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Undoing Constitutional Tomfoolery

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Basil Fernando

That the United National Party (UNP) has published a few ideas on the changes to the constitution they would bring about if they come to power is an indication that a serious critique that has been made about the 1978 Constitution, can no longer be ignored. As it is good to have even an inadequate debate on vital issues rather than nothing at all, it would be better not to ignore the UNP proposals but rather to utilise the occasion to raise all the vital issues that need to be addressed if the mess created by what retired Justice C.V. Wigneswaran charaterised as tomfoolery with the constitution, is to be brought to an end.

What has to be asserted clearly and unequivocally is the fundamental elements of the basic structure of the constitution. The notion of basic structure implies that certain permanent notions are entrenched in the constitution and that attempts by any government to change that basic structure will be resisted. The tomfoolery with the constitution became possible only because there was no agreement on such a basic structure and because the judiciary did not consider it their fundamental obligation to defend and to promote such a basic structure.

The basic structure of the constitution must recognise that the inalienable sovereignty of the people is guaranteed by the recognition of the following principles:

  1. That Sri Lanka is a secular democratic republic where all persons are equal.
  2. That the basic structure of the government envisaged in the constitution is organised on the principles of the rule of law.
  3. The recognition of the principle of the separation of powers.
  4. The recognition of the independence of the judiciary and the right of the judiciary to be the final arbiter on interpretations of the law and with the power of judicial review (as it existed before the 1972 Constitution).
  5. The independence of the public institutions within the framework of the rule of law.
  6. The recognition of human rights as expressed in the Universal Declaration on Human Rights, with the recognition that everyone is entitled to the enforceable right to a legal remedy for violations of rights.
  7. That the peoples’ right to participation is guaranteed by free and fair elections held at fixed periods and through the freedom of expression.
  8. That the public accountability of all public servants must be guaranteed through public hearings before state organs created by the Constitution.
  9. That the character of the welfare state will be safeguarded.

The prime importance of agreeing on the basic structure

The making of a constitution or replacing a constitution is not just a matter of writing a new essay. It is an historical act. In an historical act addressing in the clearest terms possible the fundamental errors that have led to the present impasse need to be clearly expressed. A new constitution is a clear departure as well as a clear beginning.

Therefore it would require a prolonged and a sometimes painful discussion in order to enable a clear agreement being expressed through the basic laws of the country. This does not mean that all issues can be finally settled through a constitution. A constitution is a dynamic document and the problems of a nation are also dynamic. Resolving these problems is a perpetual preoccupation. However, there are basic and fundamental areas where the people recognise that things went wrong and that these must not be allowed reoccur. Therefore a thorough reflection of the past is an essential aspect of any serious attempt to develop the country’s basic law for the future.

The UNP in entering into this area of the national debate has done itself a favour. However, in the very preamble of its declaration on the basic constitutional issues it has done great harm to the credibility of this initiative by being an apologist for the 1978 Constitution. The UNP’s credibility will be tested by its capacity to unequivocally condemn the enormous harm caused by the 1978 Constitution and the practices which developed under that constitution. Accepting full responsibility for the catastrophic consequences caused by introducing this constitution is an essential step for establishing credibility for its initiative for constitutional reforms.

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Sri Lanka Monk Self-Immolation Highlights Anti-Muslim Sentiment

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J.S. Tissainayagam

The suicide by a Buddhist monk who set himself on fire in Sri Lanka to protest the slaughter of cattle has been hailed as an act of great self-sacrifice and compared to acts of self-immolation by Tibetan Buddhist monks protesting China’s repression in Tibet. Nothing could be more ill-informed. In fact, it is one more step by Sri Lanka’s chauvinist Sinhala-Buddhists to undermine the Muslim political base.

The monk, Bowatte Indraratne, who had been campaigning against the Muslim halal method of slaughtering animals, was also a politician. He was a former elected member of a local government body representing the extreme Buddhist political party Jathika Hela Urumaya (JHU). JHU’s leader Champika Ranawaka lost no time in exploiting the incident to advance the party’s agenda. He said the government should bring in legislation to ban the slaughter of cattle, and religious conversion. Christians have come under pressure from Buddhists for proselytising, a charge they deny.

The campaign to stop the slaughter of cattle and instances of violence against Muslims are not isolated events in Sri Lanka. These are steps to politically disempower Muslims are uncannily reminiscent of the way the Sinhala establishment tries to destroy the Tamil power base.

Persecution of Muslims is taking a particularly virulent form today. But in the past too Sinhala leaders viewed Muslims with suspicion, as they did Tamils. The control they exercised was a blend of coercion, political manipulation of Muslim elites and the policy of divide and rule.

Coercion of Muslims by Sinhalese was applied mostly through violence and intimidation. In recent memory are rampaging Sinhala mobs targeting Muslims in Mawanella (2001) and Beruwela (2002). Other disputes occurred over land, like Deegavapi in 1999.

Political manipulation of the Muslim elite compelled them to take decisions detrimental to their community. In 1956, Muslim politician and diplomat Sir Razik Fareed campaigned with Sinhala leaders to deny Tamil as an official language of the State, despite a large majority of Muslims being Tamil speakers.

