Towards A New Sri Lankan Constitution For Natural Justice

By Jude Fernando -February 2, 2013

The period that we have before us comprises the most motley mixture of crying contradictions: constitutionalists who conspire openly against the constitution; revolutionists who are confessedly constitutional; a national assembly that always wants to be omnipotent and always remains parliamentary; an executive power that finds its strength in its very weakness and its respectability in the contempt that it calls forth…Thus so long as the name of freedom was respected and only its actual realization prevented, of course in a legal way, the constitutional existence of liberty remained intact, inviolate, however mortal the blows dealt to its existence in actual life. (Karl Marx, Eighteenth Brumaire of Napoleon)

We should cautiously welcome and proactively engage with the Sri Lankan Government’s latest interest in creating a new Constitution to address the pressing needs of today’s society. Sri Lanka’s governments since 1972, have been infamous for enacting constitutional reforms, both during and immediately after economic and political crises, then conveniently forgetting about them once the crisis no longer appear to threaten the legitimacy of the state. The reforms that were implemented merely emasculated many institutions vital for democracy. What resulted were gross violations of the independence of the judiciary and calamitous setbacks to the rule of law. In addition, reforms led to a culture of impunity, with power concentrated in the hands of a few who do not hesitate to seek the connivance of the servile legislation to fulfill whatever wish they had. Recently, the chief justice was impeached against the order of the nation’s highest courts and advice of local and international legal community; many observers referred to this act as the end of constitutional governance in Sri Lanka.

As recent history has clearly demonstrated, we must recognize that undemocratic constitutional measures enacted, ostensibly for purposes of political expediency or as a necessary evil to ‘save the country’ at one moment, often plunge it into crisis at another. The nation thus finds itself imprisoned in a vicious cycle of “reform”, whereby the threat of anarchy is used as an excuse to institute authoritarianism and suppress the real economy and democracy.

State Repression With Focus On War Crimes

By S. Ratnajeevan H. Hoole -February 2, 2013

Prof S. Ratnajeevan H. Hoole

Crooks Pronouncing CJ Crooked

Sadly the CJ impeachment protests within Sri Lanka have become a whimper. Income tax officials suddenly pursuing the CJ is probably because someone vindictively asked them to. As Dharisha Bastians’ midweek column notes, President Rajapaksa informally constituted a three-man committee which debunked the three charges on which the PSC had pronounced guilt.

And yet, the President acted on that debunked finding by his parilamentarians described by Ranjan Ramanayake, MP, as consisting of cattle thieves, ganja dealers, gold chain snatchers in trains, and one joining his mistress to burn his girl friend and another killing Buddhist Monks at Arantalawa. Ramanayake might have added many others too such as UNP-ers involved in the 1983 cleansing and now with Rajapaksa.

Before we could recover from a President who rules us with his pack of crooks in parliament pronouncing guilt on a CJ cleared by the President’s own independent experts, it became evident that the President had lost track of reality – he told newspapermen at Temple Trees that the impeachment had done good to the country rather than damage it!

Foreign Interest, Tamil Hope

Even if Sri Lankans refuse to rise up against tyranny, there were signs that foreign powers would. Almost as soon as the President claimed positive effects from the impeachment, US Deputy Assistant Secretary of State James Moore announced that they will deliver a sharp public rebuke to Sri Lanka at the UNHRC in March for failing to pursue those responsible for abuses in 2009 and that “the impeachment of the chief justice contributed to the decision to ensure that the record (against Sri Lanka) stays fresh in Geneva.”

A new confidence among previously forlorn Tamils was visible when Tamil refugees in Mullaitivu defied the intelligence services to meet an Australian opposition delegation and tell them their woes. A three-member U.S. delegation which called for the prosecution of soldiers suspected of killing civilians, met Tamil leaders in Jaffna who say the delegation was quite explicit that they are serious about UNHRC action. Showing the deterioration in its relationship with the government, the delegation was openly expressive in its meetings with TNA, Church and local government representatives of its regret that the government had not acted on theLLRC report and views that Tamils’ situation had recently deteriorated precipitously.

These developments gave hope and relief for Tamils looking for an end to their troubles. Appropriately parliamentarian Arianenthiran successfully conducted several meetings in the East to remember the over 100 civilians murdered by the army in Kokkadichcholai on 28.01.1987, one of a series of calamitous government actions that India could not ignore and led to the 1987 intervention. India which has a legitimate interest in the welfare of Tamils must forcefully join the US in the upcoming sessions and not water it down. Minister Ranawaka’s removal from Power and Energy may be to please India over his obstructing the 500 MW Sampur power plants and influence her UNHCR stand. India surely is too wise to not see the ruse after years of obstruction.

In further signs of chaos, even as the Defence Secretary, receiving the recommendations of the Army under the National Action Plan, claimed that no surrendering LTTE-er disappeared, Minister Vasudeva Nanayakkarasaid that based on evidence received by the LLRC such disappearances cannot be denied. With Defence denying the obvious and a purporting Chief Justice who defended the government’s dark record in Geneva, any war crimes inquiry by Sri Lanka has no credibility. The UNHRC must take over.

