16th January 2000

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Focus on Rights

A matter of conscience

By: Kishali Pinto Jayawardene

Undoubtedly, this latest curiosity thrown up by the political gyrations of our times has an attractive ring to it. A Members Conscience Bill?

At the outset, one is subject to considerable incredulity. Conscience, in this day and age and political conscience at that, is after all, a little hard to swallow. However, one does not have to proceed very far in one's incredulity before one is hauled back to reality with a resounding bang.

As the state media keep reminding the public in a frenzy of wholly misconceived self-righteousness, the contemplated Bill is 'merely' on the lines of a similar strategy under the fifth Parliament, initiated by the then UNP Government and limited to the time span of that particular body.

The move, at that time, received support from "prominent UNPers" of that time. The reasoning therefore is nauseatingly predictable. These UNPers, including Opposition Leader Ranil Wickremesinghe would accordingly find it hard to oppose a Bill on similar lines now. Thus, the Government would be able to muster its two-thirds majority to implement its long delayed constitutional reforms and present the country with an admirable if not slightly bedraggled fait accompli.

Far from trumpeting the above from the rooftops, it would have been better if government apologists had kept quiet about this reworking of a typically opportunistic JRJ strategy. Then, it was utilised to enable opposition MPs to cross over to the government and was worked in a shamelessly partisan manner. Thus, a member who was expelled from the party had the option of appealing to the Supreme Court or a Select Committee of Parliament.

The deliberations of these Select Committees, on which the majority were from the government, were wholly dependent on whether the individual crossover in question was beneficial to the government or not.

Thus, TULF member C. Rajadurai who crossed over to the Government continued to sit in Parliament until its dissolution in December 1988. On the other hand, when Neville Fernando of the UNP was expelled, he found himself out of Parliament within the short space of one month.

A similar fate befell Ronnie de Mel when he resigned from the UNP and joined the SLFP in August 1988. A Select Committee reported in less than a month that he should be expelled from Parliament and a resolution of expulsion was about to be introduced when he resigned his seat in September 1988.

This strategy of protecting "selected cross-overs" was limited to the fifth parliament by President J.R. Jayewardene precisely for these self-same politically opportunistic reasons.

Thus, notwithstanding the thinking of the government backers behind the Bill, the fact that the contemplated Bill intends bringing back this particularly unsavoury status quo cannot, by any means, be a stamp for its approval. On the contrary, it means only that the opportunism of the past is being repeated in the best traditions of political expediency.

Aggravating the whole even more is the fact that no member of the public has seen the contemplated Bill as yet. In the best traditions of the past, the Bill is being hatched in secret and will undoubtedly be tabled in Parliament with the scarce one-week period for challenge before the courts sans any kind of worthwhile public debate. Thus, any discussion of its substance now is not possible.

Given its wide ranging implications for the political dynamics of this country however, it seems necessary to focus on the form that such a so-called "Conscience Bill" really ought to follow.

Essentially one of the greatest problems identified with the present Constitution had been the inability of party members to resign and opt for another parliamentary grouping without suffering loss of seat. It was the architect of the constitutional document previous to the 1978 Constitution, Colvin R. de Silva, who summed it up most succinctly:

"All over the world, parliamentarians are supposed to show their independence by crossing the floor. Here, you can't cross the floor or if you cross it, it must be because you are cross with yourself because you end up outside. Now, is this the kind of parliament you should have? How will that be an instrument of any kind of democracy, leaving aside pluralistic democracy? What kind of instrument and what kind of policies and what in heaven's name will that parliament be doing?"

Throughout the years, we have seen truly in "heaven's name" what this has led to. The dominance of party leadership over its members has been complete, up to a point where the slightest dissent from party positions has been ruthlessly dealt with. Quite apart from the numerous instances of open and vociferous defiance of the party whip, one of the most glaring examples in this respect was that in 1987 when the two hapless MPs for Kamburupitiya and Hakmana were summarily expelled merely for abstaining from voting on the Thirteenth Amendment.

The upholding of this summary form of party discipline in certain decisions of the Supreme Court also tended to reinforce the current thinking that the will of the party prevails in the most authoritarian manner over the will of the individual party member.

It was for these reasons that particularly from the eighties, legal and political analysts including the present Minister of Justice then a professor of law and Vice Chancellor of the University of Colombo, had begun calling for revision of the present constitutional provisions relating to crossing over and expulsion.

All the best arguments were accordingly put forward. Should defiance of the party whip and consequent expulsion from the party necessarily stipulate the automatic loss of his or her seat? Or should there be circumstances where the member could retain his or her seat notwithstanding the above?

