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The Sunday TimesNews/Comment

06th, April 1997

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Draft constitution: a step forward, yet little headway

By Kishali Pinto Jayawardena

Last week's sudden burst of reconciliation and goodwill between President Chand-rika Kumaratunga and Opposition leader Ranil Wickremesinghe has breathed some desperately needed life into the ongoing constitutional reform proposals.

Quite apart from the status of the devolution package, the entire process of bravely fashioning a new constitution for a new Sri Lanka had become anything but brave. Hence the almost total disinterest by the public when the latest constitutional draft was released recently.

Explosive rhetoric by the UNP about taking Justice Minister G. L. Peiris to court over the release which it termed premature was further dismaying. No one, it seemed knew the exact status of what had been released, what had been discussed or indeed what was going on.

The UNP accused the Government of one upmanship and worse.

"Release of the proposals in this manner was a breach of faith," insisted the UNP member of the Parliamentary Select Committee (PSC) and former Information Minister, Tyronne Fernando, in an interview with The Sunday Times

The UNP stand was that the PSC had agreed that the draft should only show the areas of agreement and disagreement and should come back to the PSC for approval before release to the press.

"After all, Select Committee members have to go back to their Working Committees and obtain approval for what has been agreed," said Mr. Fernando.

Justice Minister Peiris who led a high-powered team to South Africa shortly after the proposals were released did not respond to the controversy but a PA member of the PSC who preferred to remain unidentified said the PSC, including the UNP, had in fact agreed to the release of the proposals as a government release.

"Considering the public importance of these proposals, it was felt that narrow and technical rules of procedure should give way to the larger public interest. It was not said that what was released had the approval of everybody, things are subject to change even now. There was no need for all this controversy," he said

The UNP did not agree.

"These are Select Committee proposals. It should have been a Select Committee announcement. No member of the Select Committee should feel that he has been used............credit sharing is a must," said UNP MP Tyronne Fernando.

Thus, amidst the sound and the fury, when the PA and the UNP reached a historic agreement in search of peace, it was never inauspicious. Political/legal activists and analysts commenting positively on the new consensus, pointed out that it should be effectively used to revitalize the constitutional reform process, both in spirit and in form.

Quite apart from the devolution package, which is politically and nationally sensitive, other aspects of the Draft Constitution have come under extensive fire for being ultra conservative. It has been pointed out that the entire process has been shrouded in secrecy, belying the lofty preamble to the draft which declares "We the people of Sri Lanka........ hereby adopt, enact and give to ourselves........."

Experiences in other countries which have fashioned for themselves revolutionary new basic documents have of course been different. Coincidentally, the most notable recent example is South Africa to which Justice Minister Peiris, Attorney General Sarath N. Silva, Legal Draftsman Nalin Abeysekera and fundamental rights lawyer Jayampathy Wickremaratne took wing to, days after some sections of the draft constitution were released. Here, the South African people enthusiastically entered into the spirit of constitution making process, arguing and discussing the issues in the media, and actively influencing the decision making process. Thus a constitution was born freeing their country from the fetters of the past, and bearing on it the true stamp of its people.

The mechanism that the South African legislators used, to turn out their basic document was a constituent assembly that comprised professionals, academics and legislators, and not a select committee of legislators. This, of course, brings us to the question whether the Parliamentary Select Committee is equipped to handle really innovative constitutional reform making. So far, what has come out has not been particularly impressive, either with regard to the provisions relating to fundamental rights, the judiciary or the legislature.

Compared with the 1978 Constitution, there are positive improvements such as the category of rights have been expanded to include a number of new rights such as the right to life and liberty and the right to privacy.

It is significant to note that the provision introducing the death penalty has been dropped from the recent draft. Restrictions on the freedom of thought, conscience and religion have also been thankfully removed. Public interest litigation has been upheld and persons can go to court for violation of their rights not only with regard to executive and administrative action but state action as well. The time limit for fundamental rights applications has been extended from one to three months.

However, many defects remain. All existing laws are still given validity even though they violate the Constitution.

Retention of this clause in spite of strong disapproval, both national and international, comes as a definite disappointment.

It should be noted that this provision which is clearly contrary to international law is not present in the South African Constitution.

Moreover, though a person other than his lawyer can appear on behalf of a victim, still a "victim" is needed. In other words, laws that are by themselves unjust cannot be challenged on policy grounds. In India, the position is different, and the existence of a "victim" is not needed. If the same is implemented here, several Emergency Regulations that are clearly unjust could be challenged.

Again, the new draft talks only of civil and political rights, with only one economic right being mentioned.

In South Africa and Ghana, there are specific rights relating to women, children, the environment, and working conditions in their Constitutions. India has for long been interpreting social and economic rights in an activist manner. Sri Lanka has preferred however to ignore these exciting changes sweeping across the world.

