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Drafting of new constitution begins

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by C.A.Chandraprema

The drafting of the new constitution to replace the 1978 constitution has begun even before the 20th Amendment has been through the committee stage in Parliament. The Special Experts Committee to Draft a New Constitution headed by President’s Counsel Romesh de Silva has been allocated offices in the BMICH, and three senior officers of the Ministry of Justice have been appointed to the Secretariat of the Committee. Sittings of the committee have already commenced with meetings being held every Friday. Two formal weekly meetings have already been held.

The other members of the committee are President’s Counsel Manohara De Silva, President’s Counsel Sanjeewa Jayawardena, President’s Counsel Naveen Marapana, Prof. Nazeema Kamardeen, Dr. A. Sarveswaran, President’s Counsel Samantha Ratwatte, Prof.Wasantha Senevirathne and Prof.G.H.Peiris. The fact that this Committee has commenced work would have been headline news in normal circumstances but it has been completely overshadowed by the latest Covid-19 outbreak.

 For that matter, Covid-19 has drowned out the noise generated over the 20th Amendment as well. The government can be seen to be taking a very cautious approach to this Covid-19 cluster with whole villages and individual establishments being shut down at the slightest suspicion that an infected person may have visited the place concerned. Quite a number of false alarms have been reported but the government is proceeding on the basis that it’s better to be safe than sorry. There seems to be little doubt that the government agencies concerned will be able to get over this latest Covid crisis as well.

 Even though yahapalana theorists have raised a mighty caterwaul of protest claiming that the 20th Amendment will give rise to authoritarian rule, the 20A only restores the constitutional provisions that existed before the 19th Amendment, which essentially means that after the 20th Amendment, the President will have the approximately the same power that past Presidents J.R.Jayewardene, R.Premadasa, D.B.Wijetunga, Chandrika Kumaratunga, Mahinda Rajapaksa and even Maithripala Sirisena had. Even though the 19th Amendment removed some of the powers of the President, the yahapalana President Sirisena continued to enjoy those powers through other means and it’s only the incumbent President Gotabhaya Rajapaksa who has had to bear the full brunt of the 19th Amendment.

 

Yahapalana sleight of hand

 One significant way in which the 19th Amendment sought to truncate the President’s powers was by establishing the Constitutional Council which would have the final say in making appointments to important state positions. After the establishment of the Constitutional Council, the President cannot appoint members and Chairmen of Commissions set up by the 19th Amendment such as the Public Service Commission, National Police Commission, the Election Commission, and several other such commissions without the individuals to be appointed being recommended by the Constitutional Council. Likewise when it came to the appointment of Judges to the Supreme Court and the Court of Appeal, the Attorney-General, the Auditor-General and Inspector-General of Police and other such high state positions, any person appointed by the President to such positions had to be approved by the Constitutional Council. Thus either way, it’s the Constitutional Council that has the final say in making such appointments and not the President.

 Even though these provisions in the 19th Amendment were supposed to limit the powers of the President, they did not limit President Sirisena’s or the yahapalana government’s powers because the yahapalana political parties working in concert divided up the parliamentary government and the parliamentary opposition among themselves and established a complete hegemony over the Constitutional Council. It goes without saying that if the political backers and promoters of the President have complete and total control over the Constitutional Council, it’s the same as the President exercising those powers and that was the situation during the Sirisena Presidency. President Sirisena’s political setup enjoyed the same powers over high appointments that the political setups of his predecessors did.

 Another way in which the 19th Amendment sought to limit the powers of the President was by not allowing the President to hold any ministerial portfolios. Hence the pre-19th Amendment Article 44(2) of the Constitution which said that the President may assign to himself any subject or function and shall remain in charge of any subject or function not assigned to any Minister was repealed. Even though the 19th Amendment never expressly said that the President could not hold a portfolio, the repeal of Article 44(2) was supposed to mean that despite the fact that even under the 19th Amendment, the President continued to be the Head of the Government and the Head of the Cabinet he could not hold a ministerial portfolio. President Sirisena was not affected by this limitation because a transitional provision in the 19th Amendment allowed him not only to assign to himself the subjects and functions of Defence, Mahaweli Development and Environment so long as he holds the Office of President but also to determine the Ministries to be in his charge for that purpose. So all that President Sirisena had to do was to decide upfront which ministries he wanted. All Presidents do in fact decide upfront which ministries he would hold, so President Sirisena despite the 19th Amendment was able to do what all his predecessors did in this regard.

 

The genuine changes

To be fair, there were in fact a few genuine ways in which President Sirisena’s powers differed from those of his predecessors. The first and foremost of these was that the tenure of the presidency was shortened from six years to five years by changes made to Article 30(2). This was a genuine change and the 20th Amendment seeks to retain this without alteration. Another genuine change was the effective removal of presidential immunity by the 19th Amendment by means of changes made to Article 35(1) of the Constitution. Article 35(1) as amended by the 19th Amendment states that no civil or criminal proceedings shall be instituted or continued against the President in respect of anything done or omitted to be done by the President, either in his official or private capacity, provided that this shall not be construed as restricting the right of any person to make a fundamental rights application in the Supreme Court under Article 126 against the Attorney-General, in respect of anything done or omitted to be done by the President, in his official capacity.

