CONSTITUTION WITH NO DEMOCRATIC CHECKS AND BALANCES PAVE WAY FOR DICTATORSHIP
Posted on December 13th, 2015
Cecil Atukorale ( LLB, Col. Uni)
Constitution making is not all about law for it has its links with political science as well.In any Democratic society political rights and freedom ought to express the idea that state sovereignty belongs to the people who are the source of all authority of the State. The idea of sovereignty of the people has existed for a long time. It embodies humanitarian desire for a just political system ensuring development of all members of society and excluding the abuse of power by those who have access to it as a result of their economic and social status. Now there is a move afoot now to abolish the present Executive Presidency with a Parliamentary Executive.
Constitutionally we all stand for a new constitituition framed with the approval of the people that will give full effect to the people’s sovereignty in the best and true sense of that term with unitary character of the state being preserved. Here, the Crux of the matter is this; nowhere the people have been told as to what the model of this parliamentary Executive be like. Anyway this phrase parliamentary sovereignty is no synonym for people’s sovereignty. This phrase parliamentary sovereignty is phrase full of ambiguity and it calls for a clear and proper interpretation. If not we would be in a helpless position later to object and take up a strong attitude on a mere question of interpretation. It is now or never? Where the parliamentary sovereignty prevails, the will of the people have no role to play.
Today, various blatantly undemocratic theories justifying the estrangement of Parliament from the people are in wide use. The trouble with our politicians is that they with, its colonial mentality, have not yet been able to break away from the traditional pattern of British West-Minister parliamentary politics. And, there still remains in our midst a coterie of politicians who prefer British Westminster model parliament to any other progressive model. They seem to believe Westminster Model; in all respect is the most satisfactory form of parliament suited to our country. Even the cabinet subcommittee has not yet been able to make any clarification of facts, despite its political significance. In Britain, parliament is sovereign in the sense that once elected it is not subordinate to anybody or organ until the expiry of its five year period. British ruling circles believe that for democracy to exist the government of the People is necessary, Government for the people is possible, but the Government by the People is a patent impossibility. Thus, under the British concept of Parliamentary sovereignty, there is no role for the will of the people to play. There parliamentary sovereignty is democratic in theory and dictatorial in practise.
It is fallacious to treat the parliamentary sovereignty as an equivalent to people’s sovereignty. There parliamentary sovereignty is a phrase that conveys limitation. People are kept away from the participation of the political decision making and in the governing of the state and society. Therefore for the sake of ‘efficiency’ voters are recommended not to interfere in the activity of members of parliament and only to evaluate at a subsequent election either by re-electing the Member of Parliament or turning down his candidature. On the whole the theory and practise of parliamentary sovereignty ascribes the people the passive role of outside observer or mere onlooker. Montesquieu (French Political writer) once said the English people were free only at election time; at all other times, he said, the Government was their master.
It is not for nothing that Montesquieu made that foregoing remark. Judges in Britain, unlike in the USA cannot entertain any question as to the competence of Legislature to enact a given law. Supposing Parliament passes a Law Englishmen may be imprisoned without trial, Judge may dislike it and even consider it as being against the spirit of the Constitution, but has no right to question the validity or declare it inconsistent or unconstitutional. On the other hand Legislature can by an amendment of the law virtually override the decision of the court. From 1948 up until 1977 Sri Lanka was governed by a Parliamentary Executive based on the English Westminster model. In the late 1970’s this was what the late Mr.J.R.Jayawardena had to say referring to the power of that parliament; Our Parliament could do anything except making a man a woman and a woman a man. By a resolution passed in parliament itself in 197 Mrs. Sirimavo Bandaranayake was able to extend the duration of parliament by another 2 years with no mandate from the people. Similarly by a resolution passed in parliament late Mr. J.R. Jayawardena was able to implant in our midst the present Executive Presidency by crushing all opposition views. What were all these acts if not usurpation of power?
