President’s anti-drug campaign: For real or a farce?

• International co-operation, equipping local officials and agencies could well be hampered
• President’s contribution is in marked contrast to the lukewarm approach by the UNP

9 April 2019

Is President Maithripala Sirisena’s anti-narcotic campaign an opportunistic farce to lure voters to his bid for a second term in the office- or a genuine mission guided by a political will unseen in his predecessors? 

Public opinion seems to be mixed, not unsurprisingly in the partisan politics in the country and also due to the general Sri Lankan knack to criticize and complain about everything and anything.

However, certain idiosyncrasies in the presidential campaign have contributed to the public perception. 

Last week, in a national ceremony, the president, prime minister, cabinet ministers and key government officials undertook a symbolic pledge to rid the country of narcotics. All participants had their right arm inclined upward, styled in  the Nazi salute as they vowed their commitment to the national initiative. If the symbolism was the intent, it generated more bad vibe  than smoking a ‘joint’ in public would have done. Though the cultural appropriation could be alleged, the gesture is  now intimately associated with the Third Reich and Neo Nazis; cultural insensitivity of the gesture did not reflect well with many quarters. 

Then, on the same day, false- front cover  advertisements on the anti-drug campaign, published in national newspapers and sponsored by the P resident’s office  ended in an embarrassment. English ones effectively killed the Queen while Sinhalese ones, of which direct translation were the English adverts, won the cup for mediocrity. 

There are also concerns that arrests and confiscation of heroin, cocaine and other hard drugs are being exaggerated. The President himself has spoken in public rallies about the seizure by the Navy and STF of 500 kgs of heroin along with several Iranians in a trawler off the coast of Sri Lanka. However, according to the police, only 100 kg was seized and the rest is believed to have been thrown to the sea by the suspects before they were arrested.  Different numbers by different stakeholders add to confusion.

Also, there is an unholy obsession over re-implementing the death sentence. That ignores the potential drawbacks of the strategy, which would cost the international support to the domestic anti-drug campaign.  Rhetorical considerations have prevailed over sanity and threaten to compromise the legitimacy of the domestic campaign.

However, notwithstanding its current imperfections, the president’s anti-drug campaign is timely and praiseworthy. There is a marked increase in the seizure of hard drugs and arrest of top rung drug kingpins since the president brought the STF under his purview and assigned police commandos to crack down on underworld drug trafficking.

For instance, the total amount of heroin seized during 2017 was 314 kg, whereas during the last year, 737 kg of heroin was seized. More than two thirds of that ( 553 kg) was made during the last two months - after President  Sirisena brought STF under his authority and undertook a personalized campaign against drugs.

During the first two months of this year, another 520 kg of heroin was seized by the police which carried out some of the most high profile drug busts. 

On February 24, Police seized 294 kg of heroin in Kollupitiya, in the country’s largest drug bust. The previous largest was seized only two months before, in December when the police and STF raided a  house in Dehiwala  and took custody of 278 kg of heroin,  5 kg of cocaine and two Bangladeshis. Similarly,  the initiatives to arrest underworld drug kingpins domiciled abroad such as Makandure Madush were put into action during the same period. 

The president’s contribution is in marked contrast to the lukewarm approach to underworld and drugs, undertaken by the UNP ministers. While their inaction does not necessarily suggest their complicity, it implies the absence of pro-active action, without which they are not worth to be in the government. The presidential campaign is, however, marred by certain deficiencies that may compromise its legitimacy. They need to be fixed urgently. First, obsession with the death sentence is counter- productive for multiple practical reasons. It would make the repatriation of drug traffickers back to Sri Lanka difficult. Countries that do not condone death sentence will hesitate to send drug traffickers to a country, where they could be sentenced to death.  Some other states and international agencies may be less inclined to share intelligence with Sri Lanka, effectively affecting our surveillance and interception capabilities. 
Also, international co-operation in training, and equipping local officials and agencies could well be hampered, especially at a time, Sri Lanka is looking forward to modernize its capabilities in counter-narcotic operations. 

Second, notwithstanding the moralistic banter against the death sentence, the state’s right to execute its offenders after a due judicial process need not to be forsaken- however, each such execution has to be justified in a utilitarian rationalization. I.e. as an action taken for the interest of the largest possible number of people, even at the  expense of a few.
How many is too many is the question: hanging ten, if it serves the objectives, may be OK. But, hanging 1000 would unleash a Jacobean frenzy and defeat the objective itself. 
If death sentence is to be a sufficient deterrent, Sri Lanka has to keep hanging drug traffickers in droves in order to maintain its high retributive cost.  On the other hand, risk and reward  of drug trade is high. Whenever the previous status quo is momentarily suspended, drug dealers would resume dealing in search of higher rewards. 

The question is how many drug traffickers, the country would have to hang in order to maintain that status quo. Too many executions would be a bad advertisement for  the living, the country, economy and tourism industry.  On the other hand, too few would encourage drug traffickers to take a calculated risk.

A better alternative would be to introduce strict custodial sentences in maximum security prisons, which could be administered by military police until the prison department is cleaned up. Alternatively, special criminal courts in line with Pakistan’s anti- terrorist courts and new legislations could be introduced to expedite the prosecution of drug trafficking related crimes.

Third, the on-going anti-drug campaign is bereft of a clear sighted effort for rehabilitation of drug addicts. There are around 50,000 heroin addicts in the country, majority of whom are repeated offenders. 

In Sri Lanka, like elsewhere in the world, 80 per cent of rehabilitated heroin addicts relapse. Treatment methods in most rehabilitation centres here are antiquate. Majority of them do not provide skill and vocational training and psycho-social support after the release.  The majority of rehabilitated drug users who return to their former environment soon relapse to heroin use.

In 2017, there were 29,288 arrests of heroin users in the country, which accounted for 36 per cent of total drug related arrests. The majority of the drug related arrests were linked to Cannabis( 51,788 or 63.8%), according to the statistics of National Dangerous Drug Control Board.  

The idiosyncrasy of Sri Lanka’s drug laws is that it lumps together soft and largely innocuous drugs such as Cannabis with hard, and extremely addictive drugs such as Heroin and Meth.  That lack of vision distorts a pragmatic approach.

For instance, though over 29,000  heroin related arrests were made in 2017, only 2500 drug addicts were rehabilitated during the corresponding year. Others spent time in prison with hard core criminals or released after paying a fine, and returned to drug use.

Without a long term rehabilitation program of drug addicts, the anti-drug program would lead nowhere.

The government should take the lead in rehabilitating drug addicts, and set up rehabilitation centres that employ scientific methods to combat addiction and relapse, and also provide skill training for the drug users to enable their integration back to society. In order to establish a sufficient deterrent against relapse, the  release should also be subjected a period of probation , and compulsory visits to a case officer and random drug tests.

Fourth, hard drugs, especially heroin is now a community problem.  Therefore, community level advocacy campaigns should be launched, highlighting the danger; educating the school children, and identifying problem kids and youth, who need help before they reach a higher level of addiction.

Finally, it is anybody’s guess that the anti-drug program is intrinsically associated with the president’s bid for a second term.  However, overly politicizing the national effort to eradicate drugs, even though it is undertaken at the behest of the president, would erode its legitimacy. The president should not succumb to temptation to politicise it.

Instead, he should strive to build an institutional apparatus and a framework that would outlive his tenure.  He should do that urgently, because no one is sure whether his possible successors would have a similar conviction to fight the underworld  and drug trade, or would opt to profit from it.

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Video Of Violent Misogynist Attack: Activists Condemn

APRIL 10, 2019

A video that warrants the strongest possible content warning, featuring an act of extreme violence inflicted upon a popular actress, has been released on social media [Colombo Telegraph refrains from providing the link to the video, in an effort to reduce clicks and further publicity to it]. The actress, Piyumi Hansamali, is a popular public figure with a very strong social media presence. The video shows a [cis] man assaulting the actress, violently trampling her neck and chocking her. It shows Hansamali being chocked and in a situation of extreme distress. “This video is an expression of extreme violence, and content of this nature should not be allowed on public social media without prior moderation”, commented Uvindu Kurukulasuriya, founder and Editor-in-Chief of Colombo Telegraph.

“This kind of video violates the minimum ethics of a decent and civilised society”, commented Thiyagaraja Waradas, Senior Lecturer at the University of Colombo, currently doctoral scholar at the University of Bath.

Waradas further added “an immediate inquiry should be carried out by the Women’s Affairs Minister, and the state should take every action to ensure that every single individual involved in this shameless act, as well as its filming, projection, and social media dissemination, should be brought in front of the law, so that the victimised party can have access to due support and justice”.

Expressing outrage at this incident and the video, Senel Wanniarachchi, a gender justice activist, author and scholar at London School of Economics, commented: “Where is our collective outrage on the said video? The fact that the man in question knew he can not only act in the way he did, but also have evidence of his action posted on social media, speaks volumes about the culture of impunity surrounding violence against women and girls in Sri Lanka and the fact that Facebook allowed the said video to be posted and reproduced online shows how this level of impunity that exists offline is mirrored in the online spaces as well”.

Gender justice activist, scholar and author Dr Chamindra Weerawardhana categorically condemned the violent video, noting that: “There is a thesis propagated by some that this entire video could be a clickbait publicity stunt. This view, whether it is substantiated or not, is beside the point. The whole point here is that there is a public video, where a cisgender woman is being violently assaulted, with a man’s foot on her neck. This kind of misogynist violence should have absolutely no place whatsoever in our society. The biggest problem here is also that the men who did this assume that their behaviour is permissible. This tells us that there’s something deeply rotten about masculinities in Sri Lankan society. This kind of video is an incitement to misogynist violence”.

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Present power crisis – The Chinese factor

 

By Dr. Janaka Ratnasiri-April 8, 2019, 8:50 p

In response to the writer’s previous articles on the present power crisis published in the Island of March 28th and April 05th, he has received from an investor some new information which would shed light on the real party behind the present power crisis. This investor claims that he has submitted a proposal in response to a call for proposals published in the press by the Sri Lanka Ports Authority (SLPA) for setting up business ventures at Hambantota Port.

The information to be revealed hereunder could be considered confidential as they refer to Cabinet discussions. Since much misinformation about the present power crisis is being circulated by people in authority including politicians (which includes the President himself), ministry officials, professionals in the field and the media, to put the record straight, the writer feels that this information should be revealed in the public interest.

 

Proposal to build 1200 MW LNG power plant at Hambantota

A press notice calling for proposals says the investor is required to design, build, finance, manage and operate the business venture to be set up at the Hambantota Port, where 17 m deep jetty and a 610 m long berth for oil and gas projects are available. The closing date for receiving proposals was 24. 08. 2012. In response, the investor has submitted a proposal to build an LNG receiving terminal at the Hambantota Port along with a 1200 MW natural gas fired power plant in the Port premises, which has been accepted by the SLPA.

After evaluating the proposals and short-listing them, which took about one and a half years, the said proposal was recommended to the Cabinet by the then Minister of Ports and Shipping in March 2014 and was taken up at the Cabinet meeting on 03. 04. 2014. The Cabinet memorandum has recommended the construction of a 1200 MW of LNG power plants phased out over a period of eight years, subject to the investor entering into a Joint Venture Company (JVC) with the CEB and BOI and 10% shares issued to the Treasury. The power purchase agreement was to be entered by CEB with the JVC.

Subsequent to the recommendations made at this cabinet meeting, Secretary to the Treasury summoned a meeting of representatives of the Ministry of Ports & Shipping, Ministry of Power & Energy, Ministry of Investment Promotion and other relevant officials. According to a report, dated 09. 10. 2014 circulated as a follow-up to this meeting by the Secretary of Ministry of Ports & Shipping among all the stakeholders, the following observations were made at the meeting:

Need for a power plant at Hambantota

About 10 industrial/commercial projects were approved during 2011 and 2013, but work on any of them did not commence mainly because no assurance could be given of an uninterruptible power supply. Hence, building the proposed power plants would be a prerequisite for the development of the industrial zone associated with the Hambantota Port. It has also been reported that the existing industries are very enthusiastic about having an LNG power plant at Hambantota as it will not cause pollution including coal ash.

The investor present at the meeting gave the assurance that he could supply uninterrupted power as required and build an LNG terminal hub, which meant the re-exporting of LNG as well as extending its use in other sectors locally in transport. The Investor agreed to form a JVC as suggested and the SLPA agreed to lease out the necessary extent of land within the Port premises to set up the LNG storage tanks and the power plant.

Cheapest offer for power generation

One critical factor referred to at this meeting was that only the energy cost would be charged at not more than UScts 7 per kWh of electricity, and that no capacity charges or other hidden costs would be levied. This is very important because capacity charges are payable whether the plant runs or not. It was reported in media that the CEB had been paying billions of rupees as capacity charges for the controversial diesel power plant in Jaffna even during the period when it remained shut down.

The outcome of the above meeting, along with the observations of the Ministry of Finance was again submitted to the Cabinet for consideration at its meeting held on 30. 10. 2014. Subsequent to receiving the concurrence of the Cabinet, the Secretary ofthe Ministry of Ports & Shipping wrote to the Chairman of SLPA on 02.12.2014 directing him to implement the project. This was followed up by the SLPA writing to the Investor on 20. 04. 2015, releasing 30 ha of land within the Port premises requesting him to take necessary follow up action.

Cancellation of the project by CCEM

The Investor subsequently commenced preliminaries such as getting the environment impact assessment report prepared. Then to his surprise, he received a copy of a letter dated 21. 06. 2016 from the Chairman of SLPA, addressed to the Secretary to the President, informing him that the project had been disallowed by the Cabinet Committee on Economic Management (CCEM) on a decision taken at a meeting on 25. 05. 2016. The reason given was that the CCEM had decided to put on hold all the projects planned under the RFPs because the government had decided to hand over the Hambantota Port to the Chinese!

Would a similar thing happen anywhere else in the world? The government invites proposals from investors to set up business ventures at their own expense and approves a project from an investor who has submitted a proposal to generate clean power at a rate cheaper than what the government spends currently and gives the green light for him to proceed after releasing land also. Then China comes in and demands ownership of the Port in exchange for the debt the government owes China. The government meekly agrees to cancel all commitments it has made to investors. Isn’t this a shameful act done with no self-respect? The government could have handed over the Port but without cancelling the projects it had already agreed to. This is after the BOI collecting over LKR 9 million from the investor as application processing fee. What signals would this action send to new investors?

One-stop centre for BOI projects at Hambantota – a farce?

It was reported in the media recently that the BOI has opened on March 23, 2019, a one-stop service centre for the benefit of businessmen who wish to invest in projects at the Hambantota Port. The new centre was reported to be a joint venture between the BOI and the new Port Authority, to provide all information about Sri Lanka’s investment policies to those interested in investing in Hambantota. The Hambantota Port was targeting port-related investments within the 3.5 square km area allocated for the Hambantota Port’s development. However, when the potential investors come to know of the government’s decision to cancel projects which had already been granted approval, under pressure from a foreign government, won’t any sane party think twice before deciding whether to come to Hambantota?

Had the project not been aborted by the government, it would have commenced in mid-2016 after completing the EIA within one year. With the fuel being natural gas, there would not have been any pollution unlike in the case of a coal-fired power plant, and the location has already been set up, EIA approval would not have taken much time. With the construction of the plant to be undertaken by the investor, there would not have been any ministry tender procedures which could have delayed the process. The time span could have been further reduced if the proposal had not been referred to the Cabinet twice.

Loss due to cancellation of project

Consequently, the first phase of simple cycle operation generating 200 MW of power could have been completed by the end of 2017 and the balance work generating additional 100 MW of power generation by the end of 2018, generating a total of 300 MW of clean power in 2019 at a cost of LKR 12.25 a unit (@ LKR 175 per USD). CEB’s Statistical Digest for 2017 has reported that the average fuel cost alone for operating the CEB’s thermal power plants to be LKR 12.22 a unit in 2017.

With overheads and cost of operation and maintenance added, the cost of generation would likely to exceed LKR 20 a unit. The other important factor is that there wouldn’t be any external costs as there is no pollution caused by natural gas. Under such circumstances, wouldn’t the proposed LNG-operated power plant, expected to generate about 2000 GWh annually, been a wind-fall to the CEB, helping it save around LKR 15 Billion annually? This is the loss to the country by cancelling the proposed LNG project.

Parties responsible for cancelling the project

Now, who is responsible for killing this clean power project when it was about to take off the ground with no financial burden on the government? Was it the President or the Prime Minister or the line Minister or the Cabinet or the CCEM? Somebody should take the responsibility. Apparently, this matter has been questioned even in the Parliament, recently. They cannot get away by trying to put the blame on the PUCSL for not approving the CEB plan promptly, which has no relevance to the present crisis.

A lot of people talk about the President killing the Sampur project but even if it had been allowed to proceed it wouldn’t have solved today’s crisis as explained in the earlier articles by this writer. But the general public does not seem aware that the government killed the LNG project, which could have generated clean and cheap power by now if it had been allowed to proceed. It is sad that the government did so, disregarding the national priorities just to make the Chinese happy.

In his previous article written on April 5th, the writer said that Sri Lanka didn’t have the courage to say ‘no to India when it offered to build a coal’-fired power plant at Sampur with conditions when the CEB had already called for proposals for setting up power plants with no financial commitment. All these proposals were set aside in favour of the Indian offer and that was the first mistake Sri Lanka made.

Second instance of yielding to pressure

from a foreign country

Now, this is the second mistake made by the government when it cancelled the LNG project, which was about to commence. In so doing, Sri Lanka demonstrated to the world that it had no backbone to tell China that the country had to give priority to its national needs. Why is the country so subservient to foreign powers? Why do our leaders allow these foreign powers to bully Sri Lanka in this manner? This has resulted in everyone being troubled by power interruptions which affect the day-to-day activities as well as the economy of the country?