 Making the President subject to fundamental rights litigation basically makes it possible to challenge any action that the President takes. In fact the 19th Amendment specifically stated that the Supreme Court shall have no jurisdiction to pronounce upon the exercise of the powers of the President only when it comes to declaring war and peace – which establishes that the Supreme Court can pronounce judgments on virtually everything else other than that one exception. President Sirisena was subject to this provision during his tenure and this was a genuine change made by the 19th Amendment. But it’s an unusual, and arguably counter-productive change. Even under the 1972 Constitution, the ceremonial President was designated the head of the Executive who was required to act on the advice of the Prime Minister. Article 23 of the 1972 Constitution stated that while any person holds office as president, no civil or criminal proceedings shall be instituted or continued against him in respect of anything done or omitted to be done by him in his official or private capacity.

 If one takes the Ceylon Constitution Order in Council of 1946, the Executive power was exercised on behalf of the British crown by the Governor-General who was required by convention as mentioned in Article 4(2) of that Constitution to act on the advice of the Prime Minister and Cabinet. Even though the Governor General was the representative of a titular head of state, even he was protected from litigation with the proviso that no act or omission on the part of the Governor-General shall be called in question in any court of law. We see the same protection accorded to the President of India. Article

53(1) of the Indian constitution says that the  executive  power  of  the  Indian Union  shall  be vested  in  the  President. Article 77(1) states that  all  executive  action  of  the  Government  of India  shall  be  expressed  to  be  taken  in  the  name  of  the President. Article 74(1)  requires the Indian President to act on the advice of the Prime  Minister and the  Council  of  Ministers  and the question whether any, and if so what, advice was  tendered  by  Ministers  to  the  President  cannot  be inquired  into  in  any  court. Under Article 77(2) of the Indian constitution, orders and other instruments made and executed in the name of the President shall not be called in question on the ground that it is not an order or instrument made or executed by the President.

 Thus we see that in the 1946 Ceylon Constitution Order in Council, the first Republican Constitution of 1972 and the second Republican Constitution of 1978, and even in the Indian Constitution, the actions of the head of the executive had always been given immunity from litigation. If the actions of the executive can be subject to litigation, then it can be argued that the final arbiter if not the wielder of executive power will be the judiciary and not the executive. The immunity of the President from suit was removed on the argument of limiting the President’s executive power. That gives the impression that before the 19th Amendment was passed there were no limits on the President’s executive power.

 

President never had unlimited power

 Two Supreme Court cases presided over by former Chief Justice Sarath N.Silva indicate otherwise. The 2006 landmark judgment in Nallaratnam Singarasa vs the Attorney General stated as follows:

“The President exercises the executive power of the People and is empowered to act for the Republic under Customary International Law and enter into treaties and accede to international covenants However,… such acts cannot be inconsistent with the provisions of the Constitution or written law. This limitation is imposed since the President is not the repository of the legislative power of the People…. such a treaty or a covenant has to be implemented by the exercise of legislative power by Parliament and where found to be necessary by the People at a Referendum to have internal effect…where the President enters into a treaty or accedes to a Covenant which is “inconsistent with the provisions of the Constitution or written law”… such act of the President would not bind the Republic qua state….”

Then there was the famous Waters Edge judgment of 2008 (Sugathapala Mendis and Another vs Chandrika Kumaratunga and Others) where it was stated as follows:

 “The principle that those charged with upholding the Constitution – be it a police officer of the lowest rank or the President – are to do so in a way that does not “violate the Doctrine of Public Trust” by state action/inaction is a basic tenet of the Constitution which upholds the legitimacy of Government and the Sovereignty of the People. The “Public Trust Doctrine” is based on the concept that the powers held by organs of government are, in fact, powers that originate with the People, and are entrusted to the Legislature, the Executive and the Judiciary only as a means of exercising governance and with the sole objective that such powers will be exercised in good faith for the benefit of the People of Sri Lanka. Public power is not for personal gain or favour, but always to be used to optimize the benefit of the People. To do otherwise would be to betray the trust reposed by the People within whom, in terms of the Constitution, the Sovereignty reposes. Power exercised contrary to the Public Trust Doctrine would be an abuse of such power and in contravention of the Rule of Law.”

 The Water’s Edge judgment also quoted a previous 1998 judgment by Justice Mark Fernando, Karunathilaka v Dissanayake which stated as follows: “The immunity conferred by Article 35 is neither absolute not perpetual….Article 35 only prohibits the institution (or continuation) of legal proceedings against the President while in office; it imposes no bar whatsoever on proceedings against him when he is no longer in office…To hold otherwise would suggest that the President is, in essence, above the law and beyond the reach of its restrictions. Such a monarchical/dictatorial position is at variance with (1) the Democratic Socialist Republic that the preamble of the Constitution defines Sri Lanka to be, and (ii) the spirit implicit in the Constitution that sovereignty reposes in the People and not in any single person.”

