19 October 2017

Attorney General in the dock

Another AG carving a career path?

Those supporters of the Yahapalana Regime whose apologies have diminished to the point they take refuge in what I call the ‘At Least Thesis’ in the now tired game of comparison, have rightfully found some fuel in the recent assertiveness of the Attorney General’s Department.  The reference is of course to the uncompromising positions taken by Additional Solicitor General Dappula De Livera and Deputy Solicitor General Milinda Gunathilaka in questioning witnesses before the Presidential Commission of Inquiry (PCoI) into the Central Bank bond issue scam.

What’s missing in the adoration is something, anything, on the highly irregular operations of the Attorney General himself.  So when it comes down to it, the obvious courage, conviction and argumentative skill of subordinates have been deployed selectively, i.e. to attack a man who has by his own actions and words implicated himself.  That’s Ravi Karunanayake.

The Attorney General, Jayantha Jayasuriya, stands accused of not just being negligent of responsibilities with respect to protecting the sovereign rights of the citizen but aiding and abetting an executive and legislative move to rob those very rights.  

The issue at hand is the Provincial Councils Elections (Amendment) Bill, where Parliament enacted a law using an observation issued to the Speaker by the Attorney General.  

The Bill, as has been argued both in petitions challenging its constitutionality and in newspaper comment, sought to bypass a ruling of the Supreme Court and moreover violated established Parliamentary Procedure that clearly violated provisions to safeguard the people’s sovereignty.  The text that was voted on was smuggled in at the 3rd reading and contains provisions that were not in the original bill.  Moreover the smuggled version was not on the Order Paper and was not submitted to an Standing Committee or a Committee convened by the Speaker.  

What is appalling about the entire affair is the opinion expressed by the Attorney General.  To support what has to be considered the will of the Government that sought to pass the bill in the first place, Jayasuriya has quoted Erskine May, the well-known authority on parliamentary practice.  He claims that Erskine May had stated on page 547 of the 24th edition of his oft-quoted book ‘Parliamentary Practice’ “as in other matters of order, the admissibility of an amendment can ultimately be decided only by the House itself, there being no authority which can in advance rule an amendment out of order.”

The statement has at least a couple of riders.  The first is ‘ultimately’ which implies that decision has to be preceded by deliberations which may include opinions from outside the House.  The very fact that Jayasuriya was called upon to comment supports this thesis (as per functions detailed in Article 77 of the Constitution).  The last part itself is open to multiple interpretation, i.e. the caveat regarding advance ruling.  The ‘authority’ that can submit such a ruling is the Constitution and safeguards therein. 

The submission of former Chief Justice Sarath N Silva to the Supreme Court on this matter reveals two important facts.  First, the quote used by Jayasuriya is NOT ON THE QUOTED PAGE.  Second, as pointed out by Silva, Jayasuriya has (deliberately?) omitted the relevant caveats that May himself has couched the quoted statement in.  

In particular Jayasuriya has ignored the condition that amendments bought at any stage of the process should be within the framework of the original text and be relevant to the objectives therein.  The original bill was about women’s representation but the amendments brought in late were irrelevant to this.  It is strange indeed that Jayasuriya seems to have missed this.

Since he has quoted an authority, let us submit a rider imposed by another.  Sir George John Bourinot, following May, opines that ‘The law on the relevancy of amendments seems now to be that if they are on the same subject-matter with the original motion, they are admissible, but not when foreign thereto.’   

As such, either the Attorney General is ignorant or mischievous, the evidence pointing to the latter rather than the former.  At the end of the day the Speaker has been misled. 

The matter is in court.  We can say ‘let the court decide,’ but let us interject a few observations about law-making in this country, in particular the strange behavior of those who held the office of Attorney General and Chief Justice.

Although it is common for lawyers to obtain from British parliamentary traditions and British legal system in general, there has been a scandalous reluctance to note the difference between Britain and Sri Lanka with respect to the separation of the Attorney General’s Department from the Courts.  In Sri Lanka, unlike in Britain, senior members of the AG’s Department are ‘positioned’ in the courts, especially the Supreme Court.  Not surprisingly, those positioned thus are elevated to the post of Chief Justice.  There have been cases where lawyers are elevated to the post of Attorney General and thereafter quickly shifted to the Supreme Court and then the position of Chief Justice.  

It is a well-established career path, one might say, but one which carries the requirement of affirming (as per Article 77) proposals for constitutional tinkering submitted by the executive.  If the careers of judges in the Supreme Court are examined alongside the rulings they’ve made while in the Department and later as judges, an argument would probably arise for the separation of the two services, both which carry responsibility to the people.  

