Friday, September 03, 2010

Ethnic cleansing still going on in Sri Lanka, Markham refugee says

By L.H. Tiffany Hsieh | York Region

It took 45 days at sea. When the ship docked, the man could barely walk and had trouble breathing. He saw a Canadian flag and it signaled freedom and security to him.

However, what the man wished for was to have died on the boat.

The man in this story has been on a journey since last October, when he fled his country and found himself in Canada, and eventually Markham.

Due to publication ban of a security nature, The Economist & Sun can’t name him or disclose details that may identify him.

He is best known for the time being as one of the 76 Tamil refugees on board the Ocean Lady last fall.

“We felt we were going to die for sure,” the man said through translator Peri Casinathan, a volunteer with the Canadian Tamil Congress.

“There was no time to think of food — it was a fight to stand straight — everybody was sea sick.”

The refugee claimant — he is now waiting for his hearing before the Immigration and Refugee Board — said he lived a normal life in Sri Lanka, where he had a house, a wife, and a young child. He knew no one on the boat and no one in Canada. One day found himself having to leave the country immediately in order to save the lives of his family, he said.

“The day I decided to leave, human value was buried in Sri Lanka,” he said.
Within six hours, with only two backpacks, he flew to Bangkok, Thailand. Next he was approached by a stranger, who spoke no Tamil and little English and wanted his passport. The refugee claimant said he paid the stranger $40,000 U.S. cash to board the Ocean Lady.

“Coming to the ship was an accident,” he said, noting it was also illegal. “I was in a very confused state of mind.”

The refugee claimant said he was targeted by the Sri Lankan government due to his profession. He said the declaration that the war between the government and the Liberation Tigers of Tamil Eelam (the LTTE, also known as the Tamil Tigers) was over was just a show for the international media.

“It was not a war on terrorism. It was a war against Tamils — it was an ethnic cleansing and it’s still going on,” he said.

He said if he were killed in Sri Lanka, his family wouldn’t be able to identify his body, because the Sri Lankan government would burn his head or chop it off.

During his four months in a detention centre in British Columbia after landing, the man said his only connection to the outside world was a TV in his holding cell.

“I was sad that we were labelled terrorists back home and after I landed here, we were labelled terrorists by mainstream media, only because we were born Tamils,” he said.

While the Sri Lanka High Commission in Ottawa states on its website that the recent arrival of the MV Sun Sea with 490 illegal migrants on board is a human smuggling operation with links to the LTTE, the refugee claimant said they are “future war crime witnesses.”

He said if he could apply for a visa or immigration, instead of docking here illegally, “I’d have taken the Sri Lankan government to the international court.”

These days, the refugee claimant is learning English and reporting to immigration officials weekly, while his family is in hiding in Sri Lanka. He describes life in Canada as a crushed paper and still says he would have preferred to have died on the Ocean Lady.

“I have no control over my life now — I can’t work, I can’t go to university or college, and I don’t want to be a burden to Canadians,” he said. “When my family is in danger, I’m not in a position to make friends or enjoy life.”

Should his refugee claim be successful, he said he plans to bring his family over. But the process is a long one, said Mr. Casinathan, the translator.

“It’s about 10 to 12 years from the time you land to when you become a Canadian citizen,” Mr. Casinathan said.

Asked if he has any advice for the migrants currently being detained for security screening, “the border services people are doing an excellent job,” the refugee claimant said. “You should be thankful. You can live peacefully in this country.”

© York Region

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Friday, September 03, 2010

Sri Lanka: Media organizations slam 18th Amendment


Several Sri Lankan media organizations have expressed their deep concern about the proposed 18th Amendment to the Sri Lankan constitution, calling it is a violation of "the freedom of expression on the part of the people and disregarding all the democratic norms." The proposed controversial amendment seeking removal of presidential term limit has sparked widespread protest among many civil society groups even though the cabinet has already given the nod.

The joint statement signed by Sri Lanka Working Journalists Association (SLWJA), Free Media Movement (FMM), South Asian Free Media Association (SAFMA), Sri Lanka Muslim Media Forum (SLMMF), Sri Lanka Tamil Media Alliance (SLTMA), Journalists against Suppression (JAS) and Federation of Media Employees Trade Union (FMETU)has called upon the masses "to seriously consider the proposals for amendments and to assess realistically the harm that they might cause to democracy."

Full text of the statement follows:

"The Alliance of Media expressed its deep concern over the changes that are to be made to the Constitution as the 18th Amendments to the Constitution, violating the freedom of expression on the part of the people and disregarding all the democratic norms.

The accepted norm of bringing up amendments to the Constitution is to make such amendments after being discussed among the masses and arrived at consensus on them. But it is a dangerous trend to make such amendments in the form of an Emergency Bill violating that cardinal principle.

When the country requires a new Constitution to address the challenges faces the nation, the amendments which further concentrate power seriously around one person and dismantling checks and balances on that rule taking an individual nature, would further establish this dangerous trend.

