The Broadcast ing Authority Bill saga highlighted several important and depressing features relating to governance in Sri Lanka. While the draft Bill was completely hostile to principles of freedom of expression and thought, the process by which it was introduced and the events that culminated in its complete rejection by the Supreme Court, reveal fundamental defects in the Constitution and the law making process of the country.
Under Sri Lanka’s bizarre constitutional provisions, if a Bill is not challenged within one week of its introduction in Parliament, it can be debated in Parliament, enacted as legislation, and thereby become totally immune from challenge on the ground of unconstitutionality. The one week period does not exclude holidays. Copies of a Bill have to be obtained, studied, lawyers consulted, petitioners identified, petitions drafted and the requisite number of copies made - all within that seven day period.
This was done, in the Broadcasting Authority Bill case, mainly due to the commitment of the petitioners and their lawyers. On 10 April, two days before the new year holidays, at the commencement of the day’s parliamentary proceedings and in a manner which almost passed unnoticed, the Sri Lanka Broadcasting Authority Bill was tabled in Parliament. Fortunately, vigilant media groups noticed the move and the main opposition party pounced on an issue it knew would galvanise the party after its disappointing performance at the local government election. Petitions challenging the Bill, had to be filed by 17 April.
The case was argued in the Supreme Court on 28 and 29 April and the court delivered its determination on 5 May. The Court held that the Bill was unconstitutional as it violated several fundamental rights including the freedom of expression, thought and the right to equality.
The Ministry of Media and the Cabinet were not the only institutions that suffered loss of reputation as a result of the Broadcasting Authority fiasco. The Attorney General’s Department which is supposed to advise the Government on the constitutionality and legality of its actions, yet again, ended up looking incompetent and stupid. In the proceedings before the Supreme Court, the hapless Additional Solicitor General, conceded that vast chunks of the Bill were unconstitutional. Why on earth did not he or his colleagues speak out at the Bill preparation stage? It would have saved energy, time and money, and the reputation of the PA Government with regard to media freedom. The Legal Draftsman’s Department which must surely have fashioned the final version of the draft Bill must begin to realise that its function is not the mere mechanical conversion of government dictates into legal form, but also the framing of laws which are compatible with the Constitution.
Good governance and smuggling
It seems likely that the main lesson to be learned from this fiasco will not be absorbed by the political elite in Sri Lanka.
The law making process, as set out in the Constitution, far from encouraging constitutional government, transparency and accountability, on the contrary, provides incentives for precisely the opposite. It encourages a culture of secrecy and smuggling. A government knows that it can basically pass any law, even a law which violates the Supreme Law, the Constitution, if the law is undetected during a period of one week. Once that one week period has lapsed the Bill is completely immune from judicial surveillance.
The other checks and balances on proposed legislation are relatively ineffective. The Committee System in Parliament is not developed like in the UK or the USA. Since MPs are compelled to follow the party line or risk expulsion from Parliament, Parliament has become a congress of party ambassadors rather than a vibrant, deliberative assembly of representatives of the people, as, indeed, it should be. Since there is no second chamber, Bills become Laws in Sri Lanka more speedily than in most liberal democracies. There is little time to mobilise public opinion on draft legislation. In any event, in the case of the Broadcasting Authority Bill it was sought to be enacted so speedily that it even, possibly, bypassed the Cabinet!
There are several laws on our statute books that are unconstitutional, yet remain legally valid and operational, because of a lack of vigilance by opposition political parties and civil society groups during that crucial one week period. Many are laws which have undermined constitutional provisions on devolution of power; the National Transport Commission Act, the Agrarian Services Act and the Southern Area Development Authority Act. It is therefore not surprising that there is widespread disenchantment with the current scheme of devolution of power and a cry for greater safeguards and guarantees for the powers devolved.
