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by the Consumer watch

The constitution and national problems

According to a news report of 22nd August 2005 the Minister of Constitutional Affairs and National Integration speaking at a seminar on 'Democracy and Peace' at the Kegalle UC Auditorium said "the country faced various problems today due to the constitution of the late J. R. Jayawardene in 1978.

Therefore it has become incumbent to change the existing constitution that caused ethnic conflict and several unresolved disputes of the Tamils".

He has identified the following matters all of which according to the Minister are directly attributable solely to the 1978 constitution:

1. It has caused ethnic conflict and unresolved disputes with the Tamils;

2. The recent sharp increase in the crime rate, to check which, an amendment to the constitution he said "is vital". The implementation of the death sentence will not bring down the crime rate, "unless the constitution is amended and fresh legislation is introduced".

3. "Due to the constitution many problems facing the Tamils cannot be resolved. This resulted in terrorism"

4. "Unless the constitution is amended there cannot be a government with a full majority".

5. There is no national and religious concord. To achieve success in these fields, changing the constitution is a must".

These observations coming as they do from the Minister in charge of Constitutional Affairs and National Integration himself merit serious consideration by the public at large and by concerned citizens.

Besides, these comments have been made at a seminar and not at a public political rally and therefore could not have been uttered in the course of a heated debate or to win votes at a pre-election rally. They are the considered views of the Minister in charge of this very subject and a Minister whose wide reading on political subjects and long years of experience in the political field merit the fullest and earnest consideration of us all.

Let us consider the above matters. Has the ethnic conflict been caused by the 1978 constitution? The general understanding of the public is that with the killing of the Mayor of Jaffna Alfred Duraiappah the first killing took place. That was before the 1978 constitution.

"Contrary to popular perception, Tamil insurgency originated in northern Sri Lanka in the early 1970s. From 1970 onwards, there were a number of acts of terrorism in the Jaffna peninsula. In February 1971, bombs were thrown at the residence of the Jaffna Mayor Alfred Duraiappah.

On March 11, a bomb was placed in his car. On August 27, 1972, Velupillai Prabhakaran, the current leader of the LTTE, who was only 18 years of age, lobbed bombs at a carnival organized by the Mayor in the stadium in Jaffna. Once again bombs were thrown at the stadium on September 17, and at the Mayor's residence on December 19, 1972. On July 27, 1975, Duraiappah, who visited the Krishnan temple at Ponnalai in his car, was assassinated by Prabhakaran and two others."

Page 172 "Peace in Sri Lanka" - article by Rohan Guneratne (an internationally acknowledged expert on terrorism)

The Vadukoddai Resolution calling for the establishment of a "free sovereign secular socialist state of Tamil Eelam based on the right of self determination" in the Northern and Eastern Provinces was passed in 1976- before the 1978 constitution. By 1976 the leaders of the Tamils had thus taken a decisive step towards Eelam. One is therefore somewhat puzzled by the Minister's statement that the 1978 constitution caused the ethnic conflict. Would the Minister please clarify?

There is a substantial though unascertained body of opinion that ever since independence in 1948 the southern leaders have done little to gather the people of a plural society and bring them under the protective umbrella of "one nation" assuring all of them fairplay and a sense of equality; in other words that the minorities were "short changed". This however is a far cry from saying that the 1978 constitution caused the ethnic conflict and resultant disputes which have escalated to a bloody conflict over 20 years.

Related to this matter is item 3 above that "due to the constitution many problems facing the Tamils cannot be resolved". If the Minister can be more specific rather than making a broad unsubstantiated statement, the public would be more enlightened and be supportive of any reasonable change or amendment to the constitution.

Many would suggest that the problems facing the Tamils have not been resolved because the political leaders did not earnestly and genuinely attempt to solve them, but were influenced by political exigencies. For example the constitution declared that Sinhala was the official language (Article 18), thus giving no recognition to Tamil as an official language.

It was only in 1987 that Tamil was 'also' recognized as an official language by the Thirteenth Amendment, whereas a bold and unequivocal statement that Sinhala and Tamil are official languages would have obviated the feeling of 'second class' by the Tamils. Of course one can find excuses of difficulty of implementation. The problem is that the willingness was not there.

There are today many Administrative Districts declared bilingual so that both Sinhala and Tamil are of equal status but where even after the 13th Amendment of 1987 in fact the Tamil language has not been given this recognised status by non-implementation. The deficiency is therefore in the area of implementation, not the law. The lack of implementation is due to the absence of the political will to do so. Why blame the constitution?

The Minister had identified the lack of national unity and religious concord as being attributable to the constitution. Religion was and is never an issue which divided people even though Buddhism the religion of the vast majority has been given the "foremost place in the constitution" (Article 9) As for national unity, ever since the division of education into language streams, the mindset of the younger generation of Sinhala and Tamil children was covered by blinkers and they grew up ignorant of the culture and language of those speaking the other language. Is this a problem attributable to the 1978 constitution?