Adopting a policy of divide-and-rule, Sinhala leaders forced Muslims – especially in the East – to view Tamils as enemies, which led to Tamil-Muslim clashes. The Sinhala-dominated military used Muslim home guards to target Tamil civilians in the East. The rift was magnified by the LTTE expelling the Muslim population in Sri Lanka’s North.

With the military phase of the conflict with the Tamils coming to an end in May 2009, Sinhala-Buddhist nationalists realised they now had the luxury of investing more resources in suppressing Muslims. Further, with President Mahinda Rajapakse intent on consolidating power, extreme nationalism was a good vehicle.

The government has made no secret of its connections to extremist civil society groups. Relations between government officials and the principal vehicle of Buddhist bigotry, the Bodhu Bala Sena (BBS), are so fraternal that Gotabhaya Rajapakse, the hawkish head of the Ministry of Defence and brother of the country’s president, graced an important occasion of the organisation. The BBS plays a similar role as the Shiv Sena does to the pro-Hindu regimes in India.

As mentioned above, the objective of Sinhala-Buddhist nationalism is to demolish Muslim political power in Sri Lanka. It is no different from efforts to destroy the Tamil power base in the country from the 1950s. The three examples below demonstrate the similarities.

The BBS has opposed the certification of food as ‘halal’ and Muslim women wearing the hijab. These cultural practices are important markers of Muslim identity. The BBS’s campaign is not only to demolish what distinguishes this group’s identity, but also the power its members derive from that identity. For the Tamils, the primary marker of identity is language. That is why Sinhala nationalism sought to undermine Tamil by denying it official language status and placing obstacles to Tamil-speakers’ access to higher education and State employment.

Second, mosques and Muslim-owned businesses have come under assault. It is important to note the significance of both in the political lives of Muslims. The mosque is a forum for political mobilisation. The strength of metropolitan Muslims in Sri Lanka is their success as a merchant community. And they have used their wealth to buy political power. Therefore attacking mosques and commercial establishments is a way to undermine the Muslim power base. In the case of Tamils, assessing that their political base was territorial concentration in the country’s North and East, Sinhala leaders took to dismantling it by settling large numbers of Sinhalese in those areas.

Finally, let’s look at the government’s use of counterinsurgency laws to stifle freedom of speech and political opinion. On May 2, Azath Salley, a well-known Muslim leader, was arrested (and later released) under the Prevention of Terrorism Act (PTA). He was detained for an interview he gave to an Indian magazine where he said that Muslim youth should take to arms. But the reasons appear deeper than that. Salley openly criticised the government for anti-Muslim racism. But more than all else, Sally heads a political party which advocates Tamil-Muslim political dialogue to resolve mutually important issues. This, by definition, excludes government and the Sinhalese.

The government arresting and later releasing Salley is reminiscent of the then government criminalising Tamil parliamentarians who even advocated democratic secession. This legislation – the Sixth Amendment to Sri Lanka’s constitution – suppressed democratic dissent and left armed rebellion as the only option to give effect to Tamil demands.

Therefore, the self-immolation by Bowatte Indraratne protesting cattle slaughter had a sinister motive. It used religion as a weapon to undermine the political base of a minority community in Sri Lanka. If steps are not taken to check this trend, Sri Lanka’s Muslims could be facing a future of persecution and violence.

*J. S. Tissainayagam, a former Sri Lankan political prisoner, was a Nieman Fellow in Journalism at Harvard and Reagan-Fascell Fellow at the National Endowment for Democracy in the United States. This article is first appeared in Asian Correspondent

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Reengineering The Nation

“….establishing a complete series of methods which will allow the controlling oligarchy……to get people to really like their servitude. This is the, it appears to me, the ultimate in malevolent revolutions”. –Aldous Huxley (The Ultimate Revolution)

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In the course of his current Ugandatour, President Mahinda Rajapaksa was reportedly enchanted by the servile conduct of the Ugandans he came into speak to with. According to the political column of last Sunday’s Rivira, the Lankan President asked his Ugandan counterpart, “When we appear at them (Ugandans) it is clear that they have a very obedient nature. How did you handle to make them so obedient?” President Musevini’s response was that this servility was a relic of the Colonial ethos, when White Masters kept their Black and Brown Subjects in total subjugation.

In a democracy uncritical obedience is a unsafe vice. Despotic rule can’t survive without uncritical obedience. Colonial rulers treated colonised peoples as political infants incapable of handling independence. Tyrants too regard their subjects as eternal political-minors, incapable of dealing with freedom.

Foremost amongst the freedoms considered unsafe by actual and nascent despots is the appropriate to info, the freedom of the individuals to know what is happening in their personal nation. Over the years the Rajapaksas have managed to subdue most of the print media. At present, websites are their major targets. In this month alone, de facto banns were imposed on numerous web sites which includes Gossip Lanka and Lanka Eagle.

The Rajapaksa worry of a free of charge and critical media is comprehensible. The Siblings have a lot to hide.