This completely unsatisfactory state of affairs has an adverse ripple effect on other institutions as well. The Attorney Generals Department, has in the past twenty five years, probably figured out that most laws are not challenged prior to enactment and that the chances of an unconstitutional Bill being detected and challenged during the vital seven day period are remote. Furthermore if a Bill slips through, its unconstitutionality will never be a matter of public record or knowledge as post enactment challenges are not permitted. There is therefore no incentive for rigorous, careful scrutiny of draft legislation. The attitude seems to be: “If a Government wishes to enact a law, why displease it by stating that it cannot?” In true Sri Lankan style, say okay, and hope for the best! Especially as one has to hope for just seven days. If you’re caught, then as the Additional Solicitor General did in the Broadcasting Authority Bill case, go to court and concede that the Bill, or a large part of it, is unconstitutional.
The current Sri Lankan position that Parliament can be prevented from enacting legislation which is unconstitutional only if it is detected in a brief time span before it is passed by Parliament not only encourages the smuggling of undesirable legislation, but also results in a conceptual hotch potch! Is the Constitution supreme or is it not? It was supreme with respect to the Broadcasting Authority Bill because it was detected within a one week period. It was not supreme vis-a-vis the National Transport Commission Bill because it was not detected during a similar time frame.
It is in my view, important to recognise that ultimately it is the system which is at fault. The constitutional and law making scheme encourages legislative smuggling, a lottery style system of checks and balances, in short, jackpot constitutionalism.
The new constitution
What is disappointing with the provisions of the new draft Constitution is that they do not overcome all the defects outlined above. The assertion by Government spokespersons that the new Constitution introduces judicial review of legislation is erroneous and misleading. Comprehensive judicial review of legislation has not been proposed.
An extremely limited kind of judicial review has been proposed. The basic rule that flows conceptually from a constitutional tradition that upholds the pernicious doctrine of parliamentary sovereignty, continues: once a law is passed by Parliament, it cannot be questioned on the ground of unconstitutionality. The farcical one week period for pre-enactment review remains. An exception is made for a law if it is contended that it violates just one chapter of the Constitution; the chapter on Fundamental Rights. The Supreme Court may entertain such a challenge if it is made within a period of two years after the enactment of that legislation.
Furthermore, even if the law is declared unconstitutional, the new Constitution protects all previous action done pursuant to the impugned Act. Thus conduct which flows from an unconstitutional law may remain legally valid. Such a position is unsatisfactory as it is not only conceptually untenable if the principle of the supremacy of the Constitution is upheld, but it fails to act as a deterrent to the introduction of unconstitutional legislation.
The Soulbury Constitution recognised that the whole Constitution was supreme. There was comprehensive judicial review of legislation with no time limits. Perhaps Ceylon’s most famous constitutional case, Queen vs Liyanage was the result of judicial review of legislation based not on Section 29 which was the alternative mechanism for a Bill of Rights, but rather on sections of the Constitution, and its scheme and structure, which dealt with the independence and autonomy of the judiciary.
The system, therefore, basically encourages smuggling and deception. The “principle” that once a Bill becomes a Law, it is then immune from any form of review, and is sacrosanct, violates the essence of a constitutional democracy and is probably unparalleled in the liberal democratic world.
A basic feature of a constitutional democracy is the supremacy of the Constitution. If the Constitution is supreme, then all the organs of Government, all institutions and all citizens are subordinate to it. Since Parliament derives its authority from the Constitution, it cannot validly pass laws which violate the Constitution. A law found to be unconstitutional must be void.
It is surprising that while Professor Peiris correctly describes the Thirteenth Amendment as a sham, citing the example of the National Transport Commission Act to demonstrate how easy it is for the Central Parliament to undermine devolution of power, he steadfastly refuses to introduce the mechanism which acts as the most effective check on the temptation to concentrate power in the centre - judicial review of legislation. It is quite amazing that the Tamil political parties seem unaware of the vital link between secure and guaranteed devolution of power and judicial review of legislation.