 

Keeping yahapalana overkill in check

 All these cases were heard long before the 19th Amendment. Thus the proviso to article 35(1) introduced by the 19th amendment enabling fundamental rights cases to be filed against the AG over actions taken by the President was clearly a case of yahapalana overkill. The removal of this proviso and the restoration of the pre-19th Amendment Article 35 does not turn the President into an autocrat. It just provides the executive branch of the government the leeway to exercise the powers vested in the executive. While it’s true that former presidents in Sri Lanka have been accused of being authoritarian, the same accusation has been levelled at former Prime Ministers like Mrs. Sirima Bandaranaike. Much the same thing was said about Mrs. Indira Gandhi as well.

 The person holding the title and functions of head of the government can be as authoritarian or as liberal as he or she is inclined to be. In fact it may be argued by some that Prime Ministers have even greater potential and incentive to be authoritarian because no Prime Minister in the world seems to have term limits whereas almost all presidential systems do have term limits. Even the 20th Amendment will retain the two term limit for the President. Lee Kuan Yew was a Prime Minister but he too was accused of being authoritarian. It just so happens that Presidents tend to attract more charges of authoritarianism than Prime Ministers even though everyone knows at the back of their minds that Prime Ministers who are heads of government can be as every bit as authoritarian as any President holding the position of head of government.

 It’s interesting to speculate on why this is so. Is it because the President sits and does his work in grand isolation whereas the Prime Minister sits in Parliament with everyone else and is available to be heckled and booed at? Is it because the President once elected, is very difficult to remove whereas the Prime Minister (at least theoretically) can be thrown out at any moment through a Parliamentary revolt? It has to be noted that under the presidential system introduced by the 1978 Constitution, the President cannot rule without the support of Parliament. In 2001, at a time when President Chandrika Kumaratunga possessed all the powers of J.R. Jayewardene’s presidency, her party lost a parliamentary election and lost her majority in Parliament. She gave all powers to the newly elected Prime Minister Ranil Wickremasnghe and took a back seat for a while. Despite all the hype about authoritarian Presidents, the fact is that both Presidential heads of government and Prime Ministerial heads of government that this country has had in the past, have been completely dependent on Parliamentary majorities to govern. No President can override Parliament even under the pre-19th Amendment 1978 Constitution.


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JVP Select Committee member alleges Indian hand in Easter Sunday blasts

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Party leaders in parliament have asked the government several times to table it in the House but the government has not yet done so. We heard the media spokesperson of the Attorney General stating on TV that the Attorney General too has not yet received the report. Colombo Archbishop Malcolm Cardinal Ranjith says that he too has not received a copy yet. The President is keeping the most important commission report of his life to himself. We believe that people have the right to know what’s in it and it should be released. There is a yet-to-be-identified force behind the Easter attacks.

by Saman Indrajith

JVP Central Committee and Politburo member and former Kalutara District MP, Dr Nalinda Jayatissa, says that it was India’s Research and Analysis Wing who masterminded the Easter Sunday terror attacks and there was no substantial evidence to prove any ISIS link to the Zahran Hashim’s group that carried out the attack.

The final report of the Presidential Commission of Inquiry (PCoI) into the Easter Sunday attacks should clear this situation. If not, the government cannot escape the blame of a cover-up, Dr Jayatissa said in an interview with The Sunday Island.

Excerpts:

Q: The final report of the Presidential Commission of Inquiry (PCoI) into the Easter Sunday attacks was handed over to President Gotabaya Rajapaksa. While the government keeps on saying that it would be released, the opposition keeps on demanding to see it. You were a member of the Parliamentary Select Committee (PSC) that investigated the issue. The PCoI took a longer time than PSC to complete the investigation. Do you think that PCoI report may at least identify those truly responsible for the heinous crime that killed 268 and wounded more than 500?

A:

The report yet to be released is that of the most important PCoI that President Gotabaya Rajapaksa had appointed. It is the most important because the Easter Sunday carnage was the event that brought him to politics. He was not looking to come into active politics before that. That incident helped them to come to power. They came to power promising to probe the Easter Sunday terror attacks and punish those responsible. There had been lot of difficulties and limits to the PSC probe. Those now in the SLPP were then in the United Opposition and they boycotted the PSC. They created many obstructions. They even shouted that we should not summon intelligence and military officers saying that our action would result in exposing those officers’ identities and put them in danger.

But the PCoI did not have such limits. They summoned more officers of both intelligence agencies and security establishments and some of them later gave TV interviews too. However, in our investigation we identified who had failed to prevent the terror attack and why and how such extremist groups came into existence in this country. We think that a PCoI should do better than a PSC because all intelligence officers, CID and Terrorist Investigation Division officers, came before the PCoI and testified. We hope that the PCoI report will expose who was actually behind the terror attacks other than Zahran and his colleagues who exploded themselves. Otherwise the report will not have anything new.

This report would be different and unique only if it exposes who were really behind Zahran’s group. The PCoI report was handed over to President Rajapaksa on Feb 1. Thereafter three cabinet meetings have been held but yet the report has not been placed before the Cabinet. We do not accept the excuse that it’s too large a report to be submitted to the Cabinet. That’s a lame excuse.

