When the Sri Lankan ‘speaks’

The sovereign Sri Lankan Citizen

Promptly laying to rest recent comments (even criticisms) for my relative silence for a while, and pleading only hectic professional commitments (and nothing else as had been rumoured) as my defence; I must quote Orwell and begin by saying that “in times of universal deceit, telling the truth becomes a revolutionary act” in itself.

Some recent events beg the question in persons of equal mindset that see these things “scientifically,” whether the people of this Republic have finally realised that sovereign power of this nation-state is reposed in them and no other!

Article 3 of the Constitution is very clear that this is so, and it is inalienable; it is only periodically entrusted in government (Article 4) by the people to hold and exercise for and on their behalf, to their ultimate benefit!

The Supreme Court has interpreted it to be so in the matter of Senarath Vs Kumarathunge (SC FR 503/2005 at page 17) where His Lordship (the then Chief Justice) finds that “the power remains and continues to be reposed in the People who are sovereign, and its exercise by that particular organ of government (Legislative, Executive or Judiciary) being its custodian for the time being, is for the People”. The issue all this time was whether this was filtering down to the citizen.

It is very important to note that these are not some wild fantasies, but simple repetition of our Second Republican (1978) Constitution. Its preamble is very clear, that it is us the people that have enacted it, which reads: “The People of Sri Lanka … having by their mandate …empowered their representatives… do hereby adopt and enact this Constitution as the Supreme Law…” This is our Constitution

Policy making and judicial review

The Constitution (at Article 43) sets out that the Cabinet will be charged with the “direction and control of the government” and holds it “collectively responsible” to Parliament (therefore by necessary implication to the people); thus assuring this “trusteeship” of people’s sovereignty temporarily reposed in these institutions.

Chapter VI of the Constitution sets out legal parameters referred to as “the Directive Principles of State Policy” and states that it “… shall guide Parliament, the President and Cabinet…in enactment of laws…and governance of Sri Lanka (to establish) …a just and free society…”; thus it is clear then that the Executive is intended to formulate policy for us, which through the parliamentary process (responsibility to the Legislature) ultimately become laws to rule us. In the event this ‘Rule of Law’ is breached (our ‘Fundamental Rights’ infringed), the Constitution itself provides for our judicial power to take effect and review it; all of these powers yet remain with the people, though exercised through these three organs.

Now there are two recent examples, both fairly controversial and much debated, which I will use to elaborate this point. The first was the Private Sector Pension Scheme which was proposed as a new policy. I understand that some provisions were challenged as to their constitutionality in the supreme court and having passed that stage, ‘the Bill’ was then to be placed before parliament; but what happened – the people, speaking through the workers decided this was not in their best interest, rose up against it and now, at the unfortunate cost of a young lad’s life the policy has been withdrawn.

The next is the proposed Leadership and Personality Development Scheme meant to be compulsorily imposed upon prospective university entrants, carried out in military camps and such other places. Once again the subject minister presented the policy through the secretary, several voices were raised against it on grounds of arbitrariness and attempted implementation by force; some petitioned the Supreme Court against this which have since been dismissed by their lordships holding that none had made out a case for the grant of leave to proceed.

Whilst this constitutional process was in operation though, only around 80% of the invitees are reported to have participated – thus 20% students opting against what appears to be a compulsory training programme with severe consequences for non attendance; the possible denial of their degree!

Is the Sri Lankan asserting his/her sovereignty?

Recent evolution of socio political change sweeping across the globe, from a purely people-minded perspective is music to a political scientist. Asia appears to be a focal point, commencing with last year’s uprising in the ASEAN region of Bangkok. We then saw some northern African/mid-eastern Asian regions following suit, in places like Egypt, Yemen, Tunisia, Jordan; the main allegation in most places being subjected to an autocratic (almost dictatorial) regimes.

This begs questions and a comparative study; how this may affect regional and global balances of power, what shifts can be expected in ‘Western’ or now the more power centric Eastern or South Asian quarters? Has the Sri Lankan citizen started questioning governmental policy and its legitimacy, if they see it as being imposed upon them by force – are they reacting to it? What does this entail?

Our Constitution guarantees to all citizens the following fundamental rights/freedoms to do so, if they desire:

• Freedom of thought and conscience under Article 10
• Freedom from discrimination on the grounds of political opinion under Article 12(2)
• Freedom of speech and expression under Article 14(1)(a)
• Freedom of association under Article 14(1)(c)

Whilst ensuring the above freedoms to act independently and freely, the law also enforces certain limitations by its operation, on some freedoms in order to protect and preserve the status quo of the Republic. Chapter VI of the Penal Code also sets out several offences against the State, commencing from waging war (Section 114) to attempts to excite disaffection on the government (Section 120). However the explanation to the latter also provides that it would not be an offence to show that the Government has been misled or mistaken or even to excite the people and procure the alteration of any matter through lawful means.

These laws were tested in an interesting series of cases reported in the 1994 Sri Lanka Law Reports; the case of Channa Peiris (and several others) Vs the Attorney General & others. The facts (briefly) were that the Petitioners were members of one ‘Ratawesi Peramuna,’ parties to a meeting at a temple. Some Police officers who had been covertly listening and having formed the impression they were engaged in a conspiracy to overthrow the government arrested several persons. In delivering judgment the Supreme Court cited Jefferson from the American declaration of independence, excerpts of which are:

“… that all men are created equal…that they are endowed with certain unalienable Rights…to secure these rights Governments are instituted … deriving their just powers from the consent of the governed…whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it…when a long train of abuses and usurpations pursuing invariably the same object evinces a design to reduce them under absolute despotism…it is their right, their duty, to throw off such government…”

Their lordships further held as follows:

“…the ‘Ratawesi Peramuna’ was an anti-government organisation. However as a matter of law, merely vehement, caustic and unpleasantly sharp attacks on the government…are not per se unlawful…legitimate agitation cannot be assimilated with incitement to overthrow the government…the call to topple the Government…was to bring down persons in power…if (that tumble) had shocking or traumatic effects on those who might fall is of no relevance…”

There was another case, that of Ekanayake Vs SP Police, Maho & Others (reported in 2nd Vol. of Sri Lanka Law Reports of 1993), where the Petitioner was lawfully engaging in political and propaganda activities for the SLFP at the time of his arrest. In delivering judgment the Supreme Court held again, that:

“… a citizen’s right to join any political party … is a necessary concomitant of the Freedom of Association guaranteed by Article 14(1)(c)…would be meaningless unless … to participate fully in the activities of such party…”

When being enrolled, an Attorney-at-Law (as indeed several others do) swears to an oath set out in the Constitution, to: …faithfully perform the duties and discharge the functions of (the profession), in accordance with the Constitution of the Republic and the Law, and be faithful to the Republic and to the best of (our) ability, uphold and defend the Constitution …This necessarily includes the protection of rights and freedoms of its citizens. All emphasis added above are mine, and not of the original print.

Non-violence, please – my dear Sri Lankan

With that same keenness with which we follow these present eruptions, I must with equal haste throw in a word of caution to my fellow citizens who appear to be asserting their rights as citizens; protest peacefully (if you must) by all means, indeed that is your constitutional right, but take care to remain non-violent and observe the principles of peaceful civil agitation; this is of the paramount importance! This 16th Century Florentine political philosopher Machiavelli’s celebrated treatise on statecraft (The Prince) contains this yearning for his ideal ruler to rise up from amongst the rubble and restore his beloved nation to its destined serenity, at chapter xxvi:

“…many things conspire to favour a new prince…I cannot imagine ever a time more suitable than present…if the Israelites had to be enslaved in Egypt for Moses to arise as their leader…the Persians oppressed by the Medes for the greatness of Cyrus…the Athenians had to be scattered to demonstrate the excellence of Theseus…then (Italy)…had to be brought to her present extremity…to be more enslaved than the Hebrews…more oppressed than the Persians…more widely scattered than the Athenians…leaderless, lawless, crushed, despoiled, torn, overrun…had to endure every such desolation…” It was only in such absolute and irreversible hopelessness (wrote Machiavelli) that his “Prince” would rise to the challenge, and bring back the Republic they deserved!

It was not that long ago in comparatively relative history, that a lawyer called Mohandas Karmachand Gandhi led a disgruntled set of fellow countrymen to the shores of the Indian Ocean and displayed the salt lying so freely there; when policy makers were seen to be unduly harsh on their livelihoods. Indeed the force that began with that agitation, the famous salt-walk carried out peacefully but with forceful strength, character and belief in their mission led to the ultimate independence of free India! It is therefore important for us to realise that whilst legitimate agitation will (and must) always find its place in a country that purports to follow a democratic form of government and subject itself to the rule of law, it is severely damaging for those engaging in such peaceful activity, at times enduring unthinkable hardship for those very beliefs they hold, when a few misguided (or perhaps even emotionally charged) individuals resort to violence that ends up undermining the entire agitation. There is also the lurking danger of political jackals who roam these socio-economic hunting grounds, preying upon innocent unassuming game for their ultimate gain. So, my fellow citizen, let me pause with these words from the great Gandhi himself, that “a small body of determined spirits fired by an unquenchable faith in their mission can alter the course of history!”

There is also a Franciscan Benediction that goes as follows: May God bless you with anger at injustice, oppression, and exploitation of people, so that you may work for justice, freedom, and peace…and may God bless you with enough foolishness to believe that you can make a difference in this world, so that you can do what others claim cannot be done...