Instead of owning up to their own mistakes responsible for killing the power projects planned earlier or trying to find out what has happened in the past, the country’s leaders seem happy to bash officials referring to their conflicts which have no relevance to the current power crisis. If the leaders are not capable of logical thinking, how can they run a country?

Conclusion

It appears that several factors have contributed to the present power crisis.

=Firstly, the undue long delay in selecting an investor to build the 300 MW combined cycle power plant at Kerawalapitiya, for which proposals were invited in November 2016. The CEB’s procurement division is totally responsible for this as described in a previous article.

=Secondly, the undue long delay of over 10 years for finalizing the plans to build the coal power plant at Sampur, for which CEB and NTPC delegates who took part in the negotiations are responsible.

=Thirdly, the cancellation of the BOO project inviting proposals in November 2006 to build 4x300 MW coal power plants on the Southern coast during 2012 – 2020, for which the line ministry and CEB are collectively responsible.

=Fourthly, the cancellation of the BOO project to build a 1200 MW LNG power plant at Hambantota, initially with 300 MW capacity, when it was about to commence work in 2015, for which the Government including CCEM was responsible.

In summary, it can be said that politicians, government policymakers, economic advisers, CEB engineering professionals and the government procurement committees are equally responsible for the present power crisis.

 

Not holding PC Elections: Implications for human rights and national reconciliation

In the immediate context, the holding of Provincial Council Elections without delay is a must to ensure people’s fundamental rights to elect their representatives (not ‘rulers’ as some people define!) to the provincial councils. This is most important in the case of the Northern and the Eastern Provinces. Otherwise, what is the point of devolution, provincial councils and the talk about reconciliation? – Pic by Shehan Gunasekara

Wednesday, 10 April 2019 

Application of human rights principles, when taken with necessary responsibilities, could play a major role in national reconciliation, but not limited to that. Human rights have a broader meaning and value when applied in a progressive and a realistic manner to improve not only people’s civil and political rights but also economic, social and cultural rights. This kind of a general upliftment of human rights across ethnic, religious, regional, class or gender distinctions can immensely contribute to the goal of national reconciliation. 
When people have recognised rights, it is the duty of the Government and the office holders (i.e. duty bearers) to fulfil them, while the people themselves should exercise these rights with responsibility.
Necessity of elections

In the immediate context, the holding of Provincial Council Elections without delay is a must to ensure people’s fundamental rights to elect their representatives (not ‘rulers’ as some people define!) to the provincial councils. This is most important in the case of the Northern and the Eastern Provinces. Otherwise, what is the point of devolution, provincial councils and the talk about reconciliation?

Sri Lanka is a representative democracy (Preamble to the Constitution); presently at three levels of national, provincial and local. According to Article 3 of the Constitution, “In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of Government, fundamental rights and the franchise.” Therefore, franchise is most fundamental to people’s sovereignty, apart from Government and fundamental rights.

Article 21 of the Universal Declaration of Human Rights (UDHR) says “Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.” When it says ‘in the Government,’ it means the Government at various levels and the level of the province is most important in terms of devolution at present in Sri Lanka.

Article 21 (3) particularly says, “The will of the people shall be the basis of the authority of government; this will/shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.” Without the ‘will of the people’ there is no proper authority for the provincial governments. To carry out this authority, there should be ‘periodic and genuine elections’.

Not holding elections to the provincial councils is a violation of all these norms and principles by the UNF Government. If there were ambiguities or differences about the electoral system, and the law pertaining to holding elections, four years since the assumption of Government in January 2015, even without a proper majority at the beginning, is a fair enough time to sort out these matters. Not doing so is either utter incompetence or callous disregard for democracy and will of the people. 
Dismantling of Provincial Councils? 

The term of the Northern Provincial Council expired in September 2018. Now what you have is direct Governor’s rule, however mild it could be. The last Provincial Council, with C.V. Wigneswaran as the Chief Minister, was the only elected council for the province for the last 32 years. When the first elections for the council was about to be held in September 2013, Lisa Curtis of The Heritage Foundation said the following:



“Tomorrow, for the first time in 25 years, Sri Lanka will hold elections to its Northern Provincial Council, a step that could facilitate reconciliation between the country’s majority (mostly Buddhist) Sinhalese and minority (mostly Hindu) Tamil populations.”

One may consider the statement to be too optimistic, but there was a significant truth in it. It is strange that the UN Human Rights Council or its High Commissioner has not noticed this aberration of human rights by not holding elections for the Northern Provincial Council for the last six months. Even a Minister like Mangala Samaraweera, who pretends to be a champion of human rights, is mum about the matter.

Much worse is the case of the Eastern Provincial Council which had lapsed since September 2017, now for 18 months. Holding of elections for all other provincial councils is of similar importance because voting and elections are most treasured in people’s political rights. It is important for reconciliation itself as Lisa Curtis hoped.

The appreciation of devolution of power by the people in the south largely hinges on what they also receive as devolution. The considerable change of position on devolution by the JVP and certain sections of the SLFP depended largely on this factor. They opposed devolution at its introduction in 1987.
Repercussions of not holding elections

Not holding elections, arbitrarily fixing them, or postponing them can have major repercussions on political frustration, emergence of rebellion, conflicts and violence. Even the Local Government Elections that were finally held in February 2018 were conducted only after seven years to majority of the councils (322).

The usual term of a Local Government institution is four years with the possibility of extending up to one year. The previous elections to these councils were held in 2011, and the terms expired in March 2015. Although the terms were extended to May 2015, since then all these were dissolved or dismantled. People in these areas were without local councils or people’s representatives for nearly two years or 21 months. 

That was a major reason why the voters rebelled against the incumbent Government, and its allies, and overwhelming supported a reconstituted new political party, Sri Lanka People’s Front (SLPP), although under discredited old leaders. Similar political trends could be seen even in the North, going against the establishment and established political parties at the same elections.

