Ayubowan! Adieu 2015 – whither 2016? What has been… what is to be... a year of Constitutionalism?

On 8 January last year the Sri Lankan citizen raised a majority voice across the country, against what was seen as an indefatigable force of abuse, corruption, tyranny and autocracy to declare loud and clear that we were reclaiming our sovereign right to govern ourselves; which Article 3 reposes in us absolutely, inalienably and forever and that is the source of all power. As someone who at least played some small part in rallying those forces I am concerned as to what is to become of that people’s power

Our glorious past vs. our modest present

This comes with an unconditional apology for this slight delay in our customary two cents worth that is usually promptly circulated on New Year’s eve, which was primarily due to logistical difficulties encountered in the process, as we have just returned to the Island; nevertheless those extensive travels did contribute much to the thoughts for this year, thus compensating for the few days delay! 

You may recall the article titled “My New Year’s Wish – A change of status quo” (from the press last new year’s eve) which was immediately followed, upon the people’s victory of 8 January with the sequel – “Our 3rd Independence”. 2014 was indeed an historic year when we marched together, you and I hand-in-hand and reclaimed for ourselves our inalienable sovereign right to rule this land. We’ll celebrate our first anniversary in a few days and as we look back on that historic people’s victory, it may also be an opportune moment to retrace our own steps and see how far we’ve come as a nation and a people; have we got the good governance and rule of law we fought for; if so, let’s build on it and if not, how do we get there? 

As we travelled last month through those ancient cities in Europe and marvelled at its richness of history and culture, I could not help a foreboding sense of sadness overcoming me for (1) regret that we have yet been unable to build similarly on our rich past and equal such development and (2) that for the most part, our leaders have continued to exploit the innocence of the majority of our People and hide them from that greater reality that is within reach of these goals, instead surreptitiously capitalising on our rich history for cheap political gain such as racism, religious intolerance and even ethnocentricism. 

Contentment vs. desire for success

At times I wonder whether it is the constant injunction on us to be “content with what we have” that propels us, as a nation, to settle for whatever that is dished out to us rather than actually allowing the natural human desire in us to fight for success and superiority. Yes indeed, we must be grateful for our noble truths and religious teachings that keep us in check spiritually, but can we not, whilst individually observing such precepts also arm ourselves as a nation to forge ahead, to reach targeted development and economic goals that have placed several other even lesser blessed nations far ahead of us? 

Have we noticed how at most times we’re driven by statements like “oh well, at least we have this so let us be thankful without being jealous of what others have”; that is all very well when it comes to suppressing your personal green-eyed monster to become a better human being but it just doesn’t work that way when competing as a nation in a world that only judges you by the strength of your currency against the euro and the dollar! 

It just doesn’t do as a nation to kill that natural zest or instinct for success that is inherent in man and we must do more, have immediate action plans in place to be counted as equals with the best of the best and who is to say that Sri Lankans don’t have what it takes to get there; all we need is the right leadership and sky is the limit! The funniest part is that the so called leaders we have are the very ones who keep preaching to us to be “content” whilst the very opposite is true in their own pursuits, fast accumulating their personal wealth at the cost of us silly tax-payers; not just for them alone, but also for their generations yet unborn! 

Individual freedom and quality of life vs. national goals

Another socio-political truth that immediately strikes you when looking at how ancient cities like Rome, Paris or London have survived obstacles like two World Wars and the present threat of terrorism, to yet retain the richness of its past whilst reaching superior heights in modern development is to view the freedom and lifestyle of the individual resident of such a city. 

The system is capable of cushioning the effects of even severe economic downfall and negative growth like the recent recessions in Europe or the present scourge of terrorism; the resident is yet assured some basic standard of life and personal freedom to enjoy that which he/she is used to. The underground trains will not stop running nor will hospitals stop treating nor the theatre at the West-End stop performing just because the country is going through a bad patch. Life goes on for those people at the same quality and expectancy, subject of course to some relatively insignificant restrictions that may be necessitated. 

The point I am trying to make is that the whole nation is not asked to ration their food and feed the infants only twice a day, go through power cuts and curtail industry, patients in hospitals asked to go out and test their own urine and blood samples or parents asked to pay for the desk and chair for their child to enter school. At one time we were crossing the Channel in the Euro Rail, travelling some 150 feet under the sea bed at a maximum speed of 293KM/PH and my mind immediately ran to the regular scenes at our Fort or Maradana railway stations during a busy day; the pictures of our youth hanging on to dear life and limb on the door or some of them actually spread out on the roof of the train was way too much of a comparison! 