The Alliance of Media urges the masses to seriously consider the proposals for amendments and to assess realistically the harm that they might cause to democracy, good governance and independence of government’s service. It also emphasis to rally against these undemocratic proposals made without peoples’ consent."

© Journalists for Democracy in Sri Lanka

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Friday, September 03, 2010

18th Amendment: An all out war against democracy

Click here to read the text of the drafted 18th Amendment

Press Release | Asian Human Rights Commission


A simple way of understanding the 18th Amendment is to compare it to the situation in the United States of America. The president of the United States is elected for a term of four years and is entitled to remain in power for a maximum of two terms. This is an absolute limit. Suppose this limit was removed and a US president could contest the election and remain in power for an indefinite period of time. What difference would that make to the entire system of governance in the country; to understand that we have to go into the principle of this absolute limitation.

The principle is that any person who is vested with extraordinary powers should be subjected to limitations and the principle behind that is that no human being is worthy of absolute trust. No one will be trusted with power absolutely. Entrusting power must be accompanied with the placing of limitations to that power. The limitation of two terms was made on that basis. Behind this is the whole notion of binding power. Power should be bound otherwise power can destroy the very things it is supposed to protect.

A nation can be destroyed by the political power of one person. The idea of checks and balances within a presidential system is connected to the placing of limitations on the terms of the presidency. If in the United States the president can remain in power for an indefinite period of time that would affect every institution within the country. The president is only one component of the power of the state. There are so many components that have to function independently if the state has to function correctly, to provide security for the people in order govern in such a way that a society can be managed for its own benefit.

When the head of a state has the possibility of remaining in power indefinitely he will interfere with all the other units; the Attorney General's Department, the courts, the police, the public service and all other independent components of power. All those components that deliver services will be interfered with when one person has unlimited power.

If the president of the United States of America can be elected indefinitely it would turn the entire system upside down. The system simply cannot function anymore. The ruling individual will become the nation and the nation will be subordinate to this ruling individual rather than this ruling individual serving the nation. This is the whole conception of power that is at stake. The 18th Amendment is challenging one of the most sacred notions that has been developed by civilisation: that power must be bound, power must be limited and that this is the only way to preserve the sovereignty of the people, the independence of the nation and that the power of the individual will not become a destructive force.

The discussion on the 18th Amendment with this, at this stage is simply irrelevant. If there is a president that is able to stay in power indefinitely whether there will be an 18th Amendment or not is simply irrelevant. It will be dealt with by the president in the same way it was dealt with in the past.

The issue at the moment is not so much on the 17th Amendment but rather the issue of the time limits to the power of the president. If this principle is taken away Sri Lanka will be pushed together with those nations where all principles have been abandoned. In 1978 one of the constitutional experts declared that Sri Lanka was going in the same path as the Central African Republic where Jean Bedel Bokassa introduced a constitution with absolute power. Today it has taken a further step downwards. We cannot remain as a civilised nation if a limit on presidential power is not imposed.

This is not about an individual, this is about a nation. Is the nation more important than a particular individual or not? This is what is at stake. It is a moment of enormous importance and a step taken in the wrong direction can plunge Sri Lanka into political anarchy for many years to come.

Fundamental aspects of democracy that cannot be changed even with a two thirds majority and referendums

One of the lessons that have been learned from history by democratic nations is that under certain historical circumstances democracy itself can be used in order to destroy democracy. The emergence of Adolf Hitler through popular vote and the subsequent developments brought home to the population in Germany that there were limitations in their past understanding of constitutionalism and this led to the leaving of room for persons with tyrannical ambitions to subvert the whole process of democracy and turn it into fascism.

In the post world war period one of the serious concerns of the German people was to find ways to prevent the possibility of the manipulation of democratic forces to destroy democracy itself. The entire constitutional law was rethought and new mechanisms were developed to prevent the recurrence of this possibility.

One of the fundamental notions developed was that there are certain fundamental aspects of democracy which should be written into a constitution and these aspects cannot be changed even by a two thirds majority or a referendum.

A major weakness of the 1978 Constitution was that it created room for the easy manipulation of the constitution by the use of a two thirds majority in parliament and by referendum. As J.R. Jayewardene was moved by authoritarian ambitions it was not to his benefit to incorporate the developments of democratic nations relating to this important aspect. Thus, the 1978 Constitution left room for the destruction of democracy itself by the manipulation of the two thirds majority and the referendum process.

The limitations on the terms of the presidency and provisions for checks and balances against the abuse of power should be kept as an unchallengeable and unchangeable part of a democratic constitution.


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Friday, September 03, 2010

The 18th Amendment to the Constitution: Process and substance

By Groundviews

The President has proposed to make changes to the constitution via an urgent bill. The changes known as the 18th Amendment to the Constitution, seek to remove the two term limit on being elected to the office of the President and the Constitutional Council under the 17th Amendment. As required under the Constitution, the President has referred the urgent bill to the Supreme Court. Supreme Court heard the Government’s arguments and the arguments of six intervening petitioners on Tuesday 1 September 2010.