Opting for the latter, it was argued that it might be necessary to distinguish between the circumstances that are in issue before expulsion automatically involves loss of seat in Parliament.

Thus, if a member of the government parliamentary group for example, were to vote against the annual Appropriation Bill or if such a member were to vote in favour of a motion of no confidence moved against the Government by the Opposition, expulsion from the party might arguably involve losing the Parliamentary seat as well.

Such a member would, of course, be able to appeal to the Supreme Court on the basis that his expulsion was unfair or unjust.

However, in instances involving a very definite issue of individual conscience such as in voting against the extension of the emergency, expulsion from the party ought not to result in automatic loss of Parliamentary authority as well.

These were only some of the ideas advanced in wide ranging discussions on the need to ensure that party control over a Member of Parliament is relaxed from its present rigidity.

Sri Lanka, of course, had witnessed a gentler past a long, long time ago, when members opted to and were allowed to disagree on policies within the party as opposed to expulsion or crossing the floor purely for individual personal gain. Thus in particular, Dudley Senanayake and R.G. Senanayake during the Prime Ministership of John Kotelawela, continued to be highly critical observers of policies followed by their party leader.

Similarly, members of the Communist Party voted against the Criminal Justice Commission Bill implemented by a Government in which it was a constituent party. Other such instances are legion. All this was, acknowlegedly, in a different and vastly more honourable political era.

Now, we have a Millennium Conscience Bill with, to all intents and purposes, very different political thinking behind it. The exact nature of the Bill remains to be seen.

If however, the loudly pronounced grape vine is correct and what is being contemplated is some kind of politically opportunistic strategy in which the government would be given its support by certain members of the opposition, alternative or otherwise and minority party leaders, it will be the most monumental hypocrisy of our leaders that we will again be reluctantly compelled to be witness to. Not surprisingly that is, of course.

Eradicate mental pollution!Police Problems

The global realization that there should be a growing awareness of the erosion of the natural ecosystem and their causes and consequences, is very encouraging.

This has led to a global consensus and political commitment at the highest level ( U.N.O.) on development and environment co-operation. Stress factors that cause environmental pollution have been studied for the purpose of sustainable development.

Sri Lankan authorities are doing their part in the direction of environment conservation.

Now, what about the mental pollution of the human species in Sri Lanka? Just as the country's natural resources such as soils, minerals, water and air; and the eco systems such as forests, grasslands, wetland mangroves, swamps and coral reefs are subject to pollution under too much stress, the human mind, especially of the youth (our most precious political resource) under too much stress in its own environment, is subject to immense pollution.

The resource that sustains a harmonious environment for a balanced mind is wisdom cultivated through virtuous principles such as love, compassion, tolerance, reconciliation etc. and the stress factors that cause mental pollution are evil attitudes such as anger, jealousy, greed, intolerance, hatred etc. leading to violence amongst fellow human beings.

It is a sad situation in this country today, to find provocative utterances by political leaders adding to the already prevailing stress situation that is causing immense mental pollution. Not that political leaders have not spoken of the importance of the aforesaid virtues, but sadly the statements on virtues are as if only for the record but not made with the same zeal as the controversial and provocative statements.

Sections of the media are only waiting to pounce on such controversial statements giving them much more publicity, drawing others breathing fire into the fray, and themselves getting embroiled in a war of words adding more fuel to the mental pollution. Disagreements and corrections surely can be expressed more politely than we read and hear these days?

It is not my intention here to give a sermon on spiritual matters.

But I feel a duty to forewarn all concerned of the dire consequences especially from a frustrated generation of youth, our future leaders, who are being exploited to death, and hence most affected in a selfish struggle for power by elders who should know better.

I forewarn of an impending inferno that will engulf the whole country. An awareness campaign in regard to the mental pollution I speak of , will not be in vain.

More queries and confusion on presidential term

A response to h.L de Silva's observations

By Rohan Edrisinha , Faculty of Law, University of Colombo

I am happy that President's Counsel H.L. de Silva in his response to my article of January 2, has agreed with my argument that President Kumaratunga's second term should have begun on November 12, 2000 and not on December 22, 1999.

While we therefore agree on the main constitutional issue involved, we disagree on the implications of the President taking her oath before the Chief Justice on December 22, 1999. Mr. de Silva suggests that the oath was administered out of an abundance of caution as the relevant constitutional provisions were ambiguous, and that my criticisms of the Government's legal advisors, the Presidential Secretariat and the Chief Justice were "unwarranted."

I maintain that the issues involved do justify the criticism I made of these persons as several serious questions which I shall address below arise.