The situation in the north was more damaging than in the south without holding elections to local councils for a very long period of time. A major reason undoubtedly was the war situation, but even after that, for example, Local Elections were not held in the Mullaitivu District in 2011. Therefore by February 2018, the vacuum was so vast. 

When we look further back, not holding Local Government Elections between 1977 and 1987, the ambiguous experiments of District Development Councils (DDC) coming in between, had major repercussions on the alienation, frustration and disillusionment of minority communities and the youth. More disastrous and despicable were the rigging of the DDC Elections in Jaffna and burning of the Jaffna Library in 1981. 

It is true that populist parties can utilise election processes to consolidate their political powers as we could witness from the Rajapaksa Government during 2005 and 2015. This happens particularly when the other political parties are backward, lethargic or out of touch with the people. This is also not a reason for those parties to postpone or not holding elections when they come into power. Unfortunately, this is exactly the situation at present. Polarisation on ethnic or religious lines also could happen under such circumstances, extreme political rhetoric and programs gaining currency.

Holding of elections to the provincial councils without delay is a must for national reconciliation and ensuring the most important political right of the people in general and all over the country. If not, more polarisation could be seen in the coming period and particularly at the unavoidable presidential elections by the end of the year. 
Present measures on reconciliation  

There is no doubt that the present Government has taken some important measures and steps towards national reconciliation in terms of addressing the past. (1) Release of the private land held by the military during the war to the original owners, (2) the establishment of the Office of the Missing Persons, and (3) the recent establishment of the Office on Reparation could be considered the most important three measures. However, addressing the current and the present requirements for reconciliation is also important. 

A draft on Counter-Terrorism Act is also now submitted to replace the existing Prevention of Terrorism Act (1978). There are serious concerns however that in certain areas, the proposed legislation could be more draconian than the existing one. If that is the case, it is a serious human rights issue that should be addressed. A concept paper has also been submitted to the Cabinet on a bill to establish a Truth and Reconciliation Commission, the content of which is not yet known. 

It has to be admitted that even the previous Government also took some measures, within their own point of view, in addressing some of the issues of the war affected and addressing the past. ‘Rehabilitation, Resettlement and Reconstruction’ or the three ‘R’s as they said were some of their pet topics. The Lessons Learnt and Reconciliation Commission (LLRC) was appointed within one year after the end of the war and the report was submitted within 18 months thereafter. But the implementation of the LLRC recommendations was terribly slow or hesitant.

The present Government is also slow although it has gone quite faithfully in line with the ‘international community’ in selecting measures and in implementing them. Most controversial has been the co-sponsoring of all the resolutions submitted in the UNHRC since the most questionable resolution 30/1 in October 2015 drafted by the US.
Conclusion  

The question is whether the above line of strategy would facilitate reconciliation in the country or trigger more controversies, if not future conflicts? Slow implementation or vacillations have already frustrated many sections of the Tamil community. Some are undoubtedly asking for the ‘pound of flesh.’ It is almost 10 years since the end of the war. What we have seen recently at UNHRC is the second rollover. 

There is also a strong opinion that the UNHRC resolutions are more of ‘black mailing’ a strategically important small country than genuinely addressing human rights or reconciliation issues. It could be a combination of both. There is an apparent alignment between certain sections of the present government and those who execute this international strategy. A clear slant of all of them is a thrust against the previous Government or the present Opposition. But to any independent observer, reconciliation requires the participation of all stakeholders, representatives of all communities, and political parties. Otherwise, it is not going to be sustainable. A major mistake of this Government in their reconciliation strategy has been the side-lining of the representatives of the last Government or the Joint Opposition.

As we have argued from the beginning, most important at present is the holding of Provincial Council Elections without any further delay. 

POST-INDEPENDENCE CONSTITUTIONS AND THEIR AMENDMENT PROCEDURES

Although the 1972 Constitution expressly acknowledged the concept of sovereign power of the people, it did not contain provisions which made that concept justiciable. Apart from this, while the Constitution provided for a separate chapter enshrining fundamental rights and freedoms, there was no specific machinery to challenge any executive or administrative action which might have been violative of those rights and freedoms. Furthermore, the Constitution expressly precluded judicial review of enacted legislation, but permitted pre-enactment judicial review of legislation. This stood in contrast to the position under the Soulbury Constitution under which as interpreted by the Courts it was possible to challenge any legislation enacted by Parliament after its enactment

Tuesday, April 9, 2019

The Constitution is the supreme law of the country. Here the word ‘Constitution’ is used to refer to a special document having a special legal sanctity in which some of the more important constitutional rules, values and goals are set out. A Constitution must not be too rigid or too flexible in regard to Amendments.

This Constitution was granted by the British following the recommendations of the Commission on Constitutional Reform established in 1945 under the Chairmanship of Lord Soulbury for the purpose of the country to become an independent ‘dominion’ within the British Commonwealth. It was given effect to by the Ceylon Order in Council of 1946 read together with the Ceylon Independence Act of 1947 and came into force on February 4, 1948.

By Amendment No.36 of 1971 to the Soulbury Constitution of 1946, the Senate was abolished on October 2, 1971, prior to the adoption of the new republican Constitution of Sri Lanka on May 22, 1972. The United Front, an alliance consisting of the Sri Lanka Freedom Party and the leftist parties that came to power at the May 1970 election introduced a Parliamentary Bill to abolish the Senate. The Bill’s second reading was passed by the House of Representatives on May 21, 1971. The Senate met for the last time on September 28, 1971. The Ceylon (Constitution and Independence)
Amendment Act No.36 of 1971 received Royal Assent on October 2, 1971, becoming an Amendment to the Soulbury Constitution. The Senate was abolished after nearly 24 years of existence. This Constitution (save for section 29) was to a large extent a codified model of Britain’s ‘unwritten’ Constitution. However, being codified, it could not be altered or amended without a two-thirds majority of the total membership of the House voting in favour (Section 29(4)).