The Minister then has said (item 4 above) that unless the constitution is amended there cannot be a government with a "full majority". What he means by this concept of "full majority" is not understood. A possible interpretation is that with proportional representation one party cannot have a majority government.

However the PR system was introduced because the first past the post system was considered not truly representative of the will of the people. We have by now reached the stage where the mixture of the PR and the first past the post system is much talked of and if the politicians agree will be tried out.

Any constitution will require amendment from time to time with evolving situation. Has the Minister a specific proposal to make on this matter? If so why does he not suggest it for public consideration and debate?

In the context of the so called "national" or "ethnic" problems what constitutional changes would the Minister in charge of the subject of Constitutional Affairs and National Integration make for the consideration of the public. Being the very subject entrusted to him, he and the Ministry would have by now formulated their proposals.

Why not put out a white paper on the subject of constitutional reforms because this is a matter of intense public concern? If we collectively have faulted over the years, let us all get together and resolve the outstanding problems by dialogue and consensus rather than blaming the constitution for all our failures.

The Minister has stated at the above seminar that even the crime rate has sharply increased (item 2) and to check this increase an amendment to the constitution "is vital". Was he thinking of the death sentence which though always the law, no one wanted to implement, perhaps fearing an evil karmic reaction.

The death sentence was widely spoken of after the Ambepitiya Case when the Prison Authorities even imported a new rope for the hanging. But all this seems to have receded to the background. In any event there is no evidence that the death sentence and its implementation ever was an effective deterrent.

Efficient Police detection and investigation, trials without delay and adequate punishment are more likely to deter crimes. Recent serious security lapses which are much commented upon, political interference - (see the news item that a bus with some 40 defects unfit to be put back on the road, where a politician is alleged to have coerced the police into putting the bus back on the road!) with the police investigations, corruption within the establishment are more responsible for the increase of crimes than any Constitutional shortcomings.

The rampant increase of Bribery and Corruption among public personalities, notably politicians with their undisclosed assets, are very much a part of "today's problems" inimical to good governance and the lack of transparency. Several instances of non-implementation of existing laws have already been referred to from time to time in this column. With elections round the corner, all this will recede into the background.

The Minister has been in this office for about fifteen months. His Ministry by now would surely have identified whatever shortcomings there are alleged to be in the "Bahubutha Constitution". Which Head of the State has even castigated the very Constitution he/she takes an oath at office to uphold, will ever denigrate the supreme law of the land.

If the Ministry can even now put out a White Paper or any other document setting out the amendments to the Constitution that will overcome the problem he has identified at the seminar referred to at the outset, it will lead to informed or serious public debate on vital issues which will be conducive, even after over 50 years of independence, to the establishment of one united nation.

The future generation which the Hon. Minister fears "will curse us" will on the contrary applaud him if he, even now, without blaming the 1978 Constitution for all the ills he has identified, were to go public on the Constitutional amendments he proposes and give the public an opportunity to comment on those proposals.

There are enough organisations today like CIMOGG, Transparency International, and the OPA and others, which are committed to good governance. Their views could easily be ascertained and the Constitutional amendments the Ministry proposes can be considered by them too if only they are made public so that whatever the shortcomings of the 1978 Constitution identified are, they can be amended and this nation can go forward without a facile barking back to the past.

There is now a further comment made by the new Minister of Parliamentary Affairs whose ideas (if properly implemented) can lead to more informed debates in Parliament and hopefully less of her rancour and unseemly behaviour of the people's representatives. He seems to think that a reversion to the Westminster type government is the answer to today's problems.

An editorial comment of the 2nd September refers to the restructuring of the CTB and the political interference in the past particularly with over staffing (more than two dozen employees per bus) leading to un-profitability and the demise of the CTB.

A Secretary to a Provincial Council Ministry has declined to give evidence against the Chief Minister of the Western Provincial Council (against whom serious allegations were made in the recent past) at a Commission of Inquiry alleging that he was under threat and has referred to several misdeeds of the politician concerned.

All three news items appear in one day in one newspaper. None of these problems arise directly or indirectly from the Constitution.

Not to be outdone the Chairman of the Bribery Commission has recently stated that his Commission is hamstrung because he cannot act on his own volition unless a formal complaint is made to the Commission. Was this shortcoming discovered only recently. Why was action not taken to make this Commissions powerful enough to make it truly a deterrent against Bribery and Corruption?

Consumer Watch sees the overall picture as one where NOT the institutions created by law that have failed, but where the political will to implement them has not measured up to public expectations. When laws and institutions fail, the slide to anarchy is inevitable. Will we have the courage to cry halt to this descent to self-destruction?

Consumer Watch is deeply concerned with steady decline in standards of Public morality and with non-compliance with existing laws. We are at 143A, Vajira Road, Colombo 5.

www.ceylincoproperties.com

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