Party leaders in parliament have asked the government several times to table it in the House but the government has not yet done so. We heard the media spokesperson of the Attorney General stating on TV that the Attorney General too has not yet received the report. Colombo Archbishop Malcolm Cardinal Ranjith says that he too has not received a copy yet. The president is keeping the most important commission report of his life to himself. We believe that people have the right to know what’s in it and it should be released. There is a yet-to-be-identified force behind the Easter attacks.

We heard former CID Senior DIG Ravi Seneviratne saying in his testimony that there must be someone above Zahran Hashim who masterminded the attack. SSP Shani Abeysekera was the Director CID at the time of the Easter Sunday attack and was also the first officer tasked with conducting the investigations. He has said that Zahran was not the mastermind because the leader of a terrorist group has never been a suicide bomber blasting himself in any terrorist attack anywhere in the world. So the President is bound by the responsibility of revealing the true mastermind in this incident.

Q: Investigators are of the opinion that the Easter Sunday attacks had the support of a foreign force. Do you also think so?

A:

I saw on TV last week MP Dilan Perera, who is a senior of the SLFP and a former minister, stating that there was direct or indirect involvement of India behind the Easter Sunday attacks. I consider it a serious statement. If a government MP says that India was behind the attacks, then there should be some basis for his statement. Apart from that, there is other information promoting the same suspicion being discussed in society. There are reasons for that. It was Indian intelligence who provided the first piece of comprehensive information about the attack weeks prior to that incident. Their information said that the Indian High Commission in Colombo was also one of the targets.

Yet it was revealed at the PSC that the Indian High Commission never asked for additional security despite the threat. It was also revealed at the PSC that no additional security has been accorded to the Indian Defense Secretary who had suddenly visited Sri Lanka for a one-day visit on April 08, 2019. Those who were involved in this attack had not been to Middle Eastern or other countries where ISIS had a presence. They had only been to India. In addition, Zahran’s group did not have an armoury. There was a stock of weapons that was found at Wanathavillu. A detonator with the least capacity had been used for the test explosion of a motorcycle at Kattankudy four days before the Easter Sunday attacks.

It was a weapon that had been taken away in Oct, 2018 from Vavunathivu that was later used to shoot at Kabir Hashim’s secretary at Kegalle in March 2019, five months later. That shows that the Zahran’s group did not have explosives or firearms in large quantity as it is in the case of a terror group. Even after the terror attacks, the CID or any other security agency has not been able to find any armoury belonging to them until now. Even in the PCoI facts had been revealed about the hotel rooms and banquet halls that had been hired by the Zahran’s group but no revelations about any weapons or explosives. So a group which possesses very little fire power carries out terrorist attacks exploding eight very powerful bombs resulting in such a loss. Then there should be another force behind them to supply what was used. In the subsequent Sainthamaruthu attack, 16 persons were killed. Pualsthini Rajendran alias Sarah Jasmine, who survived that attack, fled to India by a boat from Mannar. However, we have not yet seen the Sri Lankan government asking from India to extradite her despite the fact that she has lot of important information.

Indian National Security Advisor Ajith Doval visited this country and then its foreign minister Jaishankar visited Sri Lanka but not on any of those occasions had our government asked India to hand over Sarah to our investigators. President Rajapaksa soon after his election visited India. Prime Minister Mahinda Rajapaksa conducted many zoom and video call conferences with his Indian counterpart Modi. We can also see the Indian High Commissioner in Colombo playing a very influential political role. But we have not seen the Lankan government asking India to hand over Sarah to our investigators. Not even the PCoI asked for her.

As we know, Zahran’s wife had told the PCoI that Sarah knew more about the dealings of the Zahran group than she because Sarah was the wife of the suicide bomber who had attacked the St. Sebastian’s Church in Katuwapitiya. When this question was posed to Public Security Minister Sarath Weerasekera recently, he replied that before asking for the extradition, we must make sure that Sarah was still alive and DNA testing on Sarah was still being done. That is not true because giving evidence before the PCoI on July 21, 2020 the then Ampara SSP Samantha Wijesekera testified that they conducted DNA tests on those who had been killed at Sainthamaruthu but Sarah was not among the dead.

Sarah’s mother giving evidence before PCoI stated on July 25, 2020 that Sarah did not die but fled. There is no need to conduct DNA or delay. The Public Security Minister’s position is only a part of a campaign to cover up for Sarah who knows India’s involvement. It is further established when former Minister Dilan Perera clearly stated that India was behind the Easter Sunday attacks.

Q: None who attended the PSC mentioned any Indian involvement. Testimony of some of those who gave evidence before the PSC was taken in camera. Has anyone testified before the PSC of any Indian involvement?

A:

No. It is Dilan Perera’s recent statement on TV that said so clearly in public. But anyone can guess that an Islamic outfit of the size and capabilities of Zahran’s group alone cannot organize a series of terror attacks of this nature. They had the backing of a force which had access to high powered explosives, intelligence and technology. It is up to the President or the PCoI to reveal the real perpetrators. If the upcoming report too says that there were security lapses because of the rivalry between Ranil Wickremesinghe and Maithriapala Sirisena, and that Hemasiri Fernando and Pujith Jayasundera could not prevent the attacks even with information in their hands, then it is clear that the government wants to protect the real culprits of this crime.