The argument that the introduction of comprehensive judicial review of legislation will result in uncertainty in the law and cause practical difficulties in the event of legislation being declared unconstitutional, is made by persons who have a mindset that exalts executive convenience. One of the main reasons for Sri Lankan Constitutionalism’s ineffectiveness since independence has been this obsession with executive convenience. It is high time that people realise that if the choice is between executive inconvenience and constitutional government, it is the latter that should prevail. This will, as argued earlier, be in the interests of the Executive, the Legislature, institutions like the Attorney Generals Department and the Legal Draftsmans Department, and ultimately Constitutionalism and Good Governance.
What is tragic, but perhaps not surprising in Sri Lanka today, is that no political party in the country is committed to what in my view is the cornerstone of a constitutional democracy. Both the People’s Alliance and the United National Party have opposed the reintroduction of judicial review of legislation. The Tamil parties consider it a non-issue when it is vital for safeguarding devolution of power. I’ve said it over and over and over again: Constitutional Reform is too important a matter to be left to a Select Committee of Parliament. What is in its interest, is very often not what is in our interest. Jackpot Constitutionalism is NOT in our interest.
There is a tide turning in the affairs of Iran, the land of megalomaniacal mullahs, passionate Islamic fundamentalism and secret nuclear bomb research where America’s proven role as the Great Satan is an inviolable text that until now has guided every move of the ruling elite.
Item1. An advertisement in Monday’s International Herald Tribune by the devoted sister of the late Shah of Iran, overthrown by a popular revolt led by Ayatollah Ruhollah Khomeini, ending a monarchial system dating back 2,500 years. For years the Shah’s sister has taken advertising space to denounce the rulers of Iran. Now she comments on Iran’s recent Presidential election thus, “Iranians have overwhelmingly voted for personal freedom, political democracy, separation of religion and government, economic development and peaceful foreign policy.” This is an endorsement of the new President, given its source, of rather stunning and unexpected proportions. She concludes ringingly, “This is what my brother could have wished”.
Item 2. From Monday’s Washington Post: “The Clinton Administration has decided not to oppose a $1.6 billion pipeline that would carry huge quantities of Central Asian natural gas across Iran, in the first significant easing of Washington’s economic isolation (of Iran).”
Reconciliation between Washington and Tehran is still a long way. But it is no longer out of sight and spurred on by the upset of the Presidential election result of Mohammed Khatami (who takes office on Saturday). Washington is visibly changing gears.
A lot is going to hang on President-elect Khatami. Is he a glass half empty or half full? He was part of the regime for long enough, holding at one time the post of Minister of Culture. He was a voice for moderation yet, nevertheless, he was an enthusiastic proponent of rule by mullahs and still today ultimate power remains not with the elected President but with the supreme religious leader, the orthodox Ayatollah Ali Khamenei.
The important thing, however, in this delicate balance of power, is that Mr Khatami remains, as the Shah’s sister makes plain, the only one with a popular mandate for change, voted by an electorate disillusioned with the long years of theocratic rule.
The people are worse off materially than they were in the Shah’s time. The bazaar - the merchant class - whose hostility doomed the Shah is now likewise alienated from the regime. Besides, fundamentalism almost everywhere in the Middle East seems to have peaked. In Egypt the fundamentalist guerrillas are in retreat and the cause no longer has the popular cachet it once did. In Algeria extreme fundamentalism is being undermined by the twin policy of repression and controlled electoral participation.
A pressing question for Washington is whether this apparently half full glass is going to be topped up by the new President by putting the nuclear bomb program on the shelf.
Last month General Binford Peacy, head of U.S. Central Command, with responsibility for U.S. forces in the Gulf, said he believed that Iran could have nuclear arms within three years.