For now, this ‘history’ casts a shadow on every person appointed as Attorney General in terms of the well known dictum ‘justice should not only be done but seem to be done.’  If the case at hand raises suspicion, then among other things this history should to be blamed.  Over and above all of this, the negligence of Attorney General Jayasuriya points to scandalous deceiving of the Speaker and demonstrates an unwillingness on his part to represent and act for the people in the Republic of Sri Lanka.

Malinda Seneviratne is a freelance writer. Email: malindasenevi@gmail.com

17 October 2017

Yahapalanaya subverts judicial review

In 1988, not too long before the United National Party was to lose the five-sixths Parliamentary majority it enjoyed  (and therefore more than the two-thirds required to amend the constitution, barring of course those which required in addition a referendum) courtesy the anti-democratic referendum of 1982 which too was marred by massive fraud, J.R. Jayewardena indulged in a classic piece of constitutional skullduggery: the 14th Amendment  
In that instance, established procedure such as publishing in the gazette the draft amendment and placing it on the order paper were subverted.  The draft of the Parliamentary Select Committee was dumped in the proverbial waste paper basket.  JR sent a hand-written note to the then Chief Justice along with the version that he, JR, had drafted, requesting a comment on constitutionality.  The CJ, for his part, sent it back with an ‘ok’ when in fact he should gave tossed it out or, if he wanted to be polite, requested JR to follow the procedure. 

The then Speaker, in his wisdom, picked JR’s amendment and certified it, ignoring the Select Committee approved 14th amendment that was referred to the committee of the whole parliament that passed it.  And that’s how we got the 14th Amendment which among other things allowed party leaders to bring through the National List those candidates rejected at the polls.  

Almost thirty years later, we have the current Speaker doing pretty much the same thing, this time with the passage of a Bill titled Provincial Council Elections Amendment Bill after the 20th amendment to the Constitution that brought in to postpone the provincial council elections was rejected by the Supreme Court.

The Provincial Council Elections Amendment Bill published in the gazette did contain no violative provisions and hence it was not challenged by the concerned citizens. But at the committee stage the Bill published in the Gazette was completely abandoned and a whole lot of amendments were brought in to the provincial council election law at the committee stage effectively postponing the provincial council elections, completely disregarding the parliamentary standing orders and the relevant provisions of the Constitution (Article 78) denying the citizens any right to challenge them.

The law enacted by the fraudulent means was challenged in the Supreme Court by former Chief Justice Sarath N Silva and by public interest lawyer and 2020 Presidential Candidate Nagananda Kodituwakku.  

The latter states “it is apparent that at the 3rd Reading, the Original Bill passed at the Second Reading has been totally disregarded with a completely new set of provisions ‘smuggled in’ at the Committee Stage. Therefore, the Bill passed at the 3rd Reading is not the Bill passed at the Second Reading as recorded in page 398 of the Parliamentary proceedings.”  He further argues that this wrongful act amounts to total disregard of the lawmaking process and negation of the Rule of law established by the Constitution and the Parliamentary Standing Orders.”

Even a cursory reading of the relevant standing orders (50-53) would indicate that the Speaker is in violation of the Constitution.  In particular, Standing Order 52 and 53 expressly state that the bill has to be submitted to a Committee either nominated by the Speaker or else is a Standing Committee.

 Interestingly, Sanjay Rajaratnam, appearing on behalf of the Attorney General, has claimed, citing Article 80 (Once the Speaker certifies a bill, the Supreme Court has no jurisdiction) and Article 124 (which speaks to limitations of the Supreme Court with respect to the validity of bills and legislative process), that the Speaker was not out of order.  

However, it is strange that the Attorney General appears to be ignorant of a case law (landmark case, ‘Land Reform Commission Vs Grand Central of 1981), as detailed in the relevant Sri Lanka Law Report p 148), which speaks to the role of the Attorney General.

“Unlike in Britain where the Queen is Sovereign, in the Republic of Sri Lanka, sovereignty is in the people in terms of Article 3 of the Constitution, and therefore the Attorney General represents and acts for the people in the Republic of Sri Lanka.”

Article 77 details the Attorney General’s responsibilities with regard to published bills.  Note, Article 77(2) : “If the Attorney-General is of the opinion that a Bill contravenes any of the requirements of paragraphs (1) and (2) of Article 82 or that any provision in a Bill cannot be validly passed except by the special majority prescribed by the Constitution, he shall communicate such opinion to the President: Provided that in the case of an amendment proposed to a Bill in Parliament, the Attorney-General shall communicate his opinion to the Speaker at the stage when the Bill is ready to be put to Parliament for its acceptance.”

But what does Article 82 (1 and 2) say?  They refer to the amendment or repeal of the Constitution and read as follows:

82. (1) No Bill for the amendment of any provision of the Constitution shall be placed on the Order Paper of Parliament, unless the provision to be repealed, altered or added, and consequential amendments, if any, are expressly specified in the Bill and is described in the long title thereof as being an Act for the amendment of the Constitution.