Q: Suppose that theory of Indian connection is true. Then how could it be viewed against what we are seeing today in politics where Indian involvements in the Colombo port and many other places in the country have raised many concerns?

A:

Actually this incident has more political repercussions than military or security issues. From 2008 to 2015 China established its presence in the Indian Ocean. It acquired Port City, CICT terminal, six acres of land next to the Colombo Harbour and involved itself in development projects. China included Sri Lanka in its One Belt One Road program. This raised concerns of not only India but also of the US. They wanted to send Mahinda Rajapaksa home and did so. Mahinda Rajapaksa himself told Port unionists that it was India that sent him home in 2015. However, his successor Wickremesinghe-Sirisena government too did not deliver the expected results. That was why India got its intelligence to mastermind the Easter Sunday attacks.

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A march, a tweet, some angst and mild sabre-rattling

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by Malinda Seneviratne

If something deserves to be called ‘Event of the Week’ it would be the ‘Pothuvil to Poligandy (P2P) March’ which ended on Sunday, February 7. At the end of the march there were around 2,000 people. Most significantly, it was an event that saw the participation of both Tamils and Muslims. The basic differences in grievances were obviously negated by a felt need to be united against, let’s say, a perceived common enemy, the Government to some, ‘Sinhala Chauvinism’ to others.

It marked also, as D B S Jeyaraj has mentioned in his weekly column, a return of sorts to non-violent protests. Now it is not that all Tamil and Political action was violent. There have been all kinds of non-violent protests even during the conflict. However, this was a sustained, determined and even colorful affirmation of a politics that harked back to a different time. ‘The Satyagraha of 1961,’ is what Jeyaraj was reminded of. There are two interesting statements that are related to this march. First we had the government withdrawing STF security assigned to TNA MP M.A. Sumanthiran. Sumanthiran retorted, ‘if something happens to me the Government will be held responsible.’ Now the agitation of the man does seem misplaced considering that he was involved in a five-day march (ok, he may not have be ‘on the moving spot’ all five days, but still! Was he not worried about security? Also, Sumanthiran has openly supported the LTTE, indulged heavily in Eelam-speak as well as celebration of the terrorists. He would do well to reflect on the fate of others who came before who did the very same thing, especially the leader of the TULF, Appapillai Amirthalingam. Amirthalingam spouted rhetoric which was like an endless nutritional feed to extremism. The beast, in his insatiable hunger, at one point did much more than bite the hand that fed it. One hopes that things don’t snowball to a repeat of all that, but Sumanthiran, having seen what happens to hands thrust into fires ought to keep his in his pockets. Nevertheless, withdrawing security granted on a threat perception is an overreaction.The second is a hilarious tweet from the tweet-happiest diplomat in Colombo, Alaina B Teplitz: ‘#Peacefulprotests is an important right in any #democracy and significant, legitimate concerns should be heard. I saw Tamil media coverage of the march from Pottuvil to Point Pedro and wondered why it was not more widely covered by Colombo-based media?’She has a point. The English, Sinhala and Tamil media have different preferences that have little to do with newsworthiness. Perhaps it is all about the target audience; after all there’s a reason why entertainment value has framed reporting and presentation, why sensationalism has become an important driver and so on. This holds for different media houses as well; owners have agendas. Nevertheless, there is a serious problem if matters of political significance are down-played or ignored altogether, one has to question the sense of responsibility of the particular media institutions.On the other hand, we cannot ignore the ‘Season of Vexatious Persecution’ (i.e. the annual human rights circus in Geneva) which is all about whipping things up from December to February. Now it could be a coincidence that P2P was organized at this particular moment, but few will buy it considering the personalities involved and their political history. The Teplitz tweet only serves to add credence to the view that this was just another side show of the above mentioned circus. The tweet also indicates an important fact: Teplitz is running out of slogans. Before we get to that, let’s have a say on the key words — the hash tagged ‘peaceful protests,’ ‘democracy’ and ‘legitimate concerns.’ It is downright laughable for a US diplomat to talk about such things given that country’s absolute rubbishing of such things, domestically and internationally. That aside, there’s the fact that Teplitz has been pained to the point that she has to whine about media coverage. Is it that a pet project directly or indirectly sponsored, planned and executed, didn’t move as many Tamils and Muslims as was envisaged? We didn’t hear Muslim and Tamil leaders complaining about news coverage. Have they deferred that kind of task to Teplitz? If that’s the case, who is the pawn or who are the pawns here? Is it Teplitz? Are they Tamil and Muslim leaders who in their wisdom believe that the best bet to get grievances, real or imagined, sorted and aspirations, reasonable or outrageous, fulfilled is to support the US in securing strategic objectives in Sri Lanka? If such happens (not a certainty, certainly) do they believe they’ll get some crumbs off the table? And what does all this have to say about the agency of Tamil and Muslim citizens? Are they too pawns? Indeed, are all peoples of all communities pawns in games where they are sacrificed at will? Jeyaraj sees in P2P ‘a remarkable show of solidarity and unity’ between the Tamil and Muslim communities. He does exaggerate about the numbers (tens of thousands, he says) and deliberately introduces the ‘Tamil-speaking’ qualifier which Tamil nationalists have often used to rope in rhetorically ‘The Muslims’ to their various political projects. Jeyaraj remembers 1961 but has forgotten the late eighties when M H M Ashraff (in)famously stated that even if Prabhakaran abandons Eelam, he would not. He dialed down the rhetoric over the next decade, but what did Prabhakaran do to the (Tamil-speaking) Muslims, has Jeyaraj forgotten? The LTTE ethnically cleansed the Jaffna Peninsula of Muslims. The LTTE turned one in ten Muslims into refugees, slaughtering dozens, driving them off their homes, seizing properties etc. Muslim leaders cannot pretend to be unaware of that history. Muslim Affairs, if you will, featured in other ways over the week. Recently returned to Parliament, Ven Athureliye Rathana Thero presented a private member’s bill to repeal the Muslim Marriage and Divorce Act. Justice Minister Ali Sabry who prior to entering Parliament championed the notion ‘One Country, One Law,’ responded by saying ‘steps are being taken to amend the Muslim Laws and that a Cabinet Paper had already been presented in that regard.’Elaborating, Sabry said that the Cabinet Paper sought to amend the minimum marriageable age of Muslim girls to 18, to permit women to act as Kathis and also to make it necessary to get the consent of Muslim women when they get married.That’s it? That makes it ‘One Country, One Law’? Sabry must do a serious rethink on what he says and does and the meaning of the terms he uses (so loosely!).