Here, what is most important is that we must return, so to speak to the main stream of democratic politics and realise that the shortcut we tried in the past to build a “Dharmishta society “only led into a blind alley. Under this sovereign parliament the will of the people was suppressed. Both in the present constitution (1978) as well as in the previous constitution (1972) we found these words written; Sovereignty is in the people; it is inalienable. Nevertheless, it was never a reality in our politics. Here usurpation of power is rather the rule than the exception. Our ruling elements are least of all concerned about its real content and used it as a fiction, a screen to hide its political intrigue and ideological deception of the masses. In the absence of Direct Democratic checks like popular initiative & Recall the ruling elements have been able to usurp the power with no mandate from the people. It all happened under a sovereign parliament.
Under the sovereignty of parliament what will the ‘Will of the People’ be like? In the first place what does it directly determine? Apart from the exceptional use of the Referendum people act through representatives? At once their choice is limited. They normally choose between candidates whom they do not nominate; the great endeavour is not to elicit public opinion but to make it, to control it to use it. The will of the people is directed to objects which are seen through high colours of interest which may not be their own. And democracy demand far more than Universal franchise. Abraham Lincoln a past president of the USA defined Democracy in in his famous Gettysburg Speech in following terms. ‘Democracy is government by the people, of the people and for the people.’
US constitution’s greatness lies in its socio-political thoughts. It is set forth in a language intelligible to the citizen. This is what it says We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights Governments are instituted among Men, deriving their powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the right of the people to alter or abolish it and to institute new Government laying its foundation as such on principles and organising its powers in such form, as to them shall seem most likely to affect their Safety and Happiness .”
Though the socio-politic part is short it expresses three fundamental doctrines of the enlightenment: equal natural rights among Men; the social contract as the foundation for political power; the right to overthrow a despotic government by Revolution (the latter two doctrines are logically connected with the first and ensue from it, for enlighten thinkers considered the social contract and rebellion.
Switzerland is another European country that provides a better of example for Democracy. It respects its citizens. There the people have a greater say in Government. The Initiative (constitutional device) is in wide use in Switzerland. Accordingly a petition from 50000 voters is need about to bring about a national Referendum which can accept or reject any legislation which has been passed by parliament and the like of which is not possible under West-Minister model of Parliament. The Initiative gives voters in many cantons the right to propose constitutional or legislative amendments and to demand a popular vote on it. A petition by 100000 voters is needed to initiate a vote on amendment to the Constitution. Initiative is also used by the political opposition to bring about changes in Government. Under the Westminster form of sovereign parliament no such things are permitted and the ruling class govern the country by keeping its citizens at its arm’s length. Constitution is not touchable by the people. In the present context of things, democracy as obtaining in this country has no meaning to the people and the government by the people is a mere phrase only.
Let not Divinity be attached to Parliament..!
December 13th, 2015 at 6:33 pm
We have very different problems, not just the question od democracy, corruption, cheating of public, exploitation, racism , shamelessness and thuggery.
This country is unnecessarily sabotaged by a minority racist groups. You give them something , they want more. You give them nothing , they riot.
We need ONE 90% honest leader who is bold enough to officially declare enough is enough, now we treat every one as equal, no more , no less and then start giving punishment to who don’t agree officially.
None of the current herd in the parliament is fit and people must realise it. No point hanging on to any of those.
December 15th, 2015 at 7:42 am
In response to Nanda’s comment.. Good luck finding leaders in SL who are honest, credible and patriotic. With all his weaknesses, MR was one of the few leaders who truly cared about the country and its future. Unfortunately, he lost touch with the reality by allowing his inner circle and the family members to take charge of running the country, leaving many people wondering if MR had lost his mind..?
Unfortunately, the alternative we got now is even worse than the MR’s regime. They came to power by crucifying MR and his family, which was overly exaggerated and fabricated, as we can see clearly now. The Yahapalanaya cartel (Siri/Ranil/Chandrika) baked by US/India combo who hated MR, hood-winked the masses cleverly and came to power with the help of Tamil and Muslim minority parties.
The present regime had no solid economic or social plan to move the country forward. They just wanted a regime change brokered by US/India, which was worried that MR was allowing China to get a foothold in the Indian ocean island.