However, judicial interpretation of section 29 had unexpected consequences. Section 29(1) empowered Parliament to make laws for the ‘peace, order and good government’ of the island. Section 29 (2) rendered void any law or any part of a law that sought to restrict the free exercise of any religion or subject persons of any community or religion to disabilities or restrictions not imposed on other communities or religions. Section 29(3) declared that any law made in contravention of sub section (2) would be void to the extent of such contravention. Section 29(4) declared that no Bill for the amendment or repeal of the Constitution shall be presented for Royal Assent (the Sovereign being represented by the Governor - General) unless it bore the Speaker’s certificate to the effect that it had been passed by Parliament by a two-thirds majority vote.

Certain doubts and ambiguities persisted with regard to the issue of the competence of the Sri Lankan Parliament to amend section 29(2) of the Soulbury Constitution, which the Privy Council interpreted in Ranasinghe’s case as containing an absolute limitation rendering it completely unalterable. In this case of Bribery Commissioner v Ranasinghe the actual dispute was whether an amendment to the Bribery Act creating a special Bribery Tribunal had been passed with the required two-thirds majority in terms of Section 29(4) in view of the fact that it was in conflict with the provisions of Section 55 of the Constitution dealing with judicial power. However, in the course of reviewing the provisions of Section 29, the Judicial Committee of Privy Council hearing the case stated that section 29(2) set out ‘entrenched religious and racial matters which shall not be the subject of legislation’. These matters in the view of the Judicial Committee represented ‘the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se, they accepted the Constitution and these are therefore unalterable under the Constitution’.

Deriving its authority directly from the sovereign will of the people of Sri Lanka, the Constituent Assembly process was invoked in 1970 to frame a new Constitution by the new Government. The elected members of the House of Representatives who were the ‘founding fathers’ met as duly authorized representatives of the people at a Constituent Assembly to establish a new Constitution. This procedure was adopted in order to establish the autochthony of the Constitution or to cause a break in legal continuity with the previous legal order rooted in Britain. Two fundamental features underscore the transition from a Dominion to a Republican Constitution, namely, the principle of autochthony and the doctrine of the supremacy of Parliament.

Ironically, after Sri Lanka enacted the 1972 Constitution to become a Republic, the UK Parliament enacted the Sri Lanka Republic Act 1972 to make provision for Ceylon to become a Republic within the Commonwealth under the name of Sri Lanka.

The 1972 Constitution

The 1972 Constitution proclaimed Sri Lanka to be a ‘Free, Sovereign and Independent Republic’, and also to be a unitary State. In place of Article 29(2) of the Soulbury Constitution, the 1972 Constitution guaranteed equality to all citizens and dealt with religion in Article 6 of the 1972 Constitution.

Although the 1972 Constitution expressly acknowledged the concept of sovereign power of the people, it did not contain provisions which made that concept justiciable. Apart from this, while the Constitution provided for a separate chapter enshrining fundamental rights and freedoms, there was no specific machinery to challenge any executive or administrative action which might have been violative of those rights and freedoms. Furthermore, the Constitution expressly precluded judicial review of enacted legislation, but permitted pre-enactment judicial review of legislation. This stood in contrast to the position under the Soulbury Constitution under which as interpreted by the Courts it was possible to challenge any legislation enacted by Parliament after its enactment.

Under the 1972 Constitution, the power to repeal or amend the Constitution was vested exclusively in the National State Assembly. The special majority required for Constitutional amendment was two-thirds at least of the whole House (including those absent) voting affirmatively in favour of passing the provisions. (Article 51(5)). No referendum was required but in the event of repeal of the Constitution a new Constitution had to be enacted to replace the one that was being repealed. Suspension of the Constitution was prohibited but the National State Assembly could by a two-thirds majority pass a law that was inconsistent with the Constitution. Compared to the 1972 Constitution, the provisions of the 1978 Constitution relating to Constitutional Amendments are different due to certain provisions being entrenched.

A procedure was also introduced under the 1972 Constitution for challenging Parliamentary Bill before a special Constitutional Court set up under Article 54 (1) of that Constitution whose jurisdiction could be invoked by any citizen. However, this right could be suspended in the case of a Bill certified as ‘urgent’. The provisions of these last two paragraphs were reproduced with some variations in the 1978 Constitution. Under the 1978 Constitution the Supreme Court was substituted as the highest Court of the land for the Constitutional Court under the 1972 Constitution. The Constitutional Court set up under the 1972 Constitution in its ruling on the Local Authorities (Imposition of Civic Disabilities) No.2 Bill rejected the argument that there were certain provisions in the Constitution which were fundamental to it which could not be changed or amended or repealed even with a two-thirds majority.

One of the significant orders of the Constitutional Court was in relation to the Excise Amendment Bill which it held conflicted with the Constitution – one of the few Bills which the Constitutional Court had held to be contrary to the 1972 Constitution. The Court noted that the Bill on the face of it sought to vest an unfettered discretionary power in the Minister without assigning any reason to direct any authority granting licence to grant a licence, to renew or cancel a licence and to compel such authority to give effect to discretion. Accordingly the Constitutional Court held that the Bill was inconsistent with Section 18(1) (a) of the 1972 Constitution. Once the Court has held that a Bill conflicts with a provision of the Constitution it could be enacted, if a two – thirds majority of the entire membership of the National State Assembly vote in favour of it.

Following the General election in 1977 the United Front government that had introduced the 1972 Constitution was defeated and the United National Party came to power with a 5/6th majority of the seats in Parliament. Initially the new government sought to amend the 1972 Constitution in a sweeping manner so as to convert what was still essentially a Westminster model of government into an executive Presidential system. The change was effected under the terms of the 1972 Constitution.

The two factors that influenced the former President Jayewardene’s long standing advocacy of a presidential system for Sri Lanka as stated by him were a search for executive stability and an anxiety to create and maintain consensus of politics.

Second Amendment to the 1972 Constitution

The Second Amendment Bill was rushed to the Constitutional Court seeking an opinion and by the debate in the National State Assembly was taken up only two weeks later. The Bill was certified on October 20, 1977, but was brought into operation only on February 4, 1978 for the new President to take office on Independence Day.