The new constitutional provisions relating to the judiciary are also subject to criticism. One particular point immediately catches one's eye. The Draft states that judges of the appellate courts will be appointed "after ascertaining the views of the Chief Justice". This wording is appreciably different to an obligation to "consult" the Chief Justice, and is important in the context of developments recently in India and Pakistan where the Supreme Courts of both countries have held that the duty to consult is more than a formality, and extends to a duty to follow that advice.

Why is it that the Draft has decided to use different wording? Is the change deliberate or is it unintentional?

It is interesting to note that the summary of the draft provisions released to the press contains the word "consult" rather than the word "ascertain" The difference is more than splitting hairs, it can be the pivotal point with regard to which a conservative or an activist bench may differ.

The Draft says that prior to removal of the superior courts by Parliament, a committee of three senior judges will conduct an inquiry. While this change has to be acknowledged, the final decision still remains in the hands of Parliament.

In other words a like situation where former Chief Justice Neville Samarakoon was brought before the House and shamefully humiliated could still happen. Activists have for years been calling for an independent commission to look into the removal of judges of the superior courts. It appears that politicians are still deaf to their appeals.

Moving on to other provisions, the Draft preserves intact the concept of proportional representation, quite contrary to earlier promises made that this would give way to the German system which attempts to "marry" the old first past-the-post system with the PR. Half the legislature is elected on the old system while the other half is elected taking PR into account.

Overall, the Draft contains many features that invite extensive discussion and debate. One can only hope that the country and its people will make up for lost time even now.


Going the Yugoslav way - not quite

When the Marxist-Leninist gods had finally failed, even Chairman Mao Tse-tung, the Great Teacher and Great Helmsman had to navigate in increasingly unfriendly seas. Soon Mao's "course" was dropped from the curriculum. Deng Xiao-ping saw to that. However quite a few unrepentant Marxist-Leninists discovered a last redoubt.... Enver Hoxha's Albania, its utterly "independent line".

It is now clear however that neither Hoxha's ideological "purity" nor his tough totalitarian style could contain certain, irrepressible forces and fissiparous tendencies which earned the region a permanent place in the discourse.... "Balkanize", i.e., to divide an area into small antagonistic states. The collapse of a national saving scheme which affected hundreds of thousands of families triggered the current crisis.

Right now, every foreign office in Europe, serious newspaper and an area specialist poses the same question. Could Albania prove another Yugoslavia on a smaller scale?

Another question follows. Would the European Union (EU) prove as helpless or ineffective as it did in post-Tito Yugoslavia? At an inter-governmental meeting, the members of the EU could hardly ignore the problem.

The EU is deeply concerned. The cause for the mounting anxiety could be summed up in a word, refugees. The Yugoslav experience is the nightmare.

The US, the sole superpower, seized the opportunity to send Europe a simple message. The EU has the men, the money and the experience to clean up the mess in Albania. Look after your problems, clean up the backyard.

But things do not move that easily - or neatly - in "the New World Order". Conflict-resolution, mediation, negotiated settlement, restore peace and stability. Before it becomes a regional problem to de-stabilise the whole area. That certainly was what the United States would like to see. Europe not only has the men, the money and resources to clean up its backyard but also it knows the rules of the game, the post-Cold War "order". And so the clear signal to the European Union.

Regional Role

"The violent unrest in Albania and the threat of instability spreading in the Balkan region are rapidly turning into a test of the European Union's capacity to respond to crises in its own backyard" wrote the British commentator Lionel Barber. He did not need to remind his readers of what happened to Yugoslavia at the turn of the last decade.

But"Third World" students of the Balkan crisis need to be reminded of that violent upheaval if only because Yugoslavia, a founder of the movement, hosted the inaugural NAM summit. Tito's Yugoslavia seemed a model for the newly independent, multi-ethnic countries of the under-developed "Third World" or so Jawaharlal Nehru, the authentic architect of non-alignment was convinced when he saluted Tito's courage in standing up to both superpowers - the USSR, the colossus nearby and the US giant across the Atlantic. The break-up of Yugoslavia, the process, began in the last few years of Tito.

EU Action

The relevance of Yugoslavia was strongly underlined by the European mediator.

Franz Vranitzky, when he spoke to the press in Rome on Wednesday,

"We must avoid the sort of mistakes made in former Yugoslavia," he said. Mr. Vranitzky is the O.S.C.E. envoy to Albania. A European organisation rather than an international body, its main concerns are "security" and "co-operation".

He addressed the press after meeting the Italian Foreign Minister Lamberto Dini. The refugee flow also underlines Italy's importance in any mediation exercise.

Foreign Minister Dini came on centre-stage largely because the European Union (the word "union" should be kept in mind in the current context) appeared to lack initiative or was muscle-bound. Yes President Sali Berisha did receive some high-ranking EU visitors, including Mr. Hans Van Mierlo.

Mr .Van Mierlo, the Netherlands Foreign Minister holds the highest EU office, the rotating European Union Presidency. He met the Albanian President. Despite a demand for fresh elections, the Albanian leader simply kept saying, "yes" and "yes, but...." It was then that Italy spotted a window opportunity.... wide open.