Economically and socially, the country is worse off than today, as the agenda for this present regime is set by the US. Sri Lanka is rapidly losing its independence to run its own affairs, and make decisions on its own thanks to its blind loyalty to its foreign masters in the West. Security is at its worst point today thanks to pressure from the West, backed by the Tamil Diaspora lobby, which will push more and more for a separate state, by insisting that the present constitution should be changed to accommodate minority demands through a federal system like in India.
The sad part of all these is, the majority Sinhalese will eventually lose the control (if not already..) of their own country thanks to cunning and opportunistic politicians like Ranil/Sirisena/Chandrika, etc., who will go to bed with anybody as long as they can stay in power.
Unfortunately, this is the present reality that all Sri Lankans should realise before it is too late.. All I can say is, good luck finding future leaders who truly care about the country and its people, majority of whom are gullible, naïve, opportunistic and equally corrupted, just like the leaders who they elected….
December 15th, 2015 at 3:25 pm
NORWAY ARZ OLES ARE COMING BIG TIME TO DRAFT OUR NEW CONSTITUTION, WITH THE DAFT IMBECILES OF SRI LANKA. THE NEW CONSTITUTION WILL FIT THE TAMIL ASSPIRATIONS, PERIOD.
December 15th, 2015 at 3:32 pm
The only solution is a MILITARY TAKEOVER.
It is NOT perfect but far better than DEMO-CRAZY (actors and bleached faced big spending and big robbing crooks fooling the people).
SLs were NOT consulted when demo-crazy was IMPOSED by the British.
NO one man rule
The good about MILITARY RULE is it will have a PANEL. Not just ONE person. They have a RANK, SENIORITY, DISCIPLINE as BASIS of their structure. This structure is essential for ANY military to remain as a unit. Political parties have NO such structure. ANY drug dealer, rapist, criminal who can pump money for election work can enter parliament.
SENIORITY
There is SENIORITY in the military that ensures experience is rewarded. NO such thing in politics.
PATRIOTISM
Patriotism is another advantage. VERY FEW army huys are ACTUALLY patriotic but NO POLITICIAN is patriotic.
EDUCATION
ALL military leaders are trained, educated and disciplined. MOST of them graduate from KDU university. But only 10% MPs are graduates of SOME university. MOST 70% have failed OL.
PUNISHABLE
ANY wrongdoer can be punished under military rule. Even the TOP. NO politician has EVER been punished under SL democracy!!! Ruling party fears to punish others fearing REVENGE when ruling party changes. So no one punishes the other.
REPRESENTS THE POOR
NO politician represents the poor. They ONLY represent the rich. But 40% of SL population is poor and they have to be developed. MOST soldiers are from POOR backgrounds so military rule represents them in the power structure.
Military rule CANNOT go on forever. Once the military government has put in place a CONSTITUTION, elections will be held. They will under international pressure to hold elections. People will also demand it. So NO military rule of SL will be for more than 2 years.
Military takeover is needed NOT to rule SL in the long run but to INTRODUCE AN IMPARTIAL PRO-SL CONSTITUTION and then hand the country back to a STRUCTURED SYSTEM within which politicians will survive.
December 15th, 2015 at 3:40 pm
SW,
SL always had FOREIGN CONSTITUTIONS. We need a HOME GROWN constitution.
1931 – DONE-A-MORE BRITISH constitution
1947 – SOUL-BURY BRITISH constitution
1972 – OXFORD constitution
1978 – HARVARD constitution
2016 – NORWAY constitution
This is MADNESS. SL needs a HOME GROWN CONSTITUTION. MR was talking about a HOME GROWN constitution but FAILED to do anything.
December 15th, 2015 at 4:41 pm
ආණ්ඩුව ජාතික සමගිය නැති කරන්න හදනවා -NFF
‘ආණ්ඩුව හදන්නේ දණ්ඩ නීති සංග්රහය සංශෝධනය කරලා ජාතිකවාදය වෙනුවෙන් කැපවෙන පිරිස්වලට ‘මුඛවාඩම් බඳින්න‘ යැයි අද(15) බත්තරමුල්ලේ පිහිටි ජාතික නිදහස් පෙරමුණේ ප්රධාන කාර්යාලයේ පැවැති මාධ්ය හමුවකදී අදහස් දක්වමින් එහි ජාතික සංවිධායක, පාර්ලිමේන්තු මන්ත්රී ජයන්ත සමරවීර මහතා පැවසීය.