He is correct when he says that ‘if the personal laws were to be abolished, all the personal laws such as Muslim Laws, Kandyan law and Thesawalamai Law should be abolished altogether.’ ‘Through a social discussion,’ he adds. There’s been enough social discussion, he knows this. One-country-one-law would certainly call for abolishing all customary laws. His concern seems to be limited to correcting existing laws that privilege Muslim men over Muslim women. That’s not even scratching the surface of the problem though!

Here are a question for Sabry: Are there plans to abolish polygamy (can’t have it for some and not others, no?)? Here’s another: The Special Parliamentary Committee on Extremism appointed by the previous administration presented a report in February 2020 recommending extensive measures with respect to Muslim laws as well as ‘educational’ institutions — have you read it? Are you in agreement? If so, what have you done so far? Are you planning to defer everything to the experts tasked to draft a new constitution? What are those experts doing by the way? When will we see a draft? And finally, what exactly do you understand by ‘One country, one law’? Let’s have some answers, please.

This week also saw Wimal Weerawansa making some news. He openly advocated a prominent and even principal role for Gotabaya Rajapaksa in the SLPP leadership. He was taken on by the General Secretary of the SLPP, Sagara Kariyawasam who questioned Wimal’s rights to talk of the SLPP since he’s not a member. Wimal retorted that people in the SLPP talk of other parties. Sagara wondered what Wimal’s fate would be had he and his party contested independently. Wimal pointed out that Sagara, a national list MP, hadn’t even contested.

Light banter at best. Some sections of the Opposition have salivated, naturally. They believe and talk of ‘a rift!’ in the Rajapaksa camp, friction between the brothers (Wimal’s antipathies to Basil being well known).Too early to conclude such of course, but as debating points go, both Wimal and Sagara have scored. What this ‘scoring’ says about the future of the SLPP is of course left to be seen. There’s bound to be differences of opinion in any political coalition. If everyone was on the same page there wouldn’t be a coalition in the first place. You win some, you lose some — this is something that junior or weaker partners know very well (ask Prof Tissa Vitarana of the LSSP).

The so-called ‘smaller parties’ did make a lot of noise regarding the East Container Terminal issue. It seems, as of now, that the ‘big party’ listened. Whether they’ll still have the ‘big ear’ regarding the West Container Terminal is left to be seen. On the other hand, we know the story about the dog and the tail, no offense to canines or tails.

Politicians and political parties are about power and about elections. If, for example, Champika Ranawaka and the Jathika Hela Urumaya, having broken ranks with the UPFA decided to go it alone and not join the UNP-led coalition as they did, where would Ranawaka be today, one might ask. Indeed is it not such questions that persuaded him to resign from the JHU and become a 100% SJBer, one could also ask. There are no elections in sight, but when they do come around, all parties big and small will revisit ‘coalition’ and calculate the impact of decisions (and rhetoric) on electability.

For now, though, noises can and will be made. The likes of Wimal would have to pick their battles and select decibel levels. That said, his point about the distance between president and parliament on account of political sway within the party is valid. It goes without saying that the effectiveness of a program sometimes comes down to parliamentary weight which of course can be deployed best if the executive has a degree of control. The President either doesn’t have it or cannot count on it or imagines he doesn’t need it. He could ask his brothers, both veterans in this respect. That however might mean give-and-take, if we were to believe the notion that the brothers are bound by blood but not about vision.

India, meanwhile, is not happy, going by statements issued regarding the East Container Terminal. India cannot be happy about the ‘Chinese Footprint’ whose size was considerably expanded by the previous government by virtually handing over the Hambantota Port to China. India cannot be happy about energy projects given to the Chinese. India cannot be happy about the scheduled visit by Pakistan Prime Minister Imran Khan and MoUs that are said to be signed and/or renewed.

India speaks of Sri Lanka ‘reneging’ on an MoU. However, India forgets that MoUs are not exactly agreements, signed after crossing the t’s and dotting the i’s. They are by definition non-binding and amenable to change. Circumstances can change and changing circumstances have to be taken into account.

If an agreement causes political instability it would be foolish for a government to go ahead with it. If, prior to inking an agreement, one party (India in this case) stands with a country that seems hell bent on bullying Sri Lanka (the USA in this case), then it would be silly for that party to assume that the counterpart be oblivious to such developments. If one party has in the part ‘reneged’ (as India has with respect to the Indo-Lanka Accord which from the get-go was a product of shamelessness bullying and moreover was heavily slanted in India’s favor), then that party should be careful before using the word.

And on the subject of ‘foreign affairs,’ we have Dinesh Gunawardena claiming that Sri Lanka is not afraid of the soon to be tabled resolution in Geneva. There are 47 members in the Human Rights Council (HRC). The Minister of Foreign Affairs cannot be saying ‘the majority are with us.’ The brave words could probably mean ‘we expect this, we know the consequences, we know it’s the work of nations wallowing in a cesspool of bias, we know that they’re hinting at sanctions, we know what the UN itself has found out about the impact of sanctions in other countries, especially Venezuela in recent times, we know there’s talk of taking things to the General Assembly and then the Security Council, we know who our friends are and more importantly who our enemies are, and we know what it takes to secure sovereignty to the extent possible.’ Dinesh Gunawardena might not elaborate in the above manner. After all, he is required to be ‘diplomatic’ although he is not averse to calling a spade a spade. ‘Geneva’ is just over a week from now. A resolution is likely to be tabled. It is likely that it will be passed. Most importantly, it will show us what India’s ‘neighborhood first’ foreign policy is really about.

malindasenevi@gmail.com. www.malindawords.blogspot.com.

 

 

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Politics

Dayan Jayatilleka and the Opposition Reset

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Hobbes and Locke:

When both the Sinhala Alt-Right and neoliberal Right start attacking you, you know you’re occupying a centrist moral high ground. Appointing Dr Dayan Jayatilleka as the Samagi Jana Balavegaya’s Senior International Relations Advisor – no Junior Advisor as of yet – portends, I think, a world of possibility, for an Opposition bruised and battered by a quarter-century of self-manslaughter. The appointment as it stands doesn’t really amount to much, unless you place it in its proper context: what we have is a key theoretician, the only theoretician who can pose a credible enough challenge to what the government is doing. I do not necessarily agree with everything he has said and written over the last few months, but I do agree that the Opposition needs a radical reset. And it’s becoming more and more clear that the man best capable of handling the surgery to see that through is Dr Jayatilleka.

The problem with the SJB is that it is acting more and more like a many-headed hydra facing a rapacious but determined behemoth. To match the behemoth, the Opposition must meet it headfirst; it must critique the state’s more questionable actions while matching its better ideals. In three areas it should seek to go beyond the UNP’s paradigm: domestic economics, foreign relations, and the constitution. It’s no coincidence that Dr Jayatilleka’s critique of the government rests on these three areas, and it’s no coincidence that it’s from those vantage points that his critics – from BOTH the Alt-Right and the neoliberal Right – continue to attack and denigrate him. The first strategy must therefore be to purge the Opposition, not in the old authoritarian sense, but in the sense of removing remnants of what Dr Jayatilleka calls Ranilism: that failed neoliberal, anti-Presidential yahapalanist policy.

The yahapalana neoliberal project failed, but not because Sri Lankans are averse to a liberal polity. It all depends on what kind of liberal policies the yahapalana government was trying to dish out. At the centre of its project was a fatal disjuncture between its populist roots and its avowed policy of “liberalising and globalising” (Mangala Samaraweera, Budget Speech 2017). People voted for a social market economy; what they got was anything but. In other words the yahapalanists failed to reconcile the timeless rift between social liberalism (with its emphasis on state interventionism) and economic liberalism (with its emphasis on the rollback of the state). High on principles, and lofty ones, it floundered. For that reason, we cannot go back to 2015. We should not try to do so.

Given this, how should the SJB craft its policies in those areas? On the domestic economic front, the SJB must abandon, totally and considerably, that earlier policy of liberalising and globalising. It must think of production, since the biggest, most persistent problem facing this country’s economy today is its absence of a proper manufacturing base. It cannot hope to achieve this with piecemeal solutions; there must be state intervention, what Dr Dayan calls “a new, New Deal, Rooseveltian-Keynesian.” I am no economist, so I can’t really detail the specifics of this new New Deal. I do know, however, what it should not be: the old UNP-yahapalanist neoliberal paradigm. The new policy must be progressive, state-led though not state-monopolised, and driven by local manufacture.

