..Sri Lanka will return to the 1978 constitution in its original form……. From the making of that constitution up to now has been a wasted time for Sri Lanka “

    This is an understatement.

    Since gaining independence last 70 odd years have been a wasted time for Sri Lanka……and continuing on the same theme….

  • 25
    1

    It appears Sri lankan constitutional development is caught in a mutually interacting vicious loop. The writer correctly identifies the prerequisite for formulating a truly democratic constitution as “the collective understanding on the goals the country should pursue in order to create an orderly and peaceful society.” But such a consensus can emerge only if there is already some degree of democracy in the country. Instead what we have is a skewed public life dominated by money, corruption, crime and prejudice. In such an environment only the most vile succeed as politicians, religious leaders and journalists. Yesterday we saw a good example of how these elements work together as a team. Malcolm Ranjith receiving with open arms Weerawansa in front of sham TV cameras and pontificating on constitutional issues. This is the kind of scum that is manufacturing “the collective understanding and aspirations of the people” for a new constitution at the moment.

    • 5
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      This Malcolm Ranjith who hails from the recently Tamil North West coast, is now playing the Sinhalese racist card and is not fit to be are Cardinal , leave alone priest. The Vatican should discipline this man and take note of his activities , utterances that are completely against the teachings of Lord Jesus Christ. He is now becoming only the spokesperson and leader of only the Sinhalese Catholics and not the Tamil Catholics in the island. The Tamil Catholics are very disappointed with this man’s behaviour and his extremely pro Sinhalese racist stand and will soon have to take a stand , as he does not represent or speak for them or even care for what they are undergoing in the North and East. Because of this person’s actions the Catholic Church in the island will need to be divided into Sinhalese and Tamil and he can represent the Sinhalese Catholics and racists

  • 11
    1

    This comment was removed by a moderator because it didn’t abide by our Comment policy.

    For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2

  • 21
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    We will never learn as long as the majority have prehistoric mindsets, cannot think rationally when someone put fear into them, cannot overcome jealousy when someone put racism into them. Their selfishness is overwhelmingly strong, cannot see the country is going towards tribalism, and their petty-mindedness is dragging the country backwards, they don’t realize their future generations too are going to suffer. Can you imagine a well-educated person like Ali Sabri saying that the independent commissions are unnecessary? GLP is saying a convicted murderer can sit in our parliament? What sort of educated people are they? No values, no shame. Maybe they only think about their Ministerial portfolios. Especially Ali Sabri should be careful of his future wellbeing. He should not forget the Rajapakses’ condom style, after using throwing away! He may know a whole lot of GR legal secrets. Sabri should be mindful of what happened to close confidants (Shirani B, Sajin Vass, Lasantha etc) who knew Rajapakses’ secrets, and later had disagreements. In Sabri’s case it could be double whammy. Remember what happened to Kuweni after Wijaya chased her out, when she had to go back to her own people. History has a strange way of repeating itself.

    • 11
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      Gamage – “We will never learn as long as the majority have prehistoric mindsets,…”

      more like “Neanderthals” mind set?

    • 2
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      Gamage,
      This is the usual humbug coming from Demala (Ceylon Tamils after 1911) people.
      Majority have prehistoric mindset
      Majority have Mahawanshe mindset
      Majority have Sinhala-Buddhist mindset
      Majority have racist mindset

      “We will never learn as long as the majority have prehistoric mindsets, cannot think rationally when someone put fear into them, cannot overcome jealousy when someone put racism into them.”

      • 3
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        “For Homo Sapiens to separate themselves completely from the Neanderthals took many millions years”

        .Eagle Eye is struggling

      • 3
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        Eagle Eye;
        I would not spend precious time of my life to reason with you, as it is not worth to have any interaction with uncivilized characters.

        • 2
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          Gamage,
          it is just because you may be not sick.
          :
          But it has been evident that Eagle Eye is mentally retarded person. Not once, on and on, he has been attacking the minorities. No matter his thoughts and minds far away from the average, he makes every effort to paint the picture that SINHALESE are the ultra racists.

        • 1
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          Gamage

          “I would not spend precious time of my life to reason with you, as it is not worth to have any interaction with uncivilized characters.”

          On the contrary I would rather spend my precious time engaging with Eagle Brain Dead Blind Eye not because I can educate him or have rational discussion with him however the time I WASTE here with Eagle Brain Dead Blind Eye is sort of free fun that does not cost me a cent. In fact I cannot buy such fun even if I am willing to spend tons of money.

  • 5
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    “Two things that should not be seen: Law making and Sausage making”. – Bismarck.
    Equally execrable is Constitution Making; we may add.

  • 4
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    JRJ must be laughing in his grave.
    Anyway we are back to square peg one.

  • 12
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    It is just not JRJ even the Rajapakses must be laughing their sides out. They only know too well how to entice the voter to give them a 2/3rds majority.
    JRJ famously remarked the only thing he could not do even with such powers is to make a Man into a Woman and vice versa.
    But very soon our Law Prof: cum Rhodes scholar G.L.Pieris and Ali Sabry P.C. WILL UNDERGO A SEX CHANGE!

  • 9
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    Our constitution was drafted in the form of British Tradition by Sir Ivor Jennings, an authority on constitutional law and is author of a definitive book on the workings of the then British constitution. He advised D. S. Senanayake in drafting the Constitution of Ceylon to form the Dominion of Ceylon. It was not really homegrown in that Jennings and Senanayake drafted to suit the circumstances and not far thinking enough. The Indian Constitution was drafted by B. R. Ambedkar Chairman of the Drafting Committee, ( was an Indian jurist, economist, politician and social reformer, who inspired the Dalit Buddhist movement and campaigned against social discrimination towards the untouchables ), Benegal Narsing Rau Constitutional Advisor to the Constituent Assembly, Surendra Nath Mukherjee Chief Draftsman of the Constituent Assembly. These persons were knowledgeable from top to bottom in Indian Tradition and Custom, Ambedkar from lowly (pardon me for that term for want of another) Dalit caste rose to the top of the highly educated class, saw everything from depth and vision of a New India.