‘දණ්ඩ නීති සංග්රහය සංශෝධනය කිරිමේ පනත් කෙටුම්පතක් සහ ඊට අනුරූපීව අපරාධ නඩු විධාන සංග්රහය සංශෝධනය කිරිමේ පනත් කෙටුම්පතක් ඒ අනුව ඉදිරිපත්ව තිබෙනවා. මෙහි 15 වන පරිච්ඡේදයේ 290 වගන්තියේ සිට 291 ආ වගන්තිය දක්වා ආගමික, වාර්ගික හා ජාතික අසමගියට එරෙහිව ගත හැකි ප්රතිපාදන ඇතුළත් වෙනවා. යම් ආගමකට එරෙහිව සිදු කරන ක්රියාත්මකවීම. යම් ආගමික ස්ථානයකට බලහත්කාරයෙන් කඩා වැදීම, ආගමික ස්ථානයක අශෝභන ලෙස හැසිරීම, ආගමික ස්ථානයක් අශූද්ධ කිරීමට කටයුතු කිරීම ආදී ඕනෑම කරුණකට එරෙහිව කටයුතු කිරීමට ඉහත වගන්තිවලින් ප්රතිපාදන සලසා තිබෙනවා. එසේ තිබියදී තමයි මේ නව සංශෝධනය රැගෙනවිත් තියෙන්නේ.‘ යැයි සමරවීර මහතා කීවේය.
‘දණ්ඩ නීති සංග්රහයේ 291ඇ. වගන්තිය ලෙස බලාත්මක කිරීමයි මේ සංශෝධනයෙන් සිදු වන්නේ. භාෂිත, ලිඛිත හෝ කියවීමට අදහස් කරනු ලැබූ වචනයෙන්, හෝ සංඥාවලින්, හෝ දැකිය හැකි නිරූපණවලින්, හෝ අන්යාකාරයෙන්, ජන කොටස් අතර හෝ වෙනස් පන්තිවල තැනැත්තන් අතර හෝ වෙනස් වාර්ගික හෝ ආගමික කණ්ඩායම් අතර, දරුණු කි්රයා හෝ ආගමික, වාර්ගික හෝ ජාතික අසමගිය හෝ, අසන්තෝෂය හෝ, සතුරු බව ඇති කරන හෝ තැත් කරන, නැතහොත් ඊට පොළඹවන හෝ තැත් කරන යමකුට, අවුරුදු දෙකක් දක්වා කාලයකට දෙයාකාරයෙන් එක් ආකාරයක බන්ධනාගාරගත කිරීමකින් දඩුවම් කරනු ලැබිය යුතුය’ මෙසේ සංශෝධනය කළහොත් ලාංකීය සමාජය තුළ මෙතෙක් සිදු නොවූ ආකාරයේ ආගමික හා වාර්ගික ගැටුම් ඇති වෙලා විශාල ජාතික සහ ආගමික අසමගියක් නිර්මාණය වෙනවා. මේ වගන්තිය සම්මත වුණොත් එක් ජන කොටසක හෝ ආගමික කොටසක අසන්තෝෂයට හේතු වේ යැයි සැකයෙන් ‘මේ සිංහල අපගේ රටයි’ ගීතය ගයන්න වෙන්නේ නැහැ. එස් මහින්ද හිමියන්ගේ නිදහසේ දැහැන, නිදහසේ මන්තරය ආදී කවි පංති දරුවන්ට උගන්වන්නට සිදු වෙන්නේ නැහැ, නත්තල් කැරොල් ගීත ගායනා කරන්න වෙන්නේ නැහැ, ඇතැම් දෙමළ ගීත ගයනා කරන්න වෙන්නේ නැහැ, ඉස්ලාම් බැතිමතුන්ට යාඥා කරන්න වෙන්නේ නැහැ. පටු ජාතිවාදී, ආගම්වාදී ඇසකින් බලන පිරිස්වලට මේ වගන්තිය පාවිච්චි කරලා පොලීසියට පැමිණිල්ලක් ඉදිරිපත් කරන්න පුළුවන් ‘ඉහත ක්රියාවලින් අපට අසන්තෝෂයක් ඇති වෙනවා’ කියලා.
