18th Amendment, Colombo, Constitutional Reform, Peace and Conflict, Politics and Governance, Post-War

THE JUDGMENT OF HISTORY

All MPs as well as Supreme Court judges of Sri Lanka should watch Stanley Kramer’s 1961 film ‘Judgment at Nuremberg’ before the vote on the 18th Amendment. It tells the story of the trial of four German judges guilty of complicity with the Nazi regime. One of them, Ernst Janning, was once a champion of justice, yet played a major role in turning the German legal system into an instrument of Nazism. How could these eminent and apparently decent men have been complicit in the ghastly atrocities committed by the Nazi regime? The mystery is solved only when Janning makes a statement, showing how actions which at first seemed trivial and innocuous – like swearing an oath of allegiance to the Nazis – lead to deeper and deeper entanglement with the regime. Even when the full horror of Hitler’s agenda became clear to them, they justified staying at their posts with the argument that they were trying to prevent matters from getting even worse. Of course, that turned out to be a delusion. What really could have prevented matters from getