Focus on Rights

No greater crime than this occurs

By Kishali Pinto Jayawardene

When King Lear fa-mously remarked, quoting Aristotle that "nothing will come of nothing", he vastly mistook the matter. As any citizen of this country would tell you with regard to constitution making, the present Sri Lankan constitution has failed to fulfil the aspirations of the people.

We have seen over the past five years that it was a botched and hopeless constitution making, for which not only a shortsighted and compulsively confrontational Government but also an opportunistic Opposition is to be blamed. We have seen this whole process in a fantastic and unparalleled spectacle before the bemused eyes of a citizenry this week. The Bill repealing and replacing the Constitution was presented to Parliament amidst resent and disagreement, where a proposed Constitution was certified as being "urgent in the national interest" .It was skillfully and audaciously brought before the provisions of Constitutional law in order to avoid discussing this most vital document before the judiciary and the people.

It was a constitutional fraud that took place this week and it is entirely without doubt. For six months, discussions were had on the proposed Constitution between political parties, whereas the people were not informed with regard to the contents of these talks. Instead, speculation ran wild, based on newspaper reports and hearsay. In that background, it would have been bad enough if the revised Constitution Bill had been publicised a few days before and then brought before the Supreme Court under Article 120(b) of the Constitution which, by mandating that it would be passed by a two thirds majority and submitted to a Referendum, takes the authority to do anything out of the hands of the Supreme Court.

.Alternately, it would have been bad enough if the Constitution Bill had been suddenly brought before the Court but the people given the opportunity to make substantive representations on the contents of the Bill. It is however, the reprehensible combination of these two negative factors that lay the Government open to a fundamental breach of faith.

And for those who would scoff at questions of process and maintain that the end justifies the means, the answer is clear and simple. Process is fundamental to the issue. Process is indeed what the entire system of justice in this country is founded on, the promise that justice should not only be done but must be seen to be done. These are not principles that can be thrown casually to the winds each time individuals feel that they have been marked by destiny to change a system, constitutional or otherwise, come what may. During the times of Junius Richard and his successors, the sight of ordinary Bills being rushed through the courts and Parliament without proper discussion of their contents, had been a common sight. It remained however for Chandrika Bandaranaike Kumaratunge to apply the same reasoning to a Constitutional document and bring about the entirely bizarre sight of indignant lawyers and citizens protesting before the Supreme Court regarding a reference of the Third Republican Constitution Bill which no one had been able to properly study. And incidentally result in a curious combination of bedfellows in the Court with liberal intellectuals and activists joining forces with the Sihala Urumaya and the Maha Sangha to oppose the reference.

All this is not to say that the new Constitution is entirely devilish. Indeed, if one divorces the clauses relating to contentious issues of devolution and connected questions from the document, there would be consensus that the proposed provisions relating to fundamental rights and the independence of the judiciary, if not entirely perfect, are undoubtedly better than what exists at present. The problem is that these were points lost in the indignation stirred up at the manner of its presentation, a furore that could surely have been avoided despite arguments that the time factor prevented a different course of action.

And if the reference of the Constitution Bill to the Supreme Court was problematic, more so is the Seventeenth Amendment to the Constitution changing the electoral process in the country. Indeed the mala fides of the Government in their ongoing exercise of constitution making had become so bad that civil rights activists warned Thursday night of attempts to bring this Bill as well hurriedly before the Supreme Court on Friday as a Bill urgent in the national interest, readied themselves for arguments that such a Bill, by fundamentally altering the existing systems of proportional representation, would have to be brought before the people by a Referendum as well as passed by a two thirds majority in Parliament. A fundamental objection underlying their challenge was that a Bill changing the electoral process in such an important manner cannot be certified as an urgent Bill and rushed through the judicial process just two weeks prior to the date on which Parliament is mandated to be dissolved in terms of the Constitution. As it turned out, the Bill would now come before the Court during the coming week. Reportedly, it brings in a Parliament consisting of two hundred and ninety eight members of which one hundred and sixty eight members are to be elected on the first past the post system, hundred are to be elected on district wise proportional representation and thirty on the national list. This Bill too has not been made public as yet.

Ultimately, it is a matter of profound regret that all this argumentative constitutional reforms should come about with scarcely a week passing since the first death anniversary of Neelan Thiruchelvam. Out of the cacophony of sound coming from the Diyawanna Oya by politicians governed so pitiably by self interest and nothing else, his might have been the voice voicing a measure of agony at the appalling blatancy with which a Constitution is being rammed down the throats of the Sri Lankan people. For the inherent dangers of what took place this week would have been all too apparent to a mind such as Neelan Thiruchelvam's and his presence might have given the crucial edge to a saner alternative. All this is, of course, to hypothesize. The reality is that one year has passed since Neelan Thiru-chelvam's death and the country is now seeing the presentation of a draft Constitution amidst sound and fury signifying nothing in the truly Aristotelian sense.

For the moment however, let us return to the past. More specifically to what Justice and Constitutional Minister G.L. Pieris warned in an essay on "Political Self-Interest, Keeping Faith and Constitution Making", (1993):

" If then, the public have reason to believe that the Constitution itself is being subverted and manipulated in a manner which, far from advancing the values which pervade it, actually stultify and negate those very ideals and aspirations, the virulence of the public reaction, taking as it must do, the form of contempt for elemental constitutional structures, is not merely likely but unavoidable."

The sad truth is that there can be no better example where the above warning would apply than the juggernaut manner of constitutional making indulged in by the Government this week. Lessons of history indeed, die hard. The Constitutions of 1972 and 1978 did not survive precisely because they were no more than creatures of political minds then in power. Given the events of this week, the possible Third Republican Constitution of 2000 can only have comparatively less chances of survival into the next decades than the other constitutional documents that have fallen by the wayside in this country.

Point of view

Mutual suicide pact on a sand castle

By Susantha Goonatilake

Our two leading parties have proclaimed a broad agreement on a new constitution.

It is one that the Tamil 'moderate' parties do not want. It has been rejected by the Tiger spokesman Anton Balasingham as he wages war, commits ethnic cleansing and genocide on Sri Lanka from British soil, all crimes under British 1aw. Mr. Balasingham says he controls the North-East anyway and will not be deterred by any constitution that does not recognize the"self-determination" code for separatism.

The PA has accused Ranil of handing over the Nort-hEast for two years. Now both are willing to hand it over for five years. Chandrika even for ten. In its decision to merge the North and East the new horse deal recognizes the traditional homelands hoax, which is as far fetched as there being hares on the moon-a fiction against which the UNP fought in Timpu till it was silenced by the Indian guns that took aim at JR. A fiction more strongly rejected by the SLFP till, true to feudal undemocratic tradition, its present leader acquiesced.

It is cloud cuckoo land on a suicide mission.

Although the Tigers have rejected the proposals outright they have got one step closer to their goals. This is because of the formal acceptance of the hoax of traditional homelands by both national parties in the form of this North-East merger. This would advance the cause that Tigers have been propagating internationally to legally accept the background for separatism.

Of all the terrorist groups in the world, only the Tigers have barbarically targeted religion. They attacked Buddhist monks, and the two most important Buddhist sites, the Sri Maha Bodhi and the Dalada Maligawa. And this has been done allegedly with the help of the BJP, which holds Hindutva dear, and, by Norway a strong Lutheran Christian state, which does not allow its natives to convert to another religion.

The new constitution speaks of multiculturalism and multi ethnicity ignoring the fact that these features exist only in Sinhalese majority areas. It definitely does not exist in the Tamil-Eelam lands.

G.L.Pieris now claims that a strong executive code to keep Chandrika in the role of President is required to defeat the Tigers. We thought peace was the reason for the whole exercise of the new constitution. This was the reason, apart from the pursuit of ethnic harmony, for all the constitutional and other changes we made, from the District Divisional Councils to Provincial Councils; from the reasonable use of 'Tamil, an adjunct of the Sinhala Only bill, to its use as a national language and then to an official language.

For us citizens this constitution being force-fed to us is not like the Indian Constitution process which after nearly a century of nationalist discussion Nehru announced as "a tryst with destiny". It is not even like our constitution-building process in the 1970s where a popularly elected government sought a change in the constitution after open discussion. The LSSP led the charge for that Constitution which firmly stood against the very provisions, now being imposed in the current one.

The secrecy of the new constitution was such that newspapers reported how at a social do, PA senior hands including Mahinda Rajapakse surrounded UNP leaders to find out what was really happening at the Constitution making talks. With secrecy like that, one is reminded of the Indian Accord of 1987 that was hidden from JR's own cabinet. But at least in JR's case, he had the excuse of the threat of Indian invasion forcing his hand.

The PA nor the SLFP have any internal democracy. The present UNP is a post-JR creation where the leader, selects the key decision-making Executive Committee.

With such disregard for public opinion or internal democracy within both parties, the whole alleged purpose of the exercise to extend democracy becomes a hoax. It should be rejected as the product of unsound minds brought about by those under duress.

The public at large had no freedom of expression while any real debate was silenced through the government's propaganda machines at Lake House and Rupavahini.

This new constitution is in one way more democratic. Instead of just one country being involved as it was the case with India's involvement in 1987, many foreign countries have indirectly participated in its formulation. It reminds us of how European powers carved out Africa among them in the 19th century. Our present rulers have declared the present scramble for Sri Lanka just and correct.

But now the Norwegians, Indians, British, Americans and even the French - who could not get a foothold in this country even during the heyday of colonialism - are trusted more than one's own countrymen or one's own cabinet colleagues. Apparently the draft constitution was shown to foreign ambassadors while the citizens of the very country have been kept in the dark. One wonders what really makes the mind of this most servile of constitution makers' tick. Never was such servility previously shown to foreign interests, not even during the Soulbury or Donoughmore constitution-making processes under British rule.

The British were far more open and trusted the people. Definitely the current talks would have made Colvin R. de Silva and N.M.Perera - the LSSP's brains during its heyday - cringe in shame at the total surrender to foreign interests. Our infantile "leaders" seem to relish the current rape of our sovereignty that they have partaken in.

What then should we do with such a hoax perpetrated on us in a cloak and dagger pact?

We have to recognize the nature of this deal, done under secrecy with the protection of foreign powers. This is not the first time weak, undemocratic leaders have done deals against national interests.

We had a similar experience in 1987. But the supreme example was that of the infant king Don Juan Dharmapala baptized to become a puppet of the Portuguese.

Our weak "leaders" are the puppets of almost anybody around except their own electorates. Under such circumstances, what we have to do is what our forefathers did when their leaders betrayed them to foreign interests. We are a historical people. We must grit our teeth and determine to resist, if not now, in the future. And especially those soldiers who are dying for the present parties in power should grit their teeth.

When they pull their trigger, they must be aware for whose benefit they are risking their lives. But our people are educated and cannot be fooled all the time.