The imperatives for Iran to build a nuclear armoury have been strong. If Saddam Hussein’s Iraq had perfected its nuclear weapons during its 1980-88 war with Iran it may well have used them. Iraq remains Iran’s supreme enemy and although United Nations inspectors have supervised the dismantling of Iraq’s nuclear weapons programme there is undoubtedly a question mark over the future. For Iran nuclear deterrence must seem the best insurance.
Then there is the issue of Israel. Iran values its position as the country which most faithfully supports the Palestinian cause. It is not that Tehran believes it can engage Israel in nuclear brinkmanship to force Israel out of Palestine. It is simply a question of standing and also, usefully, of adding to the war of attrition on Israeli nerve ends.
Finally, there is the relationship with the U.S. with whom conflict has become a way of life ever since the American embassy and its occupants were seized and held hostage shortly after the Khomeini revolution.
What then has Washington to offer to persuade Iran to return its nuclear genie to the bottle? Washington cannot, except indirectly, bring peace between Palestinians and Israelis. Nevertheless, it is now clear that it must get tougher with Prime Minister Benjamin Netanyahu if the Oslo Accords are to be salvaged. On Iraq it is as much in Washington’s interest as Tehran’s to keep Saddam Hussein’s nuclear war machine in the dismantled state it now is. By making it clear that the U.S. no longer sides with Iraq against Iran - its defacto position during their war - Washington could make a huge psychological gain. But as for America’s direct relationship itself, prisoner for too long of its own fundamentalist-style crusade against Iran, it is surely the time for constructive engagement. Iranian public opinion, as the Shah’s sister has intimated, is ready to bury the hatchet. So should Washington. And that change of relationship alone will do more to help bury the Iranian bomb than any policy of isolation and confrontation.
Islamic militants recently massacred over thirty in two small villages not too far from Algiers, the country’s capital. Fear still reigns in this mountainous region reported AFP, the French news agency, the other day. “Here everyone has a ‘Klash’,” observed a village elder summing up the situation. “Klash”, of course, was his home-made description for the Russian ‘Kalashnikov’. “We don’t know who is who anymore - security guards, patriots (members of the local vigilante group) or terrorists,” the frightened old man told the reporters first on the scene.
In the mid-50’s the Algerian war of independence was the Arab world’s answer to Vietnam, another liberation struggle against the imperialist intruder. But there was a difference. French colonialism had its own distinctive character. Algeria was no “colony” but part of metropolitan France. The distance from Algiers to Marseilles was no greater than Marseilles to Lille, French correspondents in the field or French officials in Paris would tell Asian visitors, particularly the media. Or Third World guests.
There would be no Dien Bien Phu, they would boast. And of course, Algeria, though it had its frontline commanders and strategists, many Paris-educated (Ben Bella was a respected name in the more enlightened Asian press), the anti-imperialist liberation struggle produced no Ho Chi Minh, Uncle Ho. The FLN did have generous friends and patrons - Arab neighbours, Libya, Tunisia, Morocco to start with. The international left movement too. Messali Hadj, Belkassem Krim, and other leaders had the unstinted support of anti-imperialist parties in ‘the Third World’. Yes!, Algeria was the most romantic liberation struggle, the Arab world’s Cuba.
“And now what do we have? Islamic fundamentalists....” Consider also Egypt today, Egypt the land of Gamal Abdel Nasser, the country’s best loved hero and the most charismatic figure produced by the post-war Arab world. “The isolation by Egypt’s security forces of the Islamic militant groups which have claimed responsibility for attacks on tourists since 1992 has further exposed tensions between the country’s Muslims and Coptic Christian communities” claims a British correspondent, Mark Huband. In Egypt, the Muslim Brotherhood is banned but its supreme leader Mr. Mustafa Mashour, has recently drawn the attention of the authorities to Jizya, an ancient tax on non-Muslims, which is no longer enforced. It should be re-introduced, argues Mr. Mashour. If a Christian country attacked Egypt, could the Muslims, the vast majority, expect the Copts to fight loyally under Muslim commanders? This line of argument is evidently a disturbing deviation, and a surprising shift of opinion among the mainstream Muslim elite. Such opinion trends have upset Pope Shenouda III, the man who leads Egypt’s Copts. At a recent colloqium, Pope Shenouda regretted that there appears to be a clear shift of opinion among Muslims on the “Social position of the Copts”. As he sees the dangerous trends, “the problem is the spirit among the common people”. The Muslim fanatics have two activities, two kinds of work. One of them is aggression, violence, discrimination, when they burn churches, for example. The other is the creation of a “very bad spirit in the country”. As a result, the Church evidently has a low profile. “We have built many churches but we don’t write about it to the newspapers in order not to have a bad reaction from the fanatics”.