1. Is the president in her first term or second term?

I believe that Mr. de Silva has failed to appreciate the gravity of the violation or error committed on December 22, 1999. He argues that even though the President took her oath of office a second time, she remains in her first term of office. The whole country assumes that President Kumaratunga is at present in her second term of office as she has taken her second oath of office before Chief Justice Sarath Silva. Article 32 (1) of the Constitution which Mr. de Silva did not refer to provides that the person elected or succeeding to the office of President shall assume office upon taking and subscribing the oath or making and subscribing the affirmation, set out in the Fourth Schedule, before the Chief Justice or any other Judge of the Supreme Court.

Article 32 (2) states that upon such assumption of office, the President shall cease to hold any other office created or recognised by the Constitution.

It can convincingly be argued that the President, at present, is in her second term. At the very least, the position is ambiguous and not as straightforward as Mr. de Silva suggests. Surely taking an oath of office before the Chief Justice in accordance with a specific constitutional provision must have some impact or effect? If Mr. de Silva's position is to be accepted the President will have to take another oath after November 12, 2000.

2. The consequences of the answer are far reaching

There are far-reaching consequences that could precipitate a constitutional and political crisis depending on whether the President is considered to be in her first or second term between December 22, 1999 and November 12, 2000.

If the President continues in her first term during this period as argued by Mr. de Silva, then if tragedy were to strike and the President were to die in office, Article 31 (4) (a) will apply and a fresh Presidential election will have to be held.

If the constitutional position is that the President began her second term on December 22, 1999, and she were to vacate office, then Article 40 (1) (a) of the Constitution shall apply and Parliament shall elect one of its members to be President for the unexpired period of the term of office of the President vacating office. Therefore the President elected by Parliament shall hold office until December 22, 2005. There will be no need for a Presidential election until 2005.

While one obviously hopes that neither of these scenarios actually occurs, the Constitution does provide for untoward events of this nature. The question of which term the President is serving at the time is crucial as it has tremendous political and constitutional consequences.

3. The abundance of caution argument is unconvincing

Mr. de Silva has been charitable and generous in his possible explanation for the irregular or unconstitutional swearing in of the President on December 22, 1999. He states that the ambiguity or doubt in the constitutional provisions prompted the taking of the oath out of an abundance of caution.

I fail to see any such ambiguity or doubt. Mr. de Silva agrees that the President's term should begin/should have begun on 12 November 2000. If he states that Article 31 (3A) (d)(i) is clear then, a fortiori, Article 38 (1) (d) is clear.

Article 38(1) (d) reads as follows:

The office of President shall become vacant...if the person elected as President wilfully fails to assume office within two weeks from the date of commencement of his term of office.

The date of commencement of his term of office is November 12, 2000. I fail to see how the President's legal advisors could have thought that the President may be required to have taken her oath within two weeks of December 22, 1999.

Mr. de Silva also points out that the decision was made in the context of a "near death experience." A careful reading of my article indicates that at no point did I criticise the President for the violation of the Constitution. I do not expect a President even in normal circumstances to be a constitutional expert. The responsibility for the error or violation (whatever term one prefers), lies elsewhere. As far as I know, the President's legal advisors, officials in the Presidential Secretariat and the Chief Justice, who administered the oath, did not face a near death experience at the time. Furthermore as outlined above, the mistake or violation is more serious than Mr. de Silva suggests. It is for this reason that I believe that my criticism of these persons is, indeed, warranted and justified.

Peace women call for end to hate speech

The Women's Coalition for Peace in a plea to the government, the opposition, the LTTE and the media has called for an end to hate speech. The Coalition in a statement says:

As the violence escalated in December during the presidential election, and reached its high point in the simultaneous attacks at the election rallies of the main political parties, there has been an escalation of hate speech in the national media.

A number of people including President Kumaratunga were injured and Lucky Algama killed by human bombs and rumour proliferated in the media. In the new millennium the violence and insecurity continue unabated in the form of other murders and attempted attacks in Colombo, including the killing of Kumar Ponnambalam.

The Women's Coalition for Peace, comprising women of all classes, political, ethnic and religious communities, classes, for moderate speech and action in this context of heightened fear and insecurity. Incitement to violence through hate speech in any society breeds trauma, mistrust, insecurity and often an intolerance of people of a different religion, ethnicity or political ideology.Hence conspiracy theories naming prominent persons and "enemies" need to be avoided and due process of investigation followed where relevant.

The rhetoric of conspiracy theory merely masks the absence of due process of investigation and justice. It is also injurious to peace. In a context of heightened anxiety and insecurity amongst all communities in the country, the need for measured speech and thoughtful action by all segments of the media cannot be over emphasized. In this context we congratulate the president for calling for the public to refrain from vengeance attacks on minorities and the opposition soon after she was injured.