Mr. Jayewardene had been appointed as the Prime Minister on July 23, 1977 and would have been entitled to continue in that office for six years from that date. The Second Amendment provided for the incumbent Prime Minister to become Executive President and to be in office for six years from the date on which he assumed the Presidency, which would be until February 4, 1984.

The 2nd Amendment, albeit brief in its content, sliced through the Constitution of 1972 and, by virtue of Section 19 and the Amendments to Section 20, the President became the Head of State, the Head of the Executive, the Head of Government and Commander -in -Chief of the armed forces and was empowered to declare war and peace.

Significantly, Section 27(1) which required to President to act on the advice of the Prime Minister or a Minister assigned by the Prime Minister for this purpose, was explicitly repealed, elevating the President to the status of sole and untrammeled repository of Executive Power. Section 5, the key provision of the Constitution of 1972 which relates to the exercise of sovereignty, was repealed and replaced by the following sections:

“The National State Assembly and the President are the supreme instruments of State power of the Republic, and accordingly, the Sovereignty of the People shall be exercised in the following manner:
(a). the legislative power of the People shall be exercised by the National State Assembly;
(b). the judicial power of the People shall be exercised by the National State Assembly through courts and other institutions created by law except in regard to matters relating to the powers, immunities and privileges of the National State Assembly; and of its Members, wherein the judicial power of the People may be exercised directly by the National State Assembly according to law; and
(c). the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President."

By virtue of Section 28B of the Second Amendment to the Constitution of 1972 the then Prime Minister J. R. Jayewardene was deemed for all purposes to have been elected President of Sri Lanka.
The Second Amendment to the 1972 Constitution was passed on October 4 within two months of the General Election of 1977 establishing the office of the Executive Presidency. The Second Amendment amended section 94 of the 1972 Constitution to remove the Prime Minister’s power to determine the number of Ministers and assignment of their subjects and functions to vest these powers in the President who could in addition take charge of any subjects not assigned and any ministry to which a minister is not appointed. This vital amendment was debated in the Assembly for a short time with the Opposition boycotting the deliberations. At the time of introducing the 2nd Amendment, Prime Minister Jayewardene clarified other changes to be considered by a Select Committee which would also seek the views of political parties not represented in the Assembly.

Accordingly a Select Committee was convened in November in 1977 to consider and draft further revisions to the Constitution. The new document was adopted by the National State Assembly in August in 1978 and inaugurated on September 7, 1978. In 1978 the Second Republic Constitution was enacted under section 51 of the 1972 Constitution. Therefore the present Constitution draws its validity from the 1972 Constitution, which in turn was brought into operation by the Constituent Assembly established through a people’s mandate.

The Constitution of 1978 has taken over the wording of the Second Amendment to the constitution of 1972 with regard to the exercise of sovereignty with the significant inclusion of fundamental rights the franchise as forming part of the sovereignty of the people. As regards Executive power, Article 4(b) reads as follows:

‘The executive power of the People, including the defence of Sri Lanka shall be exercised by the President of the Republic elected by the People’.

The words ‘elected by the People’ are the only words added to the original formulation in Section 5(c) of the Second Amendment to the Constitution of 1972. These words are significant and add an extra dimension to the executive power including the defence of Sri Lanka which is reposed in and exercised by the President, through the mandate directly received from the People in the exercise of their franchise at the election of the President.

This is distinct from the mandate received by Members of Parliament who exercised the legislative power of the People in terms of Article 4(a).

From the preceding brief account of post-Independence constitutional history of the country, it is clear that under the Independence and 1972 Constitutions, the executive power including the defence of Sri Lanka was exercised by the Cabinet of Ministers by the Prime Minister.

By the Second Amendment to the Constitution of 1972, the reference to the Cabinet of Ministers in Section 5, which dealt with the exercise of executive power and the defence of Sri Lanka was removed. That removal of the characterization of the Cabinet of Ministers as the repository of Executive power including the defence of Sri Lanka was further entrenched by Article 4(b) of the present Constitution of 1978 which links the exercise of such power to the mandate received by the President from the People who are sovereign.

(The writer is Retired Professor in Law in the University of Sri Jayewardenepura. He is an Attorney-at-Law with Ph.D. in Law as well). 

‘Festival for Our Planet’ highlights Sri Lanka’s urgent need to address climate change

10 April 2019 

Recently, the NGage Goodvocacy and the Environmental Foundation Limited hosted their very first ‘Festival for Our Planet’ at the Good Market as an environmental awareness event to coincide with the worldwide youth climate strike that took place on March 15. The aim of the festival was to educate and mobilise enthused citizens about climate and environmental justice. 

The first worldwide youth climate strike saw children and teenagers from 125 countries taking to the streets to demand that world leaders declare a climate emergency and take immediate action to halt the effects of climate change today, to give them a future for tomorrow. 

The United Nations Intergovernmental Panel on Climate Change (IPCC) estimate we have only 10-12 years before the earth’s temperature rises to more than 1.5 degrees Celsius above pre-industrial levels. Anything above that is essentially plotting the course for human extinction due to serious weather events, food and water scarcity, illness and loss of habitat. 

In Global Climate Risk Index 2019 - a report that considers countries most affected by climate change either through death, sickness, loss of home and/or income, Sri Lanka came in second. Every year, millions of people are affected by floods and unless changes are made, it’s only going to get worse. 

On the day, twelve speakers ranging from high profile consultants, environmental activists, UN Sustainable Development Goal advocates, and motivational speakers covered topics ranging from global warming and climate change to action to halt environmental degradation through pollution of oceans, water and air, protecting our forests, advocating sustainable consumption and switching from fossil fuels to renewables, and driving other climate-smart initiatives. 