These changes have not been discussed in the public domain and they are sought to be made in secret. It is important to note that even at the Supreme Court hearing the intervening petitioners were only given copies of the proposed changes after the government started making its submissions. This article explains how the Constitution can be amended, what the key changes are and the legal arguments advanced in favor of and against the changes.

Procedure for changing the Constitution

The Constitution can be amended by passing a bill with a two-third majority of Parliament. However any constitutional changes that affects certain entrenched Articles of the Constitution needs a two third majority and approval at a referendum. For example a change that affects Article 13 (which devolves power to provincial councils) or Article 3 (which establishes the sovereignty of the people) would require a referendum. A referendum is only successful if the total number of ‘Yes’ votes amount to an absolute majority of the total valid votes cast at the referendum.

If Parliament seeks to amend the Constitution via an urgent bill, the President is required to seek the opinion of the Supreme Court. In its opinion, the Supreme Court is required to state a) whether the bill actually changes the Constitution and b) whether a referendum or whether a simple a two third majority is sufficient to make the proposed changes.

On Monday, 30 August 2010, the President and Cabinet of Ministers introduced an urgent bill to make changes to the Constitution. On Tuesday, 31 August 2010, the urgent bill was referred to the Supreme Court.

Key Proposed Changes to the Constitution

Removal of the two term limit: There will no longer be a limit on the number of times an individual can be elected to the office of the President.

Repeal of the 17th Amendment: the Constitutional Council will be replaced with a new Parliamentary Council. The President will seek the ‘observations’ of the Parliamentary Council in making appointments to key governments posts. However where the Parliamentary Council fail to communicate its observations to the President within the specified time, the President can proceed to make appointments solely at his discretion.

Restricting the role of the Election Commission: The Election Commission will no longer have the power to issue directions to prevent political parties from using state resources to advance their campaigns during elections. Further the private media will be under a duty to comply with guidelines issued by the Election Commission.

Proceedings before the Court

The reference by the President was heard by a special Supreme Court bench comprising of Justices Bandaranayake, Sripavan, Ratnayake, Imam and Suresh Chandra. The Attorney General advanced arguments on behalf of the Government, and explained the proposed changes to the Court. A summary of his arguments is as follows:

Changes enhance the franchise: Removal of the two term limit is in fact an enhancement of the franchise of the people. It will introduce a “galaxy of choices” in terms of presidential candidates. “The people’s choice will be unfettered.”

Improve accountability: Mandatory attendance at Parliament by President will bring the President more in to the process of the Parliament, and thus make him more accountable to the People.

From the outset it was clear that 17th Amendment could not work: In its original 17th Amendment judgment, the Supreme Court “prophesized” that the 17th Amendment would not work. The 17th Amendment is directory and not a mandatory provision of the Constitution. Therefore the current proposal to repeal it, would not affect the sovereignty of the people. [That is 17th Amendment does not affect ‘sovereignty’ which consists of fundamental rights, franchise and powers of government]

The Constitutional Council was inherently flawed: It was impossible to reach a consensus on who should be appointed to the Council. Further, the Constitutional Council consisted of members outside the Parliament; therefore, it was impractical for the members to reach a consensus. The new Parliamentary Council would consist only of members within the Parliament. Therefore, it is bound to work better than the Constitutional Council.

Intervienients’ Arguments

In proceedings like this, there is a process for interested parties to intervene and raise their objections to the proposed amendments. There were six intervening parties representing different interest groups, including the Centre for Policy Alternatives and Ravaya newspaper. We have summarized the key arguments raised by the intervening parties.

Manner in which these amendments are sought to be made violate the first principles of Constitutionalism. The manner in which these changes are sought to be made demonstrate a shocking disregard for basic internationally accepted norms of Constitution making. These changes affect the independence and integrity of democratic institutions of this country. Yet these proposed changes were hatched in secrecy with no public consultation. The Constitution is meant to protect and empower the people from those who wield political power. If the Constitution can be changed by the wielders of power without participation of those whom a constitution is designed to protect the basic rationale for having a Constitution is undermined.

What is the urgency? The Bar Council of Sri Lanka has passed a resolution stating that amendments to the Constitution ought not to be rushed through as ‘urgent bills’. Bill are deemed urgent, when the Cabinet decides they are ‘urgent’ in the national interest. The Attorney General has not made clear why these changes have to be made ‘urgently’. It is difficult to escape the conclusion that the changes are being rushed through to avoid proper judicial scrutiny and consideration by civil society. It is important to note that the intervening parties only received their copy of the bill AFTER the Attorney General started to make submissions to the Court. The Supreme Court should use this opportunity to lay down guidelines and criteria for the introduction of urgent bills.