(2) No Bill for the repeal of the Constitution shall be placed on the Order Paper of Parliament unless the Bill contains provisions replacing the Constitution and is described in the long title thereof as being an Act for the repeal and replacement of the Constitution.

The version submitted at the 3rd Reading, as Kodituwakku points out, was not on the Order Paper.  It was incumbent on the part of the Attorney General, as per responsibilities detailed above with respect to the people, to point all this out at the relevant stage of the process.  In other words, the Attorney General could have insisted that the procedure adopted at the third reading was out of order.  Since Article 78(2) clearly states that “The passing of a Bill or a resolution by Parliament shall be in accordance with the Constitution and the Standing Orders of Parliament.”  This safeguard has been subverted in this process.   Instead, the Attorney General comes out to defend an act by the Speaker, which the Attorney General appears to have sanctioned either illegally (that is deceitfully) or through negligence.  

The Court has not ruled and let’s not be presumptuous about ruling.  However, if the Attorney General’s point stands, what it means is that a dangerous precedent has been created whereby judicial review of proposed legislation is disallowed ab initio.   

What this means is that we can have a situation where any bill that subverts the sovereignty of the people can be passed by a Parliament made quiescent by party loyalty and other constitutional devices such as the likelihood of expulsion with the obviously dire consequences, simply because the Attorney General can look the other way and the Court could be silenced by the principle of precedent.

We could have, for example, indefinite postponement of elections, we can have Parliament deciding to extend its life, and we can have Parliament deciding to elect the President. 

What then of sovereignty, one must ask.  The only option is to demand empowering the judiciary with judicial review of any legislation that is inconsistent with the rule of law and the Constitution.

Malinda Seneviratne is a freelance writer. Email: malindasenevi@gmail.com.  Twitter: malindasene

13 October 2017

My mother in the long ago...

She had been ‘Akka’ to me because everyone called her Akka (or ‘Older Sister) since she was the eldest in the family.  Her mother had been ‘Amma’ (‘Mother’) to me because that’s what everyone in the household, including her husband called her.  Later she became Ammi (‘Mother) and her mother became ‘Aththamma’ (‘Grandmother’) probably due to change of residence, the ingraining of term-propriety and growing up.

I do not recall the infancy of address-confusion, but the stories of that confusion were told and re-told with much mirth by the particular story-teller on numerous occasions over several decades that it comes close to ‘first memory’.  

Aunty Joyce’s Montessori.  I attended it when it was located on Charles Circus and then at the intersection of Charles Drive and Alfred Place.  On one occasion, on the way home, I had a fight with her.  ‘Her’ as in my mother, Indrani Seneviratne, then as now ‘Ammi’ to me.   I can’t remember what it was all about.  It happened near a house which had a hedge of ගඳපාන (Lantana Camara).  I loved that hedge.  I remember picking flowers on many occasions. Her aunt, Daisy Dondanwala, who had been married to her uncle Dr Jayampathy Yatawara and was either  divorced or separated, lived in a small flat on the opposite side of the road. For some reason, we went to visit her.  I was upset and Naya Aththamma (because she baked all kinds of things and these included strips of bread shaped like snakes with red or green eyes) as we called, her noticed.  She tried to calm me down but failed.  I left.  But in my anger, I left my school bag on the side of the road as protest.  The ‘school bag’ was a suitcase, a tiny one that had only enough room to hold a few sandwiches.  Ammi found out later and went looking for it.  It was gone.  I was upset, I remember.  She did not chide me.  I remember.  

I remember the last day at Aunty Joye’s Montessori.  She came with a camera and took pictures.  One picture with two of my teachers and one with my friends, among whom I remember Bradley Umamboowe (we called him Mahinda) and Sheran Wanigasekera, who lived next door.  She wanted me to have memories, I realize now.

I remember mornings in the early years at Royal Junior School.  She had all the clothes washed, ironed and neatly arranged on the bed.  The shoes were always polished. She washed her three children and dressed us up.  She took us to school and then took the 109 to Wattala (she taught at Wattala Convent before getting a transfer to Royal College in 1971, after my brother and I had been enrolled at Royal Junior School.  

She carried me.  When I was almost eight and had a few bones broken in my right foot, she carried me to the hospital.  A year later when I was down with Hepatitis, she carried me for blood tests and to see Dr. Dharmawansa at Durdans Hospital.  She put me down outside his consultation room and went to the Record Room to collect the family card, B 32.  She carried me back.  She carried me throughout her life.  She carried many people.  She carried every single person who came to her for help or who she felt needed her help.  