In the initial absence of a EU-coordinated crisis management exercise "the same British commentator added" the Italian government seized the initiative. It was after Italy made a move that the others got into the act - the Greek government, the Council of Europe, and the O.S.C. Italy and Greece of course did point out to foreign correspondents that it would be these countries that the "first-waves refugees" would pick as sanctuaries, certainly in the short-term.

No takers

The Treaty of Rome was signed forty years ago. And yet when the European Foreign Ministers met to celebrate the anniversary, they could not say a polite "yes" to a request for urgent military assistance - an armed contingent to support a humanitarian aid mission and longer-term reconstruction of the country. In a despatch from Rome, British reporter, Robert Graham focused on the "divisions" in the European Union: The conflicts among the 15 member states were "too deep" to forge a consensus.

And this after violence-torn Albania's Prime Minister, Mr. Bashkin Fino had arrived in Rome in the company of several Cabinet Ministers to "make a collective appeal to the EU for a multi-national force which he believed was the only way to restore order in his country".

The British Foreign Secretary Mr. Malcolm Rifkind had his own assessment to justify the same response. "Premature" was the word he chose to use. The situation on the ground was still confused. His German counterpart, Mr. Klaus Kinkel had his own reasons for saying "no" too. Germany would not send troops since conditions in Albania "bore no similarity to the NATO-led peace-keeping operation in Bosnia.

But the host, Italian Foreign Minister had his own reason to say more or less the same thing. Italy could not act alone although it had assumed "major responsibilities for Albania." It was no lame excuse. Having studied the reaction of fellow Europeans, he has thrown the net wider. He has discussed the matter with others, and at least Rumania and Turkey have NOT said No. These two countries may offer "a stabilisation force" of at least three thousand.

After Stalin's death, Albania invited international attention as the "loner".

The international community may agree that it is best to leave Albania alone, or let the "Reds" have it.

Albania can become the first post-communist one-party state, says Fron Nazi, an analyst specialising in Balkan affairs, at the "Institute of War and Peace reporting".


M'membe's court nightmare begins now

Astor Award winner goes on trial to face first of more than 50 charges

The Zambian government's extraordinary campaign against last year's Astor Award winner, Fred M'membe, returned to court late in January. The founder and editor-in-chief of The Post daily faces more than 50 charges.

The first of many cases began in the High Court, where Mr. M'membe was charged under the State Security Act. He is accused of receiving and publishing classified information after his Lusaka newspaper reported last February that the government was considering holding a referendum on the country's constitution.

If convicted, Mr M'membe faces up to 25 years in jail.

The issue of the newspaper in which the report appeared was also banned, and The Post is challenging the legality of the ban in the Supreme Court later this year.

The State Security Act case, though, only ushers in a string of other prosecutions. Mr M'membe's next scheduled trial, again to be heard in the High Court, will be to face charges of criminal defamation. These were brought at the instigation of Richard Sakala, the special adviser for press and public relations to President Frederick Chiluba. The charges relate to articles published in 1994 which report alleged police accusations against Mr. M'membe .

Mr. M'membe also faces two separate charges of criminally defaming President Chiluba. The first claims that Mr. M'membe defamed the president by repeating allegedly insulting remarks made in court by a former minister.

The second alleges that Mr. M'membe defamed President Chiluba by reporting a claim that the president had a daughter with a Zairean lover. President Chiluba, a born-again Christian, has made personal morality a key element in his political programme. He has also introduced constitutional changes limiting the public role which the children of non-Zambians can play.

The Post is seeking a court order requiring the president to submit to a DNA test to establish whether or not he is the child's father. The government is resisting the application.

Mr M'membe also faces several charges arising from reports in The Post in 1994. Among these, he is accused of "publishing false information with intent to cause fear and alarm to the public cause. This charge arises from an article reporting United Nations criticism of help given by President Chiluba to the head of the Unita movement in Angola, Jonas Savimbi. At the time, Unita was involved in a bitter civil war with the Angolan government .

Other charges allege Mr M'membe and The Post received a cabinet memorandum, possessed and printed classified documents in contravention of the State Security Act.

He is also accused of treason, sedition and inciting the army to revolt after The Post published articles claiming, among other things, that dissatisfaction was rife in the Zambian army.

In February last year, Mr M'membe, The Post's managing Editor Bright Mwape, and columnist Ruth Sichone were convicted of contempt of parliament by the parliamentary Speaker. Mr M'membe and Mr Mwape were both held for 23 days in a maximum security prison before a Supreme Court judge ordered their release on a legal technicality.

The Supreme Court must still rule on the substantive issues involved in the "conviction" under the National Assembly Powers and Privileges Act. If it rules for the government, the three would be returned to jail, where they could be held indefinitely.

The CPU has repeatedly condemned the vendetta against Mr M'membe and The Post. Senior office bearers and the Secretariat are examining ways of providing greater practical support to him and his colleagues throughout what could be a protracted, expensive and exhausting period.

Other organisations including the World Press Freedom Committee, Amnesty International and Article XIX are also watching developments. CPU News

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