Supreme Court has a special responsibility. The Basic Structure Doctrine as developed by the Indian Supreme Court requires that even with a two third majority basic features/ values of the Constitution can not be amended. The rational of the Basic Structure Doctrine requires that when those who wield power want to introduce amendments to benefit themselves, and NOT the people, the Supreme Court has a special responsibility to protect the people. Similarly in the United States there has long been a thought that even if the Supreme Court was to be deferential to the political branches when it comes to political matters, the Court had to accept a special responsibility to ensure the integrity of the democratic process.

Survey of Constitutions from around the world reveals necessity of term limits. It’s important to see what the practice in other countries is with regards to term limits on the head of government. First, there are no term limits on countries with parliamentary forms of government. This is because of the nature of Parliamentary system, you elect a party not a person, and the presence of the Prime Minister is always balanced by the presence of an opposition in Parliament. Further, the Prime Minister can at any time lose his position if he does not have the support of a majority of Parliament. Term limits are always found in countries with an executive president. If you look around the world the following countries do not have term limits: Azerbaijan, Singapore, Syria, Turkmenistan, Vietnam, Venezuela, Yemen, Belarus, Costa Rica, Cuba, Niger, Algeria, Burkina Faso, Libya, Uganda. Except for Costa Rica, all of these countries are one party states or dictatorships. Singapore is often portrayed as a model of development, but it is important to remember that it is a one party state. In its 94 member parliament, 82 are from the ruling party, 9 are appointed members and only 3 are from the opposition. Only a few countries have removed term limits and still managed to avoid being a dictatorship: Peru, Chile and Uruguay. In these countries a President can hold office for unlimited number of terms, but the terms can’t be consecutive, thus providing for an important safeguard. With this proposed 18th Amendment to the Constitution, Sri Lanka will be joining ranks of one party-states and dictatorships.

Term limits provide an important check on the concentration of power. First, the longer a President holds power, the line between the ruling party and the state becomes blurred. Second, the longer a president holds office; the balance of power between the three arms of government will tilt to the Executive. Third, term limits allow for those aspiring to power to wait for their chance to run for office. Thus, it prevents aspiring candidates form resorting to unconstitutional action to get in to power. Fourth, the term limits promote a party based as opposed to a personality based form of democracy. Fifth, defeating a long sitting president is a very difficult task. The sitting President has unrivaled and unfettered access to public resources and campaign funds. Even in the most consolidated multi-party democracies, there are always flagrant abuses of state resources during elections. Therefore, having a President that can run for an unlimited number of terms, will significantly weaken the chances of other candidates to wage successful election campaigns.

Removal of the two term limit violates the mandate of President Rajapaksa. The proposal to remove the two term limit violates the mandate given by the people at two successive presidential elections. In 2005, Mahinda Chinthanaya 1 promised to abolish the Executive Presidency before the end of the first presidential term. Mahinda Chinthanaya 2 promised to a) reduce the powers of the executive presidency, and b) make it more accountable to Parliament. The proposed changes are totally contrary to these promises contained in the Mahinda Chinthanaya.

This change requires a referendum because if affects the sovereignty of the people. [As noted above a referendum is only required when any proposed amendments to the Constitution affects certain provisions. On the surface the proposed changes don’t affect any of those provisions]. However it was argued that these special provisions need to be interpreted more broadly. For example, the referendum clause doesn’t say that a referendum is required if the writ jurisdiction of the Court of Appeal is to be taken away. But surely, if the propose amendments tried to take away the jurisdiction of the Court of Appeal, then that would require a referendum? Similarly, the proposed changes need to be seen in a broader context and how they undermine the sovereignty of the people. Any change that affects the sovereignty clause (Article 3) requires a referendum. Sovereignty includes the powers of government and fundamental rights of the people. The removal of the two term limit will affect the balance of the three branches of government; in particular it will remove an important safeguard against arbitrary government action. Similarly, the 17th Amendment strengthened the sovereignty of the people by providing an important check on arbitrary executive action. Further the 17th Amendment, served to enhance the independence, legitimacy and efficacy of the institutions that facilitate the realization the fundamental rights of the people. (For example, the judiciary, the Human Rights Commission, the Elections Commission, the Public Service Commission and Police) Therefore, as these changes affect the fundamental rights of the people, the balance of powers of government, they ultimately affect the sovereignty of the people, and requires a referendum.

This change requires a referendum because if affects the provincial councils. One must read the Constitution as a whole. The proposed amendments seek to significantly do away with the powers of Finance Commission and the National Police Commission. Such amendments requires further special procedure set out in 154G (2) – (3), that is, the change must be gazetted and referred to all the Provincial Councils, so they can express their views on the proposed changes.

Attorney General is incorrect to submit that the 17th Amendment is directory. The text of the Constitution, the intention of the framers, the rationale or purpose of the 17th Amendment and the determinations of the Supreme Court (in the 17th, 18th and 19th Amendment cases) show that the 17th Amendment to the Constitution is mandatory. The Hansard proceedings of the debate on the 17th Amendment especially the speeches of Prime Minister Ratnasiri Wickremanayake an Mr Wimal Weerawansa, make it absolutely clear that the intention of the framers, the intention of the legislature was that the provisions of the 17th Amendment were to be mandatory.

Toothless Parliamentary Council: The proposed alternative to the Constitutional Council would result in the politicization of key government posts. The proposed alternatives would curtail the freedom of thought and conscience of key public officers and Commissions.

Reducing the powers of the Electoral Commission will undermine the future of free and fair elections. The proposed amendments will do away with a key safeguard that prevents the abuse of state resources by the ruling political party.

Oppression of Private Media: The proposed amendments allows the Election Commission to impose guidelines on Private Media during elections. The private media ought to be able to function freely, enabling voters to freely decide at an election. This would undermine the general public’s right to information. The right to information is the staple of their right to through and conscience (protected by Article 10 of the Constitution).

Click here to see the table in summary form compares the existing provisions of the Constitution and the proposed amendments.

© Groundviews

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Friday, September 03, 2010

'Asylum seekers tortured upon return to Sri Lanka' Amnesty International says

Australian Associated Press | News.Com

Three asylum seekers forcibly removed to Sri Lanka in 2009 are believed to have been tortured and jailed following an attempt to return to Australia, says Amnesty International.

The human rights group said it held grave fears for the men who now risk further torture and abuse from guards and prisoners.

The development comes amid warnings from the coalition that Australia faces a surge in asylum seeker traffic following a deal between Labor and the Australian Greens.

Authorities this morning intercepted asylum seeker boat carrying 59 passengers and two crew in waters north of Christmas Island - the seventh arrival since the election on August 21.

Amnesty International said two of the men - Sumith Mendis and Lasantha Wijeratne - were taken to hospital on Wednesday after claims they were beaten and tortured following an alleged new attempt to seek asylum in Australia.

It is not clear if they are still in hospital or have been returned to prison, where the third man, Indika Mendis, is being held.

Dr Graham Thom from Amnesty International said the return of the men to Sri Lanka when they still faced persecution meant Australia was in breach of its international obligations.

"This puts Australia at serious breach of our obligations under the convention against torture,'' Dr Thom said.

"We are not allowed to send people back to a country where they face torture or death. And quite clearly we have sent people back who have been tortured and who are still at risk.''

"We have grave fears for these three men right now.''

"The three men are Sinhalese fisherman, rather than Tamil as is usually the case with asylum seekers from Sri Lanka, and are understood to be at risk because of their roles in having helped to crew the boats they travelled on to Australia.

Sumith Mendis and Indika Mendis were detained in 2009 at the Christmas Island detention centre after the boat they were on was stopped by Australian authorities.

They were deported to Sri Lanka where they were arrested and handed over to the Central Investigative Department (CID).

It is understood Sumith Mendis was released but Indika Mendis was tortured while custody before being transferred to the notorious Negombo prison where he was held for eight months.

The brothers were arrested again last month on suspicion of planning to again seek asylum in Australia and are believed to have been taken to Negombo prison on August 22 along with Mr Wijeratne, who had also previously been deported from Australia.

The development came as opposition immigration spokesman Scott Morrison today seized on the arrival of another asylum seeker boat to warn three key independents against siding with Labor in negotiations on forming a minority government.

"We've had now more than 300 people arrive illegally while we've been here and others have been here in Canberra discussing who will form the next government,'' Mr Morrison told reporters in Canberra.

"Under a Labor/Greens alliance, supported now also by Andrew Wilkie, it is clear that Labor's policies on border protection will only get softer.''

The Greens are opposed to offshore processing of asylum seekers, as is Mr Wilkie.

However, the support offered by the Greens and Mr Wilkie extends only to supply and no-confidence motions.

A spokesperson for Immigration Minister Chris Evans rejected Mr Morrison's comments, adding that Labor was committed to offshore processing.

"Once again, Mr Morrison's comments have no foundation in the truth,'' the spokesperson said.

"A Labor Government will maintain its commitment to strong border security. The Gillard Government has invested more in border security measures than any other government and has outlined a clear policy for the establishment of regional processing centre.''


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Friday, September 03, 2010

Sri Lanka: JVP to distribute 2 mn leaflets against proposed 18th Amendment

By Dasun Edirisinghe | The Island

The JVP yesterday launched a campaign to educate the public on what it called the dangers of proposed 18th Amendment to the Constitution, which envisages far reaching constitutional changes to strengthen the hand of incumbent President Mahinda Rajapaksa.

A spokesman for the JVP said that the party would distribute two million leaflets in Colombo and the provinces as part of its overall campaign against the government’s move. The JVP launched the campaign by distributing leaflets opposite the Fort Railway Station yesterday.

JVP General Secretary Tilvin Silva told a public gathering in Colombo, early this week, that the 18th Amendment would lead to a dictatorship. The JVPer accused President Mahinda Rajapaksa of trying to consolidate his family rule.

The JVP, early this week, moved the Supreme Court against the government move.