She complained in later years, when I was at Royal College, that it was embarrassing to go to the staff room because teachers would complain about me.  I was glad she was there.  She forgot on certain occasions that I was a student as well her her son.  When I was a prefect she once blasted me in front of a bunch of younger students.  I remember telling her that I think it was wrong of her to do so because I had a role in disciplining errant students and that she had compromised my ability to do so.  I remember calling her ‘madam’ on that occasion.  She just said ‘I am sorry.’  I am sorry too, now.

She confused son and student or maybe she did not, for all her students at Royal were ‘sons’ to her.  They would agree.  She was after all ‘The Grand Old Lady of Royal College’ as her student and my batchmate Mohammed Adamally said at her funeral. 

She was there for me. Quietly.  She rejoiced in the various triumphs of her children but didn’t always show it.  Such sentiments she apparently shared with her favorite student, Arjuna Parakrama.  That’s what he said at her funeral.  

She was there for me even when I was a rascal.  I remember deciding I had had enough of Mrs Lakshmi Jeganathan’s Speech and Drama Class. This was when I was in Grade 10.  Aunty Lakshmi was one of the biggest influences in my life, but she was a tough teacher and I couldn’t take that toughness.  I didn’t have the courage to tell Ammi.  So on Saturdays I would leave the house pretending to be going for her class but in reality going over to my aunt’s house and staying there until it was time to come home (after the class, which I didn’t attend).   Aunty Lakshmi and Ammi were great friends.  Looking back I am sure there would have been a telephone conversation about my absence.  Looking back, Ammi would have made some excuse.  She never asked me though.  Maybe she didn’t want to embarrass me.  She was like that.  Quiet in certain ways, even though she could be loud and unforgiving in others.

She feared for her children.  She gave us all the freedom we needed and did her best to protect us from all the storms we invited into our lives.  In February 1992, when I was arrested and held at the Wadduwa Police Station, she would visit with food and smiles.  She gave a thumbs up sign to all my political associates arrested with me.  One night, months later, when I observed there was too many dishes to go with the rice, my father said ‘You wouldn’t say that if you knew that during the three weeks you were in jail we didn’t cook food in this house — Ammi came home from Wadduwa one day and just fell on the floor and wept.’  I remember now.  And it makes me cry.

In later years, she and I didn’t get along too well.  She was stubborn and so was I.  She had taught me (as she had taught her students) to stand up for what I believed.  During one argument she said ‘Malinda, never ever have you taken my side!’  I responded, I remember, ‘I’ve always taken the side I believed was right.’  She didn’t say anything, but later she had told my wife Samadanie, ‘whatever said and done, Malinda stands for what he believes.’  She was proud, I feel, but didn’t show it much.  

She was hard on herself and soft on others.  She collected things.  My sister was amazed to find that Ammi had saved every little piece of paper she had come across where she, Nangi, had written something. She had all our various certificates in separate files.  She had kept my prefect’s badge safe.  She took the petals of a bouquet of roses that were given to me upon graduation from Harvard University, dried them, and made a beautiful heart out of them.  She did things like that.  Things of the heart.  For all her sons.  And all her daughters.  

It’s eight years since she passed away at the Jayawardenapura Hospital.  I remember that evening.  Her friend and former colleague at Ladies’ College, Chula, called me and said that Ammi had collapsed in her car.  They were going to her place in Thalawatugoda.  I later learned that a few moments before that she was on Chula’s phone talking to someone and trying to sort out a problem.  I told Chula to take her to hospital and rushed there.

She was on a bed.  I touched her forehead and arranged her hair.  She looked at me.  Then she closed her eyes.  She never opened them again.  

It’s quiet here.  Sooriya Village.  It’s late evening.  Eight years ago, around this time, I had my last conversation with her.  I don’t know what I said and I don’t know what she said.  We talked with gaze.  I saw the eyes that had watched over me and looked through me.  

A year after she passed away, on the way back from Kataragama, my older daughter threw a tantrum.  She was seven then.  She was impossible.  In desperation, I stopped the vehicle and told her, ‘either you stop this or else you drive!’  She went quiet.  Then she said ‘I want my Aththammi.’  I cried then.  And I cry now.  

She's taller now:
too tall to hold
to cuddle too old; 
queen you were
and she princess
then as now, 
and you
are as you were
in your distance and proximity
words and words not said;
your children, all of them,
are safe
in a cradling that endures
the mortality of passing.

*On behalf of all her children

06 October 2017

John Hector Dhanapala was a man of gentle ways

John Hector Dhanapala never taught me.  I knew him first as the father of my classmate and best friend, Rajitha.  I knew him also as the brother of a far more commanding teacher, Donald Dhanapala, who taught at Royal Junior School.  

Mr Dhanapala never taught me, but for what must have been a year but felt like several years, I saw him almost everyday, Monday through Friday.  This is how it happened.

