Sarath Fonseka of Sri Lanka and Sam Rainsy of Cambodia

 “Cambodia and Sri Lanka have reached the same point of rejecting the liberal democratic foundations of their countries. The jailing of the opposition leaders of both countries is symbolic of the commonality of the political strategies and ideologies.”

What Sarath Fonseka and Sam Rainsy have in common is that they are the most popular opposition leaders in their countries and that they have been jailed for that very reason. Political popularity is treated as a serious crime in both countries, where the ruling parties are aspiring to create one party rule.

Here are some similarities between the political styles followed by the ruling regimes in both countries:

The ruling regimes enjoy more than 2/3 majority in their parliaments. Hun Sen in fact has 90 seats out of 123 in the parliament, in which Sam Rainsy’s party has 26 seats. When the first election was held after the Pol Pot period May 1993, the opposition party won the election and the party of the present Prime Minister Hun Sen lost despite of their having the territorial control of the largest part of Cambodia. However, through subsequent elections, Hun Sen’s party has gradually gained control of power and the Funcinpec party, which was the party created by the former king, Norodom Sihaneuk. From having the majority, the Funcinpec party, was reduced to two seats in 2008. The next opponent to the ruling party was Sam Rainsy and now he is being jailed on flimsy charges. The ruling regime controls the courts and is able to get whatever verdicts it wants on political matters. Continue reading

A FOLLY BEYOND HUMAN IMAGINATION

There is hardly any point in making any comment on these “amendments”, except to record a complete disassociation and express moral disgust.

What is proposed is not “ amendments”, but complete ABOLITION of what ever that is left of Constitutionalism, in a liberal democracy. Lord Donamore must the turning in his grave, unable even to graph what happened to what he described as an experiment when he proposal the universal franchise for Sri Lanka.

Those who have spent many decades hoping to end the colossal catastrophe called by 1978 constitution are now forced to recognize some thing much worse in magnitude of the evil. Those who campaigned for the reinstatement of the 17 amendment has to now to see, how that amendment has been reduced to a joke.
Continue reading

The last debate on the constitution

The way out is to create a smokescreen. To have lots of quarrels going on and when you have the monopoly of the media it is easy to do that. The very style of the media in recent years has changed in order to trivialize everything. Trivialization is an essential component of creating quarrels and quarrels are quite an easy way of trivializing any issue.

Sri Lanka has turned out to be a land of many quarrels but no debates. Often quarrels turns into violence, sometimes murder and even worst. And the violence itself leads to new quarrels and the circle goes on. Sadly however, hardly anything ever turns into a debate. Debate has become a lost art and no one even seems to remember what it is.

Take for example the question of the constitution. Among the debates of any nation, those on the constitutions would receive the highest place. Not so in Sri Lanka. No one any longer debates the constitution.

The last debate on the constitution was on the 17 amendment. There were many who argued for it and they did so long a long time. Interestingly, no one argued against it. The government’s argument was that it was good piece of legislation but that there were some defects in it. To cure the defect, the government killed the amendment itself; very much like cutting off the arm to save a finger.

In fact, in that last debate on the constitution, the government preferred to bluff rather than to debate. The real problem of the 17th Amendment was that it tried to impose limitations on the power of executive president. The limitations were on his powers to appoint whomever he wished to important positions in the civil service. The government did not agree with having any such limitations and did not wish to debate it. The government made the decision unilaterally and merely created some pretexts for doing do so. Continue reading

Legal Profession and the Protection of Individual Liberties

 A few decades ago, Bunty De Soysa was one of Sri Lanka’s leading criminal lawyers; at one point, he was also president of the country’s Bar Association.In one case, he represented a group of young leftist radicals in court who were charged with offences relating to their political activities. During the course of the consultations for this case, the young radicals teased their lawyer, saying: “You lawyers only do these things for the money.” Mr. Bunty Soysa retorted with “one day, when you don’t have lawyers, then you will understand their value.”

Lawyers still exist in Sri Lanka, however, their power and influence have greatly diminished. Under those circumstances, people are beginning to understand what it means to be without vigorous and fearless legal representation. Today, the Sri Lankan public is forced to reflect on how the capacity of lawyers to protect the individual liberties of their clients has waned, and are beginning to examine ways in which they can fight back to regain this essential service. Continue reading

Testing sovereignty through a genuine election

 The election for the Executive President will take place on the 26th January. This election will test the sovereignty of the people as enshrined in the Constitution and the possibility of genuine election in Sri Lanka as required by the International Covenant on Civil and Political Rights.

Article 25 of the International Covenant on Civil and Political Rights provides the right of the people to vote to be election at genuine and periodic elections which will be by universal and equal suffrage and shall be held by secret ballot guaranteeing free expression of the will of the electors.

In terms of Article 3 in the Constitution of the Democratic Socialist Republic of Sri Lanka, “In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise.” Voting for the formation of a government needs to be genuine. Genuineness would be that the people would have the complete freedom to exercise their franchise without fear and thereby to express their political will as they wish. An election that is not genuine is not an election at all. Continue reading

The crisis of the Electoral Commission

“Re-establishment of the authority of public institutions, including that of the election commissioner, and the regaining of the constitutional process within a system that effectively recognizes the separation of powers principles, would require understanding of the recent problems in a different manner.”

The groups engaged in monitoring into the election have reported about flagrant violations of election laws, use of state assets illegally and the use of violence, noting that in Sri Lanka today the collapse of the electoral system on an unprecedented scale is taking place. The election commissioners own comments about the absence of cooperation between him and the government have also been very widely reported.

None of these observations would come as a surprise to anyone who has been an observer of the constitutional process in Sri Lanka. The collapse of public institutions has taken place over a long period of time and the whole debate on the 17th amendment to the constitution is merely a reflection of the extent of this collapse. The source of the collapse is the very nature of the constitutional arrangement in the 1978 constitution, which has placed all power in the hands of a single person who holds the office of the Executive President.

The collapse of all public institutions, including the electoral process, is the necessary result of the political process initiated through the introduction of the executive presidential system. The existence of the executive presidential system in Sri Lanka and any form of democratic government, or even a rational government, are incompatible. Continue reading

Discussions on 1978 Constitution at Sirasa TV

The Sirasa Television Service has conducted a series of discussions on the 1978 Constitution. This series has brought to focus some of the fundamental defects of this Constitution. In fact, most of the themes discussed are not new. In some groups there have been constant reflections on the defects of the 1978 Constitution and there is some literature on this issue. However, the importance of the discussion on Sirasa TV is that it is being brought to the notice of the nation and therefore the discussion on a large scale is possible on this very important issue.

In these discussions the participants were the former chief justice Sarath Nanda Silva and Uditha Igalahawa, senior consultant to the Ministry of Constitutional Affairs. They have given clarification on some of the most basic issues relating to this constitution and some background about the evolution of its provisions. Continue reading

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