© The Island

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Friday, September 03, 2010

A society in denial and a President on rampage

By Thisaranee Gunasekara | Sri Lanka Guardian

“What happened here was the gradual habituating of the people, little by little, to being governed by surprise, to receiving decisions deliberated in secret… And their sense of identification with Hitler, their trust in him, made it easier…and reassured those who would otherwise have worried about it”.- Milton Meyer (They thought they were free: The Germans – 1933-45)

Unlike Gregor Samsa, the main protagonist in Kafka’s The Metamorphosis, Sri Lankans will not wake up one morning to discover that they have become transformed, overnight and in their slumber, from citizens into subjects. Our fall from citizenship is more gradual and perceptible (for those who are not wilfully blind), a lengthy process which is happening with our consent, witting or unwitting. The constitutional amendments to remove presidential term-limits and enhance the powers of the presidency mark the defining moment in this semi-consensual process of de-democratisation.

Of course we will profess outrageous surprise and deny responsibility when, someday in the future, we become sensible of our fall from freedom to subjugation. And characteristically, we will seek to blame someone, anyone other than ourselves, for our collective fall – a task which would be made easier by the obvious culpability of that most ineffective UNP cum Opposition Leader in the history of Ceylon/Sri Lanka, Ranil Wickremesinghe. Unarguably Wickremesinghe, the UNP and the opposition would be at fault, if they fail to defeat the proposed constitutional changes; but they would not be the sole culprits. Part of the blame cannot but accrue to us, as individuals and as a society, if we fail to acknowledge the danger inherent in the proposals to remove presidential term-limits while enhancing the powers of presidency and opt not to combat these anti-democratic measures with all democratic means at our disposal.

JR Jayewardene was the first executive president; the party he headed, the UNP, also enjoyed a colossal five-sixth majority in parliament. That combination gave him enormous power, power to make and power to unmake; it also inculcated in him a vision of his power which far outstripped his actual power. (He famously boasted that the only thing he, as the Executive President, cannot do is to change a man into a woman and vice versa. He was to discover that the limits of his power in actuality were more numerous and varied. He could not fight the Eelam war to a finish; he could not prevent an Indian intervention; he could not defeat the JVP insurgency.) His intelligence clouded by hubris, Jayewardene went on to make mistake after unavoidable mistake, until their cumulative weight undermined his own party and nearly destroyed the system.

Jayewardene may have acted as if his power would never end, but even in his most hubristic moments, he knew that his stint at the top would be a finite one because of the term-limit clause. He entertained some thoughts about a third term and toyed with the idea of a constitutional amendment, but was persuaded by his hand-picked General Secretary, Ranjan Wijeratne, to retire at the end of his second term. Wijeratne argued that only a Premadasa presidency would be capable of defeating the raging JVP insurgency and Jayewardene, in the final analysis a rational man, concurred. The fact that Jayewardene wanted power just for himself and not for his family and his total lack of dynastic ambitions made Wijeratne’s task easier. Had Jayewardene a family to promote and a dynastic project to secure, he may not have been amenable to Wijeratne’s appeal to reason and enlightened self-interest.

Rajapakses, Forever

Mahinda Rajapakse wants power not just for himself, but also for his family. And he wants to be succeeded in some remote future by a kin, ideally a son or else a brother. He has both power hunger and dynastic ambitions. He has worked consciously and consistently, with remarkable ingeniousness, to concentrate more and more power in the hands of himself and his close and trusted relatives; he is also grooming his eldest son to succeed him. He does not want to go into uncelebrated, undistinguished, unremembered retirement, like JR Jayewardene and Chandrika Bandaranaike Kumaratunga. Nor does he want to see an outsider stepping into his shoes, thereby pushing his family back into the political margins. With a combination of hard work and good luck, he has secured the political heights for himself and his family and he is not about to let a mere constitutional impediment take it all away. His retirement at the end of the allotted two terms would undo both Familial Rule and Dynastic Project. If the rule of the Rajapakse Family is to continue and if Rajapakse is to be succeeded by his son, he needs to stay as President beyond his allotted two terms. The constitutional amendment to remove presidential term-limits was thus predestined, given the nature of Rajapakse rule.

The cabinet has approved the constitutional amendment, predictably. The old left whimpered and succumbed (both DEW Gunasekara and Tissa Witarana would prefer to end their days as cabinet ministers; every other consideration will be subsumed to this overarching desire). The Supreme Court is unlikely to place any serious impediment against the triumphal march of the Rajapakses. Hopefully, the opposition will file several cases in the courts, challenging the constitutional amendments and demanding that their adoption be subjected to not just a two thirds majority in parliament but also a national referendum. Even if the cases are lost, they will give the beleaguered opposition some breathing space, a little extra time to get its act together and launch a national campaign against these most anti-democratic proposals.