Back then while Royal Junior School finished at 1.30 pm, Royal College went on until 3 or 3.30 pm.   We lived down Pedris Road in a tiny, one-bedroom flat which was rented out just so the two-mile radius criteria would be fulfilled when admission was sought for my older brother Arjuna and I.  This, although our father was an Old Boy of the school.  

My brother and I walked home after school.  By 1.40 we would be having lunch.  Rajitha, on the other hand, would trudge to Royal College and stay in the staff room until his father finished his work. 

Somewhere in the year 1973 when Rajitha and I were in Mrs C Liyanagama’s class (3A).  My mother, who also taught at Royal College, apparently, had noticed this eight year old boy sitting in a chair that probably could have held three boys his size.  She had noticed him nodding off to sleep day after day.  She must have inquired or may have figured out that Rajitha’s father was John Hector Dhanapala, a fellow member of the tutorial staff.  

My mother had many sons (and quite a few daughters too) during her long tenure as a teacher.  Knowing her, she would have seen in Rajitha either myself or my brother. Anyway, she had suggested to Mr Dhanapala that Rajitha could stay at our place, have lunch and wait until his father could pick him up.  I don’t know if she knew at that point that Rajitha and I were classmates.  

Anyway, one fine day, Rajitha and I came home together, accompanied of course by our brother.  Those were good days.  Lunch was followed by cricket.  We played for what seemed (and is still remembered) like many hours, but of course it couldn’t have been more than an hour and a half at most.  Mr Dhanapala would come to pick up his son. 

He was quiet.  He hardly spoke.  Probably nothing more than a greeting.  I can’t remember too much of that time anyway, but I do remember him being quiet.  

He was quiet in later years when we moved to Pamankada and I would go over to ‘College’ to go home with my mother.  If I remember right, this was in 1975 or 1976, when school finished at 1.oo pm for us and we had half an hour to kill.  My brother and I would walk to College along with the children of other teachers.  There was Mrs Weerasiri’s sons, Aruna and Kalana, Mr Weerasinghe’s (BAWA’s) son, Dulcie Wijesinha’s son Saman and I think Mrs Jayatilleka’s younger son (who tragically committed suicide a few years later over a stupid rebuke).  We walked up Racecourse Avenue (now, Rajakeeya Mawatha) and jump over the wall (The Vice Principal, Christie ‘Kataya’ Gunasekara, Mr Nanayakkara (Bus Nana) and I think Mr Wariyapola caught us on one occasion, but that’s another story).  There was enough time for a quick game of cricket in the corridor between the science lab and where the tennis courts now are.  There were times I would stray into the staff room.  That’s when I would on occasion meet Mr Dhanapala.

He didn’t speak much.  He smiled.  

He was quiet in 1977 when Rajitha and I (along with Ruvinda Gunawardena) crossed over to Royal College (as permitted by a special provision for teachers’ children).  The three of us were enrolled on the same day and in the same class (Mr Sawaad’s class, 7F).  Ruwinda’s mother (whose name I cannot remember) was a tall lady.  Her presence was felt.  Mr Dhanapala, quiet and self-effacing, was less conspicuous.  

Thereafter, until he retired in 1980, there were many times when I ran into him.  I would politely say ‘Good morning, Sir’ and he would softly return the greeting. 

I never had a conversation with Mr Dhanapala that I can remember.  But I remember him as a decent and refined personality.  He never taught me, but Rajitha says he taught Christianity and Economics (English Medium).  I don’t know if he was strict in class, but I do know he was a good teacher.   After leaving Royal in 1980 he took up a teaching post in Pakistan.  He taught there for more than 25 years.  Rajitha says that his father had once ‘retired’ and had spent 4-5 years back in Sri Lanka, but his employers had convinced him to return.  He must have been a very special teacher.  

A few years after we left school I ran into Rajitha at the Big Match.  I told him that he (Rajitha) was looking more and more like his father: “උඹ උඹේ තාත්ත වගේ වේගෙන එනවා.”  Rajitha responded immediately, “උඹ උඹේ අම්ම වගේ වේගෙන එනවා!”  We both laughed.  We were like that, brothers from different mothers and fathers.  

I met Mr Dhanapala on two occasions after he left Royal.  The first was at the Mercantile Cricket Association grounds in 2012.  He had come to watch his grandson, Thiran, play in an Under 15 match.  I had gone to meet the father of a boy playing in the opposing team.  I saw Rajitha and he said that Mr Dhanapala was also there.  He was eminently recognizable, despite the years.  The smile, that’s it.  And the kindness of gaze.  And when he spoke, he took me back to 1973, a different century and almost a different lifetime.  He spoke softly.  He spoke little.  He said a lot.  He spoke about his time in Pakistan.  He spoke about Thiran, with measured pride.  Looking back, he seemed to have resolved to treat the vicissitudes of life with equanimity.  Always calm, seldom agitated: that’s how I pictured him in the everyday of his life that I had not witnessed.