Most disturbingly, amidst the various conspiracy theories propounded to explain escalating violence in the country, there has been a return of anti-minority rhetoric in the media, both private and state owned. The pogrom/riots of July 1983 when anti-minority rhetoric proliferated in the media should be a warning and a reminder to us all.

The Coalition notes that the government controlled press, which has the institution of state and its legitimacy behind it, has an obligation to set a tone of moderation for the rest of the media. Likewise the private media have an obligation to desist from hate speech against minority communities. Innuendo, rumours and character assassination of persons suspected of disturbing the peace are not conducive to an atmosphere of order and security. Free media should not be a guise for hate speech and ethnic labelling and stereotyping are to be avoided at all times.

The climate of uncertainty and insecurity generated by violence, death, curfews, house-to-house search operations and the general sense of insecurity in Colombo in the past month is mirrored more dramatically in other parts of this war-torn country.

In the north, fierce fighting continues in and around Elephant Pass, with large numbers of civilians being displaced yet again in the Jaffna peninsula. In the east, the deteriorating security situation has meant that at least one pregnant mother with child, who sought permission to cross a security checkpoint to get to hospital at the time of delivery, died because she was asked to wait till morning.

We in heavily fortified Colombo only become aware of the enormous toll this conflict takes from the poor and marginalised of all communities, Sinhala, Tamil, and Muslim when the censorship is lifted or when the LTTE suicide bomber strikes in Colombo.

The Coalition notes that women have suffered disproportionately due to the generalized violence and the militarization of Sri Lankan society. Moreover the disturbing trend of the armed conflict in Sri Lanka to induct women into violence and take the lives of women, who traditionally have not participated in political violence needs to be arrested.

We call upon the LTTE to eschew the practice of using women or men as suicide bombers and terrorizing society. Similarly, the military and paramilitaries must desist from targeting violence at women.

Throughout the armed conflict and escalating political violence women have been subject to rape and other forms of gender specific sexual abuse and harassment, particularly at checkpoints.

We especially note the alleged gang rape and murder of Sarathambal in Jaffna and call for immediate and stern action against the perpetrators.

We also note the attack in Moneragala on the house of actress, Anoja Weerasinghe and the destruction of her 22-year career archive and call for a speedy investigation of the perpetratrators in this politically motivated attack.

Finally, a large number of women are being detained in police stations. We call for speedy investigation and release when relevant.

In the context of escalating violence and insecurity the Women's Coalition reiterates its call for:

1. The People's Alliance Government, the Opposition and the LTTE to rise above using the conflict and the war for political gain, and to build an atmosphere of co-operation towards collective problem solving, and to restore civility to national politics.

2. The government, the opposition and LTTE to arrive at the consensus on constitutional reforms aimed at satisfying the democratic and peaceful aspiration of all Sri Lankans.

3. The Government and the LTTE to take steps to de-escalate the military conflict and take steps to resume peace talks.

4. The Government, the Opposition and the LTTE to work together to seek third party facilitation to promote negotiations between the parties and all other political groups and interests concerned with the conflict.

5. All parties in the conflict to take into consideration the immense loss of life, livelihood, displacement and insecurity of the Tamil, Sinhala and Muslim communities in the country and the aspiration for peace expressed by all people living in the conflict areas, and to begin a process towards the re-commencement of peace talks.

Natamies win the day

By Feizal Samath

Natamies or coolies - who have struggled through the ages carrying heavy loads on their shoulders in the streets and alleys of Colombo's busy Pettah district - finally had their say last week.

Traders agreed - after negotiations - to their demands for an increase in the rates paid for loading and unloading goods in shops and lorries down Old Moor Street.

After a marathon four-hour meeting on Friday between traders and natamies, it was decided that the street hauliers - who have defied modernization and continue to ply their trade with their bare hands - would be given an increase in these rates of between one rupee and 1.50 rupees per bag. The natamies had been earlier paid rates ranging from one rupee for loading or unloading a 10-kilo bag to Rs.3.50 for loading or unloading a 50-kilo bag.

Palaniyandy Sunderam, president of the Old Moor Street Traders' Association who brought the two sides together to sort out the issue, said traders had said they were unable to pay demands of three or four rupees for heavier bags because business was down and activity was slow. "Finally the natamies agreed to an increase in rates ranging from one rupee to Rs.1.50 ," he said.

Last week, these workers - about 1,000 of them working down Old Moor Street - went on strike, demanding better rates for their hard labour. The effect was stunning, for rarely have these people - many of whom are Tamils of Indian origin raised and born in tea estates in the central region - rebelled against their "masters". They have always been content with the meagre money they make after a long day and rarely complained until things got difficult this time.

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