If the opposition fails to launch a national protest campaign and the SLMC goes ahead with its shameless betrayal, Mahinda Rajapakse will be able to bulldoze his signature constitutional reform through parliament. Thus JR Jayewardene’s most important concession to democracy, the clause which limits a man from holding the powerful executive presidency to a maximum of 12 years, will be nullified. Once the term-limit clause is removed, Rajapakse will be in a far more unassailable position than any other leader in independent Ceylon/Sri Lanka. He will not only hold the powerful executive presidency and enjoy an absolute majority in parliament; he will also be able to contest again, and again, as many times as he wants. This confluence will act as a powerful deterrent to any potential dissenters. After all, anyone who is tempted to challenge the Rajapakses is likely to think twice, given the fate of Sarath Fonseka; the likelihood of dissent will plummet to even greater depths, if the constitution is changed to permit Rajapakse to run again and again. Therefore, the moment to resist is now, before the cloak of permanent omnipotence is appropriated by Rajapakse.

The argument that if the electorate so desires, it will be able to vote out Rajapakse would have been credible had the 17th Amendment been in place। Had the independence of the bureaucracy in general and the police force and the elections commissioner in particular been assured constitutionally, free and fair elections would have been possible. But the Rajapakses deliberately killed the 17th Amendment and are now seeking to replace it with an amendment which will give back to the President the power of hiring and firing key top officials. According to media reports, the Constitutional Council will be replaced by a five member Constitutional Advisory Committee which will be appointed by the President; the ‘Independent Commissions’ apart from the Police Commission will be retained but once again the power to appoint these commissions will be given to the President. All appointments and transfers in the police service will be made by the IGP who, of course, will be appointed by the President. The President will also appoint the Elections Commissioner and other top officials. In other words, the new reforms are aimed at giving the President untrammelled and absolute power and permitting him to wield that power indefinitely. Logically can anything democratic or independent survive in such a lopsided setup?

Turning a Blind-eye

It is not only individuals who seek and obtain solace through denial; societies do so as well. Lankan society’s collective descent into denial preceded the election of Mahinda Rajapakse; indeed, it commenced with the Ranil Wickremesinghe-Vellupillai Pirapaharan peace process. As the LTTE abused the ceasefire in plain sight, accumulating money, weapons and recruits, murdering opponents and setting up symbols of independent statehood, government and society went into denial. Peace was then the only manthra and anyone who pointed out the anomalous nature of the Tiger conduct (using the time-space created by the peace process to prepare for war) was decried as a war monger.

A similar process is in evidence today. Mahinda Rajapakse and the Rajapakse Family are occupying more and more of the political and economic heights, as the Lankan society looks on, indifferently. The Rajapakse power-grab has become the elephant in the room. Our collective refusal to acknowledge reality has enabled the Rajapakses to extend and accelerate their power-accumulation. Take, for instance, the term-limit removal saga. The relevant constitutional amendment was proposed soon after the election. When the reaction to it from the polity (including from within the UPFA) turned out to be no so encouraging, the Rajapakses gave the impression of abandoning the idea. Instead the President offered to talk to the UNP about a new constitution. As is evident now, the entire exercise was a diabolically clever political manoeuvre; Rajapakse engaged Ranil Wickremesinghe in talks on a new constitution, while the constitutional amendments which would enable him to seek a third term and enhance the powers of the presidency were being drafted in secret. The President had previously taken the Attorney General’s Department and the Legal Draughtsman’s Department under his own wing, a move which obviously enabled him to keep the amendment drafting process under the wraps.

Sometimes, it is better to look at what a leader does than what he says. The present and the future become perfectly explicable when one remembers the way Rajapakse watched with complaisance, time and again, as besotted or opportunistic supporters hailed him in the most extravagant of term, in songs and speeches. Only a man with a megalomaniac mentality could have tolerated such obvious drivel with placid equanimity. Rajapakse did not see anything untoward in being hailed as a king and a god, because that is how he sees himself, as a ruler for life whose will should be obeyed unquestioningly because he is infallible. What such a leader requires are not citizens but subjects, obedient and quiescent, if not worshipful. Once Rajapakse entrenches himself for the long haul, he will enact other constitutional amendments which will inexorably diminish democratic spaces and equate opposition to the ruling party and family with disloyalty to the state and the country. This may seem farfetched now, but every transformation the Rajapakses have implemented up to now seemed impossible before they happened. In fact, the Rajapakse revolution has been enabled by a collective psychological response on the part of the Lankan society which begins with dismissal and ends with indifference.

Will we be able to take off these psychological blinkers before it is too late? Or will we permit the Rajapakses to forge ahead with their constitutional reforms, empowering the Ruling Family and de-empower democracy, with our silence?

© Sri Lanka Guardian

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Friday, September 03, 2010

Sri Lanka: Second court martial against former army commander reconvenes today

News First

The second court martial against former Army Commander parliamentarian Sarath Fonseka is to reconvene at 2 this afternoon.

“Charges against the former Army commander in relation to deviating from the accepted protocol when procuring weapons for the military will be examined when it reconvenes,” said Major General Ubhaya Madawela, military spokesperson. He noted that the witnesses of the respondent will be called up for the first time today.