Of course, in all fairness to Dr Jayatilleka, I should point out that this may not necessarily be what he has in mind or what he advocates. That is why I disagree with him when he ponders the impracticality of import controls, since local production requires “imported inputs, while a middle-class society in an MDG country, cannot sustain itself without imported consumer goods, including essentials.” Far from being a minus point against restrictions, I believe the very fact that we import consumer goods, even for local production, necessitates a cohesive substitution strategy that, while directed by the state, should be phased out.

On the foreign policy front, relations with India must be patched up immediately, while the anti-China lobby must be discouraged. To be fair by the current regime, notwithstanding the anti-Indian comments of certain Ministers it has more or less attempted to stick to its “India First” policy, even attempting the impossible: the lease-out of the East Coast Terminal to an Indian investor in the teeth of opposition from the government’s own ranks.

I don’t think it feasible or advisable, however, for the regime to have gone to such lengths to prove its India First credentials, and to Dr Dayan’s credit he critiques it extensively as well: it will, he observes, antagonise China, forcing it to try leaving behind a bigger footprint on the country. Indian Foreign Minister Jaishankar’s interlude with Tony Blinken makes it clear that Indo-US ties will only strengthen across the board against the China Factor under the new administration in Washington. Sri Lanka simply cannot afford to ignore this, but then it must not use geopolitical imperatives to go overboard when dealing with neighbours.

A clear consensus has arisen, especially among the hardliners in the regime and nationalists within the Opposition, that the ECT deal should not have gone ahead. Dr Dayan is agreed on this point, but to what extent is the Opposition in the SJB also agreed to it? We’re getting mixed signals from Sajith Premadasa’s party. Symbolically enough the tweets and messages congratulating the government vis-à-vis the ECT deal have been, not from any government figure, but from the Opposition. The SJB has mostly tilted between reluctant acquiescence (they were with the UNP when the agreement was drafted, after all) and hysterical rhetoric (Harin Fernando’s claim that the Adanis to whom the ECT was leased will take business from Sri Lanka to a port they have developed in Mundra, a claim that was shown to be untrue by N. Sathya Moorthy in a report on the deal). This is not how it should be.

The ECT deal, however, isn’t all there is to what course Sri Lanka should take regarding its foreign policy. Another issue is Geneva, the UNHRC bomb. Dr Jayatilleka is adamantly of the belief that inasmuch as the government blundered by withdrawing from Resolution 30/1, it was the yahapalana regime’s fault for cosponsoring it in the first place.

This runs counter to elements within the UNP and even SJB that still view Resolution 30/1 as a foreign policy success; Harsha de Silva’s lengthy though well detailed speech in parliament two months ago on the question of the government’s foreign policy did the rounds in every quarter, but then ended up referring to the March 2015 Geneva session on a positive note. Not so, Dr Jayatilleka warned not too long afterwards: any reform-and-reset program in the Opposition must let go of the belief that Resolution 30/1 was a success, and recognise it for the unmitigated disaster it was.

On the constitution front, the way forward for the Opposition seems clear: it must abandon any rhetoric of getting rid of the Executive Presidency. For Dr Jayatilleka, the problem with the 20th Amendment isn’t so much the fact that it restores the Presidency as it is the degree to which it entrenches it. There is a clear difference: the objective of any practical-minded and national Opposition, he implies, must be, not to throw the baby out with the bathwater, but to retain the baby sans the bathwater. Ergo, constitutional reforms must a) not abolish or substantively reduce the powers of the EP, and b) go as far as permissible and practical vis-à-vis devolution of power, within and not beyond the 13th Amendment.

Sri Lanka’s political landscape, as it rests, is occupied by Lockean liberals and Hobbesian sovereigntists. The former are high on ideals, low on execution, while the latter are all for execution, not so much for ideals. To take a middle-ground between these two must be the aim of every self-respecting Opposition, and it seems as though Dr Jayatilleka has, despite my reservations with some of his policy recommendations, got it. We need an alternative to both neoliberal think-tanks and ultranationalist-technocratic fora. I believe the SJB has what it takes to go beyond its neoliberal roots, though I fear I’ll be proven wrong.

The solutions to Sri Lanka’s predicament must come from a left-of-centre, even Marxist, position; I believe in taking the latter course, but I also know what is practical and what is not, at least in Sri Lanka. The SJB does not stand out as a Marxist party, but then nor does the SLPP. Yet it must adroitly escape its neoliberal past, and for that, Dr Jayatilleka’s policy recommendations must be, if not unanimously, then at least considerably endorsed by the upper echelons of the party. I mean not just Sajith Premadasa, but also Harsha de Silva, Eran Wickramaratne, Buddhika Pathirana, Rajitha Senaratne, and Ajith Perera.

These ex-UNPers must realise that the old centre-right neoliberal paradigm no longer works. They must realise, in what they say and what they do, that such a paradigm must never be tried or tested out again. If getting the SJB and its officials to undergo this radical reset is all he does, I believe Dr Jayatilleka will have done his part. To reiterate yet again: there must be a purge, so that the SJB doesn’t end up as GR Lite or, worse, UNP Lite.

The writer can be reached at udakdev1@gmail.com

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