Rising Intolerance

As Tamil hopes rise, so does Sinhalese intolerance. Ellawala Mettananda Thero betrayed his arrogance towards Veddas – the national anthem in Tamil is totally unacceptable because the uncivilized languages of jungle-men would also need to be accommodated, he argued. Encouraged by Presidential attitudes, a Rs. 650,000 statue of Virgin Mary which had been installed on the 26th in Avissawella, was set ablaze on the 28th. Seventy-five Sinhalese families were settled in Murungan with funds from the People’s Bank. The Government withdrew some Rs 560 million allocated for the Northern Province only from TNA-controlled local councils, to be spent by Governor Chandrasiri.

Students from Jaffna and the University Teachers’ Association President have gone quiet after the former’s arrest and the latter’s grilling. MP Sritharan is being worked on; Tamils believe that so called pornography and explosives found in his office were planted. A panicking government seems to be going after their parliamentarians who did not vote for the impeachment. An ejection from government may be the best thing for such principled people who lost their conscience after joining the government.

Jaffna Library

With strengthened communalist determination there is now an attempt to rewrite history. How the Jaffna Public Library was burnt down is undeniable. According to the Presidential Truth Commission on Ethnic Violence (1981-1984), it was a wanton criminal act committed by a contingent of policemen who had been in Jaffna in connection with the DDC elections (Para 70). Rajapaksa himself in 2006 fingered the UNP. According to Rajan Hoole’s book The Arrogance of Power, Gamini Dissanayake, Cyril Mathew, Festus Perera, G.P.V. Samarasinghe, Chandrananda de Silva, and Colonel Dharmapala were present. Many policemen were brought into Jaffna under DIG Edward Gunawardene who organized the burning. Gamini Dissanayake (who threatened “If India invades this country, the Tamils will be killed within 24 hours” and had declared that “the leader of the Naxalites is Vijaya Kumaratunge”) addressed the election staff. He told them, narrates the book, to close the polling booths at 10.00 AM and cast the remaining votes, and when an innocent underling asked “For whom should we cast them?” Dissanayake replied, “Why, to the animal [the Elephant] of course!”

Yet, just a fortnight back at a grand ceremony, based solely on the memoires of the very man named for leading the police arson, Edward Gunawardene, the blame was shifted to the Tigers who were still insignificant in 1981. Apologies were offered by the avuncular Carlo Fonseka, Kumaratunge’s favourite uncle, for having thought Gamini Dissanayake guilty.

Gunadasa Amarasekera, while rewriting history, thanked Gunawardene for defending the Sinhalese and claimed a heritage that honored honesty and integrity, and defended justice. Amarasekera was following the government’s pattern – after killing 70,000 Tamils in Mullivaikal, forming a PSC to promote inter-religious and inter-communal harmony! Spokesman Keheliya Rambukwella’s warning of severe action against those disrupting communal harmony, given the government’s own behavior, is really a warning to minorities that any protest against government communalism will be punished as communalism.

Presidential Advisor on English and IT, Sunimal Fernando’s plans for a trilingual Sri Lanka when Tamils cannot record a statement with the police in Jaffna in Tamil as already provided in law, will mean Sinhalese being pushed down Tamil throats further – as when Governor Chandrasiri ordered the Madhu Zonal Education Office sign to be redone with Sinhalese preceding Tamil.

Ripping Off Bare-bodied Priest

Jaffna is a posting for Sinhalese to lord it over Tamils like the Governor – and lucrative too. When a policeman was killed during the war in Jaffna, an ASP was assigned to take care of his personal effects which he found to include very large sums of money in his mattress. Today money can be made without any personal danger. News-reports state that in Ariyalai East, contractors carry away 25 tractor-loads of sand for a fee of Rs. 10,000 to soldiers. The land is denuded. In these circumstances DIG-North Eric Perera’s statement that crime in the North is out of control and he is taking action seems disingenuous – his men never respond when telephoned upon seeing the tractors.

Further, Sinhalese together with health authorities are making good money threatening fines for puddles and unhealthy tea boutiques. Shocking was the Rs. 30,000 fine on a Hindu Priest at the Puththoor Junction in Meesaalai. A clean Priest, many go to him on special religious occasions asking him to cook their auspicious foods. His offence was cooking bare-bodied without a chef’s hat. However, I recall the Iyer at Temple Trees (usually Babu Sarma) cooking Pukkai for the President on Pongal, barebodied and without a chef’s hat.

Post Script: PC North Elections due in September pose a problem. Douglas Devananda not contesting for the CM post would be cowardly, but if he gives up his ministerial post and contests, defeat is certain and he would be diminished. Returning to cabinet as a defeated provincial candidate would be awkward. In solution, he has just announced his wanting to contest and the President has said he cannot afford to lose Douglas from the cabinet. Either way, what they do would be interesting to watch.