    The Ceylon Constitution and the new Republican constitution in 1972, and successive amendments, all were not totally inclusive but pandered to the different segments ad hoc and politics was at the core.

  • 1
    3

    The Lankawe’s only problem is that they are behind in constitution making, only with Neanderthal? Give me break! Lankawe is burning because of Sinhala Intellectuals’’ sheer racism. Lankawe started with a super constitution made by Britain, comparable to Britain’s. That constitution became monkey’s hand flower garland only after Sinhala Intellectuals started to tear it off with Indian Pakistani citizenship act, MMDA, Sinhala Only…………
    Basil’s loading the blame on politicians or people will not work. It is the hypocrisy kills Lankawe. When the Sinhala Intellectuals, the strange species of this earth, walks like human with two legs and eat with hands, are going to evolve into human being? That is the question will answer for when the Wildlife Sanctuary SinhaLE Lankawe will become one state, with a member in UN. What was special in JR’s constitution that is not comparing with Don Stephen’s Indian Pakistani citizenship Act, which reduced the most active earners of the country as simply country less slaves? It was JR’s grace granted some status for few of them. What is the difference JR’s constitution had from 1972 constitution which enacted to sever Lankawe’ court system from Privy Council, constitutionalized Sinhala and Buddhism, and invalidated S 29 of the Soulbury constitution’s minority close.

    • 1
      5

      Mallaiyuran,
      Sinhalayo evolved into human beings thousands of years ago from Homosapian lived in Southern part of the country 125,000 years ago. That is why they gave citizenship to Dravidians brought by colonial rules illegally and abandoned in Sinhale, gave them free education, free health service and jobs without any discrimination.
      The question we should ask is ‘When these racist separatist Malabar Vellala Tamil politicians evolve into human beings and appreciate what Sinhalayo have done and be grateful to Sinhalayo’. Is behavior of these people a reflection of poor upbringing?

      “When the Sinhala Intellectuals, the strange species of this earth, walks like human with two legs and eat with hands, are going to evolve into human being?”

  • 1
    0

    The author very aptly describes the net result of the method of Government and Governance which prevailed for some time, in the second paragraph of his article. In other words, it is approaching the status of a failed state if not actually a failed state. Ironically, the credited author of the 1978 constitution, namely, President JRJ, boasted that the only thing he cannot do is a sex change of a human being. The implications are that he can do anything and everything. The author brings in an important point with respect to democratic governance, namely, the wide public consensus. This is important leave alone making a constitution of a country. If one were to ask what is the Sri Lankan set of values? What does Sri Lanka as a nation stand for? The honest answer would be “I don’t know”. Obviously, the hurry in introducing the 20A appears to be motivated by two main factors, namely, the consolidation of position and distributing perks among many. Yes! We can have, say, a State Minister of “Choka Baila”. Will all that correct the ills of the society? Aiyo! NO!

  • 3
    1

    Far fetched as it may be, could Gota be preparing the way for his son (the young man with a handlebar mustache, an American citizen said to be working for NASA) to succeed him? The dual citizenship clause and the minimum 30 years for Presidency could be clues.

    Never underestimate a military type with a small, authoritarian brain.

  • 1
    5

    Constitution making was in Neanderthal stage during ‘Yahapalana’ Government. Those who were responsible for drafting the constitution had ‘Tribal’ mindset.

    • 0
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      Eagle,
      Is the Tribal mindset of Tamils is worse than Malaysian Eagle’s ” Tree net mindset” or Sinhala Buddhists’ “Cave lion mindset”

  • 2
    3

    I agree with the writer when he list current problems in Sri Lankan society. What I don’t agree is his opinion that “With the full reinforcement of the 1978’s constitution, all these factors will continue and get worse”. We must understand that the problem in Sri Lanka is the “poor discipline of the society”. Their mind set is very self focused and by hook or crook, they want to earn money. I don’t believe Sri Lankans are educated and intelligent. So the solution is with decisive leadership and system changes to remove people intervention. To do this there should be concentration of power to the President as all other models dismally failed. So lets try this. We are at the bottom of pit only way is up. Democracy on paper is not going to help us. Autocratic leader with good intentions only will help us. That is the reality.

  • 2
    3

    Political pundits like Victor Ivan, Dayan were writing expensively last why GR wanted a ceremonial President position with no powers and predicted MR would not want power curtailed in PM position. I commented they were wrong, and this was a small step of a grand plan which I also support. GR contested for that position to prepare the ground for general election. He showed his development plan to people and proved to them it cannot be done unless he has powers and also a parliament who supports him. People gave GR the parliament he wants to get the power he wants. It is the skill of GR, not MR. People do not believe in MR, but they love him the work he done for the nation. However, people had to pay a price in terms of corruption associated with the clan of MR. People were happy to pay that price.

  • 1
    5

    Now people want GR to do a service for them. MR is not interested in any powers other than expecting Namal to be the PM first in 10 years and the the President in 15-20 years. As a young person, MR behaved same manner with young Anura as young Namal did 5 years ago. Namal will be matured, calmer and wiser in 15-20 years as happened with MR and Anura. Opposition is not good enough break this plan. I wholeheartedly support GR in this endeavour.

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