Of course, ultimately the army calls the shots. “In Egypt we have only the Egyptian citizen”, explains General Hassan Al-Alfi, the Minister of the interior or Home Minister. “We don’t distinguish between Muslims, Copts and Jews. Muslims are more and more the victims. What has happened is that the militants have tried to get between the Christians and the Muslims to give the impression abroad that we distinguish between Muslims and Christians”.
The majority as the oppressed or the second-class citizen, and the minority, racial or religious, as the privileged is of course no strange phenomenon to the student of ethnic conflict - particularly in the ex-colonial countries or States where the impact of foreign rule and often deliberate imperial policy have been negative. With the majority exercising power, through democratic means or otherwise, the regime recognizes that past wrongs have to be rectified. “Domination”, “Discrimination” and “Oppression” screams the more articulate and better organised spokespersons of the national minority as they study the trends, under post-colonial regimes. While Islamic revivalism can be explained in these terms, the phenomenon of the Prophet’s teachings as a dynamic, nearly global force, requires closer inspection.
Turkey is the odd man out. Kemalism - after Kemal Ataturk - is the official doctrine, not Islam, fundamentalist or any other. With a population (61.6 million) slightly larger than Egypt, Turkey calls itself a parliamentary republic and a “secular state”. These claims notwithstanding it has its own ‘ideology’ - Kemalism after Kemal Ataturk, the founder of modern Turkey. International affairs analysts are often tempted to place Turkey in an exclusive club of two - Ataturks, Turkey and Kim Il Sung’s North Korea.
(Remember ‘Thoughts of Kim It Sung’, a crude imitation of, ‘Thoughts of Mao’, the Great Teacher, Great Helmsman etc., etc.
“Secular Turkey is losing its validity as a model for the Moslem world, so that the debate over secularism and democracy, the roles of Islam and the armed forces in a modern state has wider implications both for Moslem states and for western governments that fear political Islam...” writes John Barham after a three week visit to Turkey. Yes, the Army and Islam. Suleyman Demirel, who was toppled twice by the armed forces, warns about “the wounds of the system”. In the past, the threat perception of the governing class gave pride of place to “the red menace” - Communism and Soviet Russia. Now it is radical Islam. Turkey’s deputy prime minister Mrs. Tansu Ciller leads the True Path Party, right-of-centre, Turkey’s answer to Benazir Bhutto. Her response to Islam’s challenge is to advise all democratic parties” not to politicize secularism and religion. “We are not going to become a world power by wasting our time wondering if we are going to be another Algeria”. So Algeria and its current crisis have become an important lesson for regimes and political elites in the region.
The Philippines is a Catholic country.
“Cobato city has become the kidnapping capital of the Philippines; the Chinese community is being plagued by an unprecedented epidemic.... we are advising our people not to travel there for anything other than short, essential trips,” said a western diplomat, in an interview with Manila correspondent, Justin Marozzi. Reason? Yes, kidnapping. But by whom? Gangs? Of course. But behind the gangsters or with them is the Moro Islamic Liberation Front “I am worried about my children....” says Mr. Pacifico Chua, hotelier and big businessman, “I have sent two to Manila and one to Canada.”
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