If this is the quality of life we as a people deserve after almost 70 years as an independent nation, then why do we need governments and spend so much time and energy on elections? We may as well keep our sovereignty intact but contract out the everyday management of our resources, for a payment to some of these chaps with a proven track-record, pay them a commission (thus reduce all the wastage in jumbo sized Cabinets, etc.) and see if we can get a better deal that way. I know it sounds radical but you tell me the alternative. 

Constitutions vs. Constitutionalism

Fortunately (or unfortunately) having been away since the first week of December, I was insulated from all these discussions that appear to be the latest media headline. It was only thanks to a friend and parliamentarian who rang me to pick my brain on these matters that I was alerted to these issues and having made some preliminary inquiries I am made to understand as follows: 

nThat the entire Parliament is to function as a Constituent Assembly and/or a very large (number unknown) Select Committee to draft us a new Constitution 

nThen subject to Parliamentary assent (which will possibly be mustered with the present “unity government” scenario) a draft will be approved 

nThereafter we the People are to be asked to approve a new Constitution at a referendum, propounded by these constitutional experts who make up our present Parliament 

Now I can certainly understand the need for this. If you had been following the press last year I wrote extensively on what I termed “Geneva-Phobia” and explained how under our present constitution there were difficulties to cater to the demands of that Resolution; all about foreign judges and hybrid courts, etc. This fact was reiterated when we argued the 19th Amendment before their Lordships of the Supreme Court last year, where in their determination sent to the Speaker the Court was adamant that several provisions that sought to change the nature of the operation of sovereign power in Article 4 (at the time it was intended to give the Prime Minister extensive powers over the Cabinet, etc. – as opposed to the Executive President) could not be allowed – this is Constitutionalism; that the supreme law prevails over the government and institutions it has created; not the other way around; the creature does not rule the creator! The question is therefore whether we go throwing away Constitutions on each occasion it doesn’t suit our way of trying to run a government. 

A taste of paradise – is this what 2016 is to become?

On 8 January last year the Sri Lankan citizen raised a majority voice across the country, against what was seen as an indefatigable force of abuse, corruption, tyranny and autocracy to declare loud and clear that we were reclaiming our sovereign right to govern ourselves; which Article 3 reposes in us absolutely, inalienably and forever and that is the source of all power. As someone who at least played some small part in rallying those forces I am concerned as to what is to become of that people’s power. We have in the present Constitution that we have made for ourselves (1978) given a limited mandate, in Public Trust that it will not be breached to three institutions to govern us; Article 4 (a) Legislature or Parliament (b) Executive including the President, Prime Minister and Cabinet and (c) Judiciary. 

In the light of what is obviously proposed that are to be discussed on the 9th (I am reliably made to understand) several questions arise, which I shall deal with briefly in this new year article, leaving further and more elaborate discussion to follow over the year; as undoubtedly it will: 

a).Pray tell us, who gave this present Parliament a mandate to do away with our existing Constitution – I am not for a moment opposing any valid amendments that are deemed to be needed to the existing one, which can be done according to law, but to do away with it altogether? 

b).At the election of 17 August there were several political parties offering several manifestos, some of them with a marginal majority have decided to align themselves with the party coming in second and form a what is called “a government of unity” (leaving some from the same party calling themselves a “joint opposition”) – this alone raises several questions as to a possible breach of mandate, whether this was clearly declared to the People by either side before they asked them for their sovereign vote? 

c).Now a more important question has arisen, that is when did the People who voted for these different political parties (because there must be an expression of sovereign will) mandate these 225 persons to become a “Constituent Assembly” and throw away the Supreme Law by which they were elected and instituted in office – Parliament is not supreme over the law of the land and cannot do away with the supreme law of the land as and when it sees fit, several determinations have clearly stated so and it would be repugnant to a State subject to the Rule of Law to even contemplate such; 

d).A contrast may be drawn in history to our first Republican Constitution (of 1972) - where prior to the election PM Bandaranaike and Minister Dr. Colvin R. De Silva clearly sought a mandate from the People to abolish our colonial Constitutions, as an expression of that independence upon being elected, convened as a Constituent Assembly at Nawa Ranga Hala and then only did we become a Republic with such a new Constitution. 

It is then my fellow Sri Lankan that we became a Republic, a nation where the power is held by the People and who are second to no other; the Parliament, the Executive and the Judiciary are all creatures that we, the supreme sovereign holders of this power have created vis-à-vis our Constitution; and if such Rule of Law is to prevail then we must ensure that we are so governed, anything beyond or above it will be clearly unlawful irrespective of which pundit or maha rajah says so! 

Thus as I offer you our customary salutations and offer our heartfelt wishes for a peaceful, successful and prosperous New Year; I am almost certain that we are all going to be engaged fully throughout this year with several such discussions of Constitutions over the months to come. 

Power to the people! Subha Aluth Avuruddak Weva!