TNA Wants Govt to Withdraw Penal Code Amendment Bill as it is Inconsistent with A
(Text of a Press Statement Issued by the Tamil National Alliance on Proposed Penal Code Amendment regarding Hate Speech)
The Tamil National Alliance is deeply concerned about the proposed Penal Code (Amendment) Bill placed on the Order Paper of Parliament on 11 December 2015. The said Bill was placed on the Order Paper by the Minister of Justice.
The Bill seeks to introduce a new provision (Section 291C) to the Penal Code, No. 11 of 1887. A further Bill seeking to amend the Criminal Procedure Code Act, No. 15 of 1979 was also placed on the Order Paper.
We observe that the proposed Section 291C is nearly identical to Section 2(1)(h) of the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979 (PTA). The previous government used this very provision to target persons from the Tamil and Muslim communities and to deprive them of their freedom of speech and expression guaranteed under Article 14(1)(a) of the Constitution.
We recall that Tamil journalist J.S. Tissainayagam was convicted by the High Court of Colombo and sentenced to 20 years rigorous imprisonment under Section 2(1)(h) of the PTA. We also recall that Muslim politician Asath Salley was arrested and detained under Section 2(1)(h) of the PTA. Both these persons were critical of the previous government’s policies, particularly with respect to the treatment of minority communities. These incidents and others like them prompted international condemnation of the previous government’s use of the PTA to suppress media freedom and dissent.
We therefore wish to state that we strongly oppose the Penal Code (Amendment) Bill on the grounds that it is inconsistent with Article 14(1)(a) of the Constitution, which guarantees to every citizen the fundamental right to freedom of speech and expression including publication.
The present government recently co-sponsored Resolution 30/1 adopted at the 30th session of United Nations Human Rights Council. Operative Paragraph 12 of the Resolution refers to the present government’s commitment: ‘to review and repeal the Prevention of Terrorism Act, and to replace it with anti-terrorism legislation in accordance with contemporary international best practices’. Section 291C of the Penal Code (Amendment) Bill directly contravenes this commitment.
We note that Sri Lanka is already compliant with international standards with respect to hate speech. Section 3(1) of the International Covenant on Civil and Political Rights (ICCPR) Act, No. 56 of 2007 provides: ‘No person shall propagate war or advocate national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.’ Section 3(1) of the ICCPR Act reproduces Article 20 of the ICCPR, and is therefore compliant with international standards. The High Court is vested with jurisdiction to try offenders under this Act. We also recall that the Sri Lankan Supreme Court, in its Advisory Opinion in S.C. Reference No. 1 of 2008, referred to Section 3 of the ICCPR Act in the context of ‘legislative compliance’ with Article 20 of ICCPR. Therefore, there is absolutely no need to introduce new legislation on hate speech.
We accordingly call on the Government of Sri Lanka to withdraw the Penal Code (Amendment) Bill forthwith
December 16th, 2015 at 11:02 pm
Actually the New Amendment to the Penal Code as currently Gazetted can literally charge anyone and put them in prison without having to even specify what they are being charged about….
For example, it evidently states that: ” Whoever, by the use of words spoken, written or intended to be read…intends to cause acts of….communal disharmony or feelings of ill-will or hostility between communities …or of different classes of persons …. racial or religious groups….shall be punished with imprisonment….for a term which may extend to two years”.
NOTE WELL THE USE OF THE WORDS “FEELINGS OF”, “INTENDED” AND “INTENDS”, AS IF THERE IS ANY RATIONAL WAY TO JUDGE “INTENTIONS” AND “FEELINGS”. All of this reflects the Fascist State SL might be heading into.
And the promises for “FREEDOM OF SPEECH” made before the 2 Elections of 2015??
Fundamental DEMOCRACY flung off the window!!!