Take land grabbing. At present this is a major dilemma confronting not just by the Tamil individuals of the North but also by the Sinhala people of the South. Parallel to the stealth campaign of demographic reengineering in the North, the Rajapaksas are conducting an even more secretive operation of class and partisan-political reengineering in the South. Their ultimate aim is to create a new demographic which will render tough any democratic/electoral resistance to Familial Rule.

In the North, private lands are getting expropriated to create new army camps and military cantonments. For instance, according to Parliamentarian MA Sumanthiran, the regime is utilizing the Land Acquisition Act to expropriate 6,400 acres of land to build a military cantonment in Jaffna: “….the notice says that the claimants are not traceable! The owners of these lands live just outdoors the so known as illegal Higher Safety Zone, in camps maintained by the government itself. They have lived there for over 25 years. And although their title to these lands were checked and cleared by a Committee appointed by the Supreme Court in 2006, they were not permitted to go and resettle on the false assertion that de-mining was not comprehensive. That it is false is demonstrated by the sight of soldiers cultivating these lands….. Now abruptly, the government has shown its true face: these lands will be taken and given to other folks to occupy, who will turn into voters in the North. Equivalent notices have been issued in the Kilinochchi Distrct also. In the Eastern Province, guidelines have gone out to obtain all the land that the military deems needed for its purposes”[i].

These cantonments and military bases are getting superimposed on a Tamil terrain to break the current ethnic contiguity of the North, thereby to render devolution not possible and to maintain Tamils in a continued state of subjection. Its other – and no significantly less important goal – is to make it possible for the Rajapaksas to win elections in the North, with a minimum quantity of violence and malpractices.

Most Sinhalese are indifferent to the situation of land-grabbing due to the fact they see it as a Tamil dilemma. The Rajapaksas would want this ignorance – and the consequent indifference &#8211 to last as lengthy as achievable. The plight of Colombo’s poor, who are facing the danger of becoming evicted from their houses en masse, has received some interest but the plight of the Sinhala peasants of Ampara who have been chased away from their classic lands is virtually unknown. In 2011, the Lankan Navy grabbed far more than 1,200 acres of land close to the tourist hot-spot ofPanama consequently thousands of Sinhala villagers of Shasthrawela, Ragamwela, Ulpassawela, Horowkanda and Ella lost their properties and their signifies of livelihood. A comparable fate has befallen the fisher-folk of Kalpitiya.

When the state requires more than private land for development purposes, it is obligated to provide the owners with either compensation or alternate lands. This is how successive governments in Sri Lanka carried out themselves, by and large. The Rajapaksas have developed a different method land grabbing is becoming carried out, added-legally, making use of the military. The situation is hence ‘militarised’ and garbed in the protective-attire of ‘national security’. This way the owners can be threatened at will, the Sinhala-language media silenced and environmental laws and archaeological regulations ignored. For instance, in Ampara, “though sanctions have been imposed by the Forest Department, Archaeological Department, Coast Conservation Department and Central Environmental Authority on carrying out any improvement operate on forestlands, the Sri Lanka Navy claims that such formalities are entirely discarded when the Defence Ministry approves their projects. Speaking on the construction work carried out by the Navy in Panamain the Ampara District, Navy Spokesman Commander Kosala Warnakulasuriya stated that they have not followed any of these procedures nor would they require permission from the mentioned institutions as the building is becoming carried out on Defence Ministry land. ‘This is a Defence Ministry land and there is no necessity to get approval from any department to carry out any of our improvement function,’ claimed Warnakulasuriya[ii].

The Defence Ministry and the military are the law, not just in the Tamil-North, but even in the Sinhala-South. The ultimate objective of these acts of dispossession is to fill the Rajapaksa coffers, buttress the Rajapaksa dynastic project and render hard any powerful national resistance to Rajapaksa rule.

Atomisation

The Sinhala, Tamil and Muslim victims of land-grabbing have a issue and an opponent in common. Therefore coordinating their different acts of resistance into a single struggle tends to make perfect sense. However, rather of this essential and possible national campaign – ideally with the participation of the opposition parties – resistance is fragmented along regional/ ethnic/class lines.

The Siblings do not want the Sinhalese to understand that they are not immune to Rajapaksa-injustice. The Siblings do not want the Sinhalese to realise that the military, far from becoming ‘our boys’, are Rajapaksa tools (just as the Tigers served not the Tamil folks but Vellupillai Pirapaharan). The Siblings do not want their Sinhala, Tamil and Muslim victims to uncover the typical ground and mount a coordinated resistance. The Siblings want to atomise Lankans along ethnic, religious and class lines, to avoid a united opposition to familial rule from coming into getting. The only Sinhala-Tamil-Muslim unity they want to market is a unity in apathy and indifference.

The Rajapaksa project aims at the psychological reengineering of the Lankan people. They want an ignorant nation which equates distinction with danger. They want a men and women more concerned about hemlines or eating habits than land-grabbing or kid abuse. They want a nation seeped in mutual-suspicion and habituated into obedience.

They want a nation which, unconsciously, cooperates in its own subjugation and undoing.


[i] DBSJeyaraj.com

[ii] The Sunday Leader – 12.five.2013

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Sri Lanka 3 years after the war : Politicians speak

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