I saw him last at the Royal-Thomian.  He was in the enclosure reserved for the families of the players.  We spoke about the match.  We spoke about Thiran.  He told me that he enjoyed watching the boy play.  He was proud.  And again, it was measured pride.  Right now, as I write, I have this sense that he would have hid his disappointments (if indeed that was what he felt) way back in 1984 when his son, my friend Rajitha, was denied a place in the First XI that played in that year’s Royal-Thomian.

John Hector Dhanapala died almost two years ago, on January 2, 2016.   He did not get to see his grandson and his teammates complete an improbable, come-from-behind win over St. Thomas'.  That would not be something he would have dwelt on.  He wasn't a man who appeared to have any regrets.   He was 83 years old.  Perhaps one day, those who were privileged to have been taught by him, will write the stories of his teaching.  I saw him from a distance.  A quiet, soft-spoken gentleman who clearly tread so soft on this earth that the marks he left are untraceable.  He scripted, most probably, in texts that are not easy to transliterate.  He did not burden the earth, he enriched it, I am now certain.

May he rest in pace.

05 October 2017

The Malwatte Mahanayaka Thero's 'Trust Sutra'

The Mahanayaka of the Malwatte Chapter, the Most Venerable Tibbotuwawe Sri Siddhartha Sumangala Thera has made an interesting pronouncement.  Referring to the fact that President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe had said the proposed new Constitution would safeguard the country’s unitary status and the pre-eminent place afforded to Buddhism, the prelate states, “When the two leaders ruling the country have given such an assurance there is no point in questioning about its validity.” 

Let us state at the outset, that the issue of whether or not devolution or the dismantling of the unitary character of the state is prudent is of secondary importance to this article.  The focus is believability; it is about trust and therefore a trust-deficit and consequently the attempt to hoodwink the general public.  

It appears that the learned Mahanayaka Thero has for a moment forgotten the basic tenets of the Buddha’s Charter on Free Inquiry, the Kalama Sutta.  This is what the Buddha proposed to the Kalamas: 

"Come, Kalamas. Do not go upon what has been acquired by repeated hearing; nor upon tradition; nor upon rumor; nor upon what is in a scripture; nor upon surmise; nor upon an axiom; nor upon specious reasoning; nor upon a bias towards a notion that has been pondered over; nor upon another's seeming ability; nor upon the consideration, 'The monk is our teacher.' Kalamas, when you yourselves know: 'These things are good; these things are not blamable; these things are praised by the wise; undertaken and observed, these things lead to benefit and happiness,' enter on and abide in them.”

In this instance the Mahanayaka Thero has erred on the side of trust.  We shall return to this matter later.  For now, let us consider the constitutional changes sought by the Yahapalana Government and the manner in which it has proceeded.  

Let’s begin with the proposals for constitutional reform.  What we have today is not a draft amendment but a concept, sorry, 9 concepts — the report of the Steering Committee of the Constitutional Assembly and the 8 observations by political parties.  The United National Party, by default has agreed with the report while others have, in their submissions, expressed disagreement on various sections of the report.  The JVP, for reasons best known to it, has submitted a two-page set of observations which seems light considering the weight of changes envisaged in the report.  The Sri Lanka Freedom Party, the Joint Opposition and the Jathika Hela Urumaya have been strong in their objections. In other words, it is not a ‘done deal,’ yet.

The regime is navel-gazing on the matter of coming up with a solid document that incorporates all observations or else goes ahead with what should be called the UNP Proposal.  As such it only feeds suspicion and rumor-mongers.  It could do better, but then again, yahapalana-incompetence seems to be a shackle that is hard to shed.

Let’s consider the UNP Proposal.  With respect to the issues of Buddhism and the unitary status, as has been pointed out, if these matters are to be ‘untouched’ as the President and Prime Minister appear to have impressed on the venerable prelate, then no alteration in the current wording is warranted.  Moreover, the ‘status quo’ should not be touched through caveats on any relevant matter including power-devolution.  

With respect to the status of Buddhism, the so-called privileges supposedly entrenched in Article 9 are negated in effect by Articles 10 and 14(1)(e).  A reformulation offered as an option by the Steering Committee of the Constitutional Assembly reads as follows: "Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Article 10 and 14(1)(e).”  A wordy re-statement essentially.  In essence the arbitrary deletion in word and deed of the relevant clause of the Kandyan Convention remains, despite all the rhetoric of this being a country where there is a ‘Buddhist hegemony.’  At least, in this case, there’s no deception.  It’s in the machinations involving the nature of the state where we see the Yahapalana Regime trying to pull wool over the eyes of the majority community.