Even though the court martial was to reconvene on Wednesday it was postponed as his doctors had communicated to the court that he was not feeling well.

The military said that four persons had been named as the respondent's witnesses.

© News First

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Friday, September 03, 2010

Rao faces some hard questions in Jaffna

By Sutirtho Patranobis | Hindustan Times

India on Wednesday rejected reports that it was bringing its own nationals to Sri Lanka to carry out reconstruction work in the war-ravaged northern districts. Foreign secretary Nirupama Rao, on a three-day visit to the Island nation, categorically denied that there was any move to bring in Indian labour for reconstruction work here. Construction of houses and other reconstruction work that India was helping Sri Lanka with was being done with local help, Rao reiterated.

A report in the local Sunday Times newspaper had claimed that India was transporting 20,000 workers to Sri Lanka to carry out reconstruction activities.

On Wednesday, Rao visited the eastern coastal town of Trincomalee and Mullaitivu, the final theatre of battle.

"We will not only build houses but also repair them. We want to participate in their recovery and progress," Rao said during her visit to the Mullaitivu administrative district.

On Tuesday, Rao visited Jaffna, the senior-most Indian bureaucrat to do so in decades, Kilinochchi and the camps for the internally displaced in Vavuniya.

In Jaffna, Rao had an interactive meet with members of the civil society where Tamil academics and intellectuals shared their complaints, apprehensions and expectations about India's role in Sri Lanka with her.

According to reports, Rao was told that the people of Jaffna expect India to play an active role in extracting a political settlement on the ethnic issue from Colombo. But at the same time, doubts were expressed whether India, which sided with the Mahinda Rajapaksa regime in its fight against the Tamil Tigers, would indeed help the Lankan Tamils to get that. Mere resettlement of war-displaced Tamils in small pockets of the northern districts will not achieve anything, she was told.

Rao, meanwhile, met President Rajapaksa on Wednesday evening. Rajapaksa told her that Indian investor interest in Sri Lanka was rapidly growing, and that several leading Indian entrepreneurs in industry and other sectors have expressed interest in setting up business in Sri Lanka.

A statement from Rajapaksa's office said during the 45-minute discussion, Rao expressed satisfaction at the progress in IDP resettlement. Rajapaksa said that IDPs should be involved in these projects, especially the housing projects, so that they would have a sense of ownership in them.

© Hindustan Times

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Friday, September 03, 2010

Sri Lankan fishermen hard hit by peace

By Mel Gunasekera | Agence France Presse

Fishermen in the Sri Lankan port of Trincomalee hoped the end of the island's civil war would bring prosperity, but dynamite and corruption now threaten their livelihoods.

Trincomalee, on the northeast coast, has one of the world's finest natural harbours and was fiercely fought over during the war until government troops finally defeated the rebel Tamil Tigers in May last year.

"The problem we have now is that although we have the freedom to go out and work, the fish are being illegally destroyed to the point where we can?t earn a living," said captain Ananda Peiris after a dawn expedition that brought in just 30 kilogrammes (66 pounds) of tuna.

Peiris hoped his small boat would haul in good profits when restrictions on fishing were lifted after peace broke out.

But he says the end of the war has resulted in a free-for-all that leaves him with tiny catches as big operators bribe authorities and use dynamite to kill large numbers of fish, also damaging coral reefs.

"A lot of fishermen are going out but because others are doing dynamite and purse seine (circular net) fishing, we are not able to earn money," he said.

"We've told the government but they're not doing anything. Our natural resources are being destroyed and I don't know what to do."

The Fisheries Ministry says the annual catch last year rocketed to 28,000 tonnes from just 8,000 during the war -- and it admits that the increase is due in part to illegal dynamite fishing and big business corruption.

"The government has banned this type of fishing. But we depend on the navy to patrol the waters and prevent these horrible methods," Fisheries Minister Rajitha Senaratne told AFP.

"There are certain Navy officials in certain places who are also involved with the business people in the area. Therefore, they are not taking quick action," Senaratne said.

For the 8,000-strong community of small-scale fishermen in Trincomalee, there has been no sign of a "peace dividend" since decades of bloody ethnic warfare in Sri Lanka came to an end.

"During the war where we could only fish in daytime, I earned about 10,000 rupees (90 dollars) a day. Now I barely earn 2,000 rupees," said fisherman Mohammed Fazlan, 39.

A third-generation fisherman, Fazlan blames authorities for not tackling the illegal and unregulated fishing rackets that have taken over control of waters that were until recently infested by Tamil Tiger mines.

During the war, the Tigers carried out several daring attacks on Trincomalee harbour, which was a critical transport link from where government troops, food and ammunition were ferried to the battlefields further north.

"The illegal fishing is done under political patronage," alleged Naghappan Parasuraman, 61, president of Trincomalee Fishermen's Society. "During the war the Tigers banned it, and people were scared of them. Now no Tigers. People want quick money.

"The people who do dynamite fishing, the government must make the navy catch and punish them."


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