The Constitution as a cause for the violence and bloodshed
| by Basil Fernando
( October 17, 2014, Hong Kong SAR, Sri Lanka Guardian) As the possibility of an election has become a “hot topic” of the day, with it has emerged the problem of the 1978 Constitution and the system of the Executive Presidency, as a sharp point of contest and debate in Sri Lanka. In the midst of this unfolding scenario, President Rajapaksa, in a much publicized speech, stated that he would be willing, more than any other person, to abolish the executive presidency if, the TNA and the diaspora give an undertaking that they will not demand a separate state. In doing so, he has tried to create a justification for continuing with the executive presidency, as a measure to stand against any moves for a separate state.
Meanwhile, Athureliye Rathana Thero, Member of Parliament, representing the Jathika Hela Urumaya Party, which is a partner in the coalition government, stated in a highly represented public gathering that if it was not for the 1978 Constitution it was most likely that the former JVP leader Rohana Wijeweera and the LTTE leader Velupillai Piripaharan may have ended up as members of parliament and the bloodshed that the country experienced in the past three decades could have been avoided. He stated this at a meeting where a draft for an alternative constitution was submitted for public discussion. The view over-expressed by several speakers during this meeting was that the 1978 Constitution was introduced purely to achieve the individual ambitions of its originator, former President J.R. Jayawardena and, presently, it serves only the personal interests of the incumbent President Mahinda Rajapaksa and his family. Athureliey Rathana Thero, also publicly apologized for voting with the government in passing the 18th Amendment to the Constitution.
While there are many issues of importance in this debate, one particular aspect of interest to all is the public identification of causes for the violence in the past several decades. How far the 1978 Constitution contributed to creating the background for this violence and the ensuing bloodshed is an important issue not only from the point of view of the debate on a possible election but also for understanding vital societal issues in Sri Lanka.
As for the President, to state that he is the person who wants this Constitution to be abolished more than anyone else is an admission on his part, that this Constitution is an evil one that needs to be abolished. As to how an evil constitution could contribute to create and sustain a unitary form of government is beyond comprehension. Thus, the President’s own argument seems to sway in favour of that of his opponents – that there is no justification for not abolishing this Constitution.
Perhaps, the Sri Lankan electorate is beginning to understand how the extreme forms of violence that have prevailed in the country have been the creation of evil political manipulations of just a few persons enjoying the privileges of power and the possibilities of self-aggrandizement, purely for selfish gains. What this implies is that the people have been exposed to a politically criminal scheme to achieve the selfish aims of a few unscrupulous persons.
Perhaps this is a moment when the nation can come to a greater self-understanding of the factors that have caused this peril. If such a self-understanding could be achieved, a firm foundation would be created that would guide the people who, in the future, will try and resolve the nation’s problems.
The debate, therefore, is one about “arising out of a catastrophe”, and not about saving the country from a catastrophe, as President Rajapaksa wants to present it.
Athuraliye Rathana Thero also pointed out some of the ongoing consequences of this catastrophe; the lawlessness that prevails everywhere, causing Sri Lanka to be identified as one of the trading posts for narcotics and drugs, money laundering, the sex trade, and the like. The spread of drugs is causing devastation in the villages of Sri Lanka on one hand and on the other hand there are problems such as the deaths of several persons a week due to kidney ailments for which no solution has been found and a litany of many other such problems.
A constitution that causes lawlessness is the tragedy that the country is faced with. The selfish creators of the Constitution created lawlessness for their own “political survival”. This lawlessness has virtually destroyed the independence of Sri Lanka’s Judiciary and also the independence of the Legislature. Both these branches of government were a threat to the Executive Presidency. The people have thus been exposed to lose of the court as a place for resorting to settle their disputes and the parliament as a forum of public debate on matters that concern the nation. President Rajapaksa still argues that this is a necessary condition in order to maintain the unitary state. The Constitution also caused the displacement of all public institutions, including the premier institution for the enforcement of the rule of law, i.e. a competent and an independent policing system. Daily reports in the media reveal how low this institution has sunk.
The result of these and other problems created by the Constitution is that genuinely free and fair elections become impossible. This is perhaps the reason why President Rajapaksa cannot agree to abolish the existing constitutional framework for the executive presidency, though he publicly declares that he wants to abolish it more than anyone else.
Perhaps, the nation is beginning to emerge out of the control of the propaganda machinery, which has been attributing all its levers as consequences of “the war”AHRC-ART-083-2014-02.jpg. The nation perhaps is beginning to see that “the war itself, was a product of the supreme law of the country” – the Constitution.
Basil Fernando is a leading Asian human rights defender. In a career spanning three decades, he has been pivotal in linking ordinary citizens striving for human rights principles at the grassroots to institutions working for structural reform at the policy level. He is one of the 2014 recipients of the "Right Livelihood Award" for his work on human rights in Asia.