A nation is ‘unitary’ or ‘federal’ or ‘a confederacy’ not on the label used but on the simple fact (or otherwise) of where legislative power resides.  In Sri Lanka’s case, it is Articles 4(a) and 76(1) which give the state a unitary character.  It is these very articles that the Yahapalana Government is set to butcher.  The moment legislative power of any kind is devolved to the provincial councils, for example, the state ceases to be unitary in character, in procedure and in effect. 

One must hope that the Most Venerable Tibbotuwawe Sri Siddhartha Sumangala Thera would at least in future read such drafts with perhaps the assistance of relevant experts before offering blank cheques to the regime.  With respect to the Charter of Free Inquiry alluded to above, perhaps the Thero focused on the clause ‘these things are praised by the wise.’  As of now the only persons praised are the President and the Prime Minister.  

Does the Venerable Thero believe that presidents and prime ministers are trustworthy on account of the offices they hold?  Has the Venerable Thero considered the track record of all the presidents and prime ministers since Independence?  Were they democrats?  Did they not abuse power?  Were they not guilty of constitutional hanky-panky?  J.R. Jayewardene was the Grandmaster of constitutional hanky-panky.  Ranasinghe Premadasa and D.B. Wijethunga didn't (have to) engage in constitutional tinkering, Chandrika Kumaratunga tried and failed, and Mahinda Rajapaksa came up with the patently anti-democratic and self-serving 18th Amendment.  As for the prime ministers, most of them placed high value on political expediency.  Ranil Wickremesinghe is included in the sorry-column in this regard considering his role in the passage of the 13th Amendment and machinations during his tenure from 2001-2004.

As for the two individuals referenced, are they wise? Are they honest?  Are they trustworthy?  The President’s wisdom can be gauged by the nepotism, incompetence, abuse of resources and political chicanery he has excelled in.  As for the Prime Minister, the appointment and defense of Arjuna Mahendran says all that needs to be said about his wisdom.   Moreover, this regime has established beyond any shadow of doubt that the will of the people is not its concern.  The continued postponement of elections with vague reasons offered for the same prove that the regime either does not give a hoot for the opinions of the voters or is reluctant to go before them for endorsement fearing summary dismissal.  

The Most Venerable Tibbotuwawe Sri Siddhartha Sumangala Thera’s trust, therefore, is patently misplaced.  Unfortunately.  Until such time that the President and Prime Minister back their claims regarding the ‘unitary status’ with a clear affirmation of the same by rejecting proposals to devolve legislative power, it is only prudent to treat flippant assurances as they should be, i.e. with more than a pinch of salt.  

If on the other hand, the regime comes clean and the President and Prime Minister clearly states ‘our intention is dismantle the unitary state in favor of a federal or confederal arrangement or even a division of the country,’ then the good Thero can legitimately place his trust on them and then, if he so chooses, in the Thero’s wisdon, support their proposals.  The Thero also has the option of rejecting them because the Thero wants clauses relating to Buddhism and the nature of the state left intact. 

As things stand, however, the trust-deficit with respect to the regime in general and the President and Prime Minister in particular, is overwhelming.  The wisdom, consequently, of the Most Venerable Tibbotuwawe Sri Siddhartha Sumangala Thera, needs to be questioned, we offer most respectfully.

Email: malindasene@gmail.com.  Twitter: malindasene.

28 September 2017

The politics of courtesy, respect and submission

Sinharatne Bandara (far right) is the kind of public servant this country needs

It is no secret that among the least respect people in Sri Lanka are politicians and police officers.  Other state employees, barring perhaps the security forces, are not respected much either.  Corporate entities on the other hand, among whom are the biggest crooks, embezzlers and wheeler-dealers, appear to be a rarified lot, perhaps because of the way they are cocooned and remain distanced from the public eye.  

What’s strange about this lack of respect is that it is a mind-thing.  When encountering arrogance, ignorance, sloth, incompetence and requests for bribes, the citizen rarely objects.  There is then a culture of resignation and consequently submission.  It is a culture that entrenches wrongdoing, emboldens the wrongdoer.  The hassle of it all and of course the low returns or even overall losses on investment probably contribute to the silence and inaction.  We suffer through it and we go home and bitch about it.  That’s about it. 

Then again, there are exceptions.  There are people who stand up, people who say ‘no’ or ‘no way!’  Consider the following story of a man called M.W.S. Bandara who worked at the Provincial Road Development Authority, North Central Province, posted in social media by his son Pandula Nayana Bandara.  The original was in Sinhala and was titled ‘බෑ ඩෝ’ which could be translated as ‘No can do!’ or ‘Forget it!’ (if one were polite) or ‘Buzz off buster’ or worse!  