Dr. Ravi Fernando, Founder and CEO of Strategic Corporate Sustainability spoke on the topic of ‘Water, Forests and Sustainability’. Fernando was straight to the point. “If we keep warming up the planet, we are all going to end up drowning from rising sea levels. If the planet crosses the 2 degrees from its current temperatures, we are talking of a 20-foot sea level rise. That’s what happened when we had the tsunami; the difference now is that the 20-foot sea level rise isn’t going to go back”.

One of the biggest causes of global warming? The burning of fossil fuels, such as coal and diesel. Fernando mentioned that Sri Lanka has plans for another 12 coal power plants, going against the worldwide action with countries such as Germany planning to close all their coal power plants by 2024. 

If the planet crosses the 2 degrees from its current temperatures, we are talking of a 20-foot sea level rise. That’s what happened when we had the tsunami

He believes that Sri Lanka needs to completely exit fossil fuels and encourage green energy such as solar power, and electric or hybrid vehicles. This echoes what the youth around the world also demanded from their Governments during the climate strike, a complete stop on the burning of any fossil fuels and for energy to come from only renewable sources. 

Forest cover and development 

Another main point Fernando underscored couldn’t have come at a more appropriate time with the current debate on the clearing of both Wilpattu National Park and Sinharaja Rainforest. “There is one natural resource which you and I cannot live without and that’s water”. 

“You can be sure if we keep deforesting, we will not have the water needed to exist. Currently, the average forest cover in countries around the world is 60%, Sri Lanka has only 16%.” 

“Sri Lanka has 25 districts and 22 districts are experiencing drought. If we don’t protect our forest cover, we will run out of water. Politicians tell us that we need to cut down the forest to create a new free trade zones to create jobs, but we don’t need to do that. We need to seriously understand that development can be achieved without deforestation. Look at Singapore for example, they grew as a population and increased their forest cover at the same time - they developed in a sustainable way”.
 
“Water is the most precious resource on the planet and we need to understand that global water security will become the flashpoint for global conflict in the coming years. Already Pakistan, China and India are fighting over water resources coming from the Himalayas. In the Nile, Ethiopia and Uganda are fighting for water” he concluded. 

Kithsiri Wijesundera, former Strategic Planning Director and General Manager of (NGage) Strategic Alliance spoke on the topic of ‘Sustainable Production and Consumption’ which looks at how people produce and consume goods such as food, water and energy. 

Circular economy

Sri Lanka currently runs along the linear economy model which essentially highlights the concept of take, use, throw. What we need to move towards is a circular economy, where materials can be constantly reused and recycled, therefore reducing the need to deplete natural resources to make new products. Wijesundera doesn’t believe that waste management can be solved with dumping in landfills. 

The answer, Wijesundera says, is for designers to look at designing products that after being used by consumers, they can be reused or recycled (at the very least, the raw materials should be extracted and used as secondary materials).
 
Wijesundera advised “Sri Lanka has been slow to change its mindset with regards to waste, most waste is not just garbage, it’s a valuable resource that can be used to make secondary products”. 70% of plastics can be recycled. 

He suggested it should be compulsory for companies to show consumers what sustainable products are, where they have been sourced from and the best way to dispose of that product. One of the largest barriers to waste disposal in Sri Lanka is consumers not knowing how to dispose of it properly. 

Apart from household goods, one area that people don’t usually consider in terms of sustainable consumption and waste is food. Wijesundera advised that in Sri Lanka there is an estimated 1.5 billion tonnes of food waste throw out annually, which is devastating when you realise that two Million people in Sri Lanka are hungry or undernourished. Most would agree that no-one should be throwing out food while there are hungry people in the country. At the other end of the spectrum, an additional two billion people are overweight, which leads to a huge strain on the medical system. On top of the health effects caused by too little or too much food is that agriculture, as well as the deforestation to grow it and the waste it produces, contributes to a huge amount of greenhouses gases. “Agriculture is also the biggest use of water worldwide and humans are using fresh water faster than nature is replenishing it” he warned. 

It’s easy to get disillusioned when the problem is so great, with many speakers reiterating that people don’t have to wait for their political leaders to take action, the individual has the power to make changes. Founder of Global Unites, Prashan de Visser in his talk on activism, explained that they have started educating kids all around the country, many of whom have already experienced negative effects of climate change. De Visser hopes that with these talks, they would become voices of change in their schools and communities. 

“Working on the environment is an amazingly rallying call to bring everyone together. If the planet fails, it doesn’t care about your religion, your ethnicity and your social statues. We are all going to struggle; we are all going to have to face the consequences. There are extremists trying to cause problems between Sinhala and Muslim communities, but what they don’t realise is that we need to stop fighting about what’s different about us, and instead, start working together to build this country to protect our environment. We may be ordinary individuals, but we can do extraordinary things”.

He finished his talk with the inspiring words of Margaret Mead, “Never doubt that a small group of thoughtful committed citizens can change the world; indeed, it’s the only thing that ever has”. If you are interested in hearing what the rest of the experts had to say, head over to NGage Goodvocacy’s Facebook page. 


One of the largest barriers to waste disposal in Sri Lanka is consumers not knowing how to dispose of it properly

In addition to the varied talks on the educative speaker platform, Al Gore’s famous documentary, An Inconvenient Truth was shown on the giant screen. The kids ‘plays hop’ encouraged children to get creative with art and express their ideas about the environment. 

The art installation by Dillai Joseph and Charith De Silva that featured Sanni masks were creatively refashioned to highlight environmental destruction. “Our over-indulgence in plastics, mindless deforestation, overcrowding by endless construction in cities, overuse of pesticides, improper waste management and an increasingly large carbon footprint per person are the demons possessing us today” said the creators. 

In addition, an exhibit of twenty creative posters conceptualised by NGage’s content curators and design team, was on show and is also available as a travelling exhibit for schools and any organisation that wants to educate its audiences and stakeholders with narrations in English, Sinhala and Tamil. 

The evening concluded with a concert featuring rock artiste Chitral Somapala, majored on ‘songs for the planet’ including ‘Wilpattuwe’ co-written with NGage’s Creative Director Chinthana Dharmadasa and included other performers like Nirmali & Harsha Markalanda and Thilan Wijesinghe.