M.W.S. Bandara worked at the Provincial Road Development Authority, North Central Province. He was the former General Manager. 1998. A provincial council minister had asked him to give a contract to a henchman. ‘No can do’ he said. His car was smashed up.

2001. The same minister pressurized him to approve tenders submitted by his henchman. ‘No can do’ he said. He was fired. He was vilified as a thief. He went to court. He was reinstated 11 years later along with compensation in 2012.

2012. Pressure was brought on him to sign a document approving a forged bill for Rs 1.4 billion. There were daily calls. A lot of pressure. Threats. ‘No can do,’ he said. A druggie of the area was employed to throw dirt in his face.

2015. Once again pressure was applied to sign documents for this same forged bill stating an amount of Rs 1.4 billion. He explained why it was not possible to pay the amount. He made sure that even a successor would not be able to approve this. He was made to retire at 57 although he was entitled to stay on until 60. He filed a case and it is still being heard. He will win it along with compensation.

This is how you say ‘no can do’ to politicians who want you to bend or break the rules. All you need is a backbone.

Yes, yes, I’m saying all this for the information of the dude who is acting like Veerappan these days.

That’s ma DAD!

This post was obviously promoted by the sil redi case where two high ranking officials were found guilty of violating established procedure, abuse of authority and irresponsible behavior in the management of public funds, among other things.  The example demonstrates that being firm, honest, disciplined and responsible could involve high personal cost.  Clearly it indicates that the overall institutional structure and the rules pertaining to them are too weak to protect honest public servants.  Consequently they empower the crooked politician and disempower the people.  

Clearly the citizens are also complicit in all this, as mentioned above.  Perhaps, for this reason, it is also incumbent on the citizen to reflect on citizenship, the rights therein and the related responsibilities even as collective action is plotted to enact more robust laws and put in place mechanisms that inhibit those inclined to abuse a flawed system.  In other words, just as we need more people like Mr. Bandara in the public service, we also need more citizens like him who in their everyday object to the objectionable even as they are grateful for the professionalism and courage of the Bandaras of this country.  

Here’s an example.  

On the 31st of August a convoy of vehicles, accompanying a VIP obviously, was causing a lot of unease on the Colombo-Kandy road.  There had been six vehicles including an ambulance, a back-up vehicles and several Defenders which were probably part of the security detail for the particular VIP.  Now there are no laws to state that ordinary traffic should make way for any VIP.  There’s courtesy at times and there’s submission to directives of the Traffic Police at other times.  We should mention that such ‘movements’ and the inconvenience caused to the general public were strongly objected to by those who promised to do away with all that on January 8, 2015.  On this day, like other days and occasions, the ordinary citizenry made way for the arrogant politician.  All, except one.  He did not budge. 

Finally, close to the restaurant called ‘Avanhala’ in Warakapola, this individual thought ‘enough is enough’.  Mahesha Thirimanne stopped his vehicle in the middle of the road, got out and spoke his mind.  What he told those in the back up vehicles in Sinhala can be translated thus:

“You have no legal right to inconvenience me or anyone else in this way.  Remember that if your boss and others like him had actually done their job over the past 70 years neither you nor I would have had to deal with a traffic problem.  All you can do is shoot me, but remember that it’s the taxpayers’ money that went to purchase your vehicle, we pay for the fuel, we pay your salaries, we pay for your uniforms, even your gun and the bullets are purchased by our money.”

Perhaps the recipients of this tirade were too shocked to respond. Perhaps as of now (but perhaps not so in time to come) their bosses and the government are too weak and/or unstable for arrogance to have rubbed off on them.  Anyway, they were silent.  No, they were silenced.  They were silenced by a citizen who knew his rights and responsibilities, and had the courage to say “no.”

I submit that in the absence of the political will (for obvious reasons of protecting self-interest), it is countless acts of courage such as these are what will create the culture necessary to obtain a change for the better.  This is not to say that courtesy is out of order or that we need to be disrespectful; by all means, but only where such is deserved.  One recalls the relevant line of the relevant stanza from the Maha Mangala Sutta:  පූජාච පූජ නීයානං — ඒතං මංගල මුත්තමං (Pūjā ca pūjanīyānam — etam mangala muttamam or “[to] honour those who are worthy of honour; this is [a] blessing supreme”) and of course the recommendation of giving those unworthy of such honour a wide berth.  

When the principle is adhered to, then, the honorable public servant and the public service are strengthened, the errant politician is made wary and there is hope for a better tomorrow for both  citizen and nation.  

The proposition is simple, really: we can either be a Bandara or a Thirimanne, or we can continue to be short-changed, insulted and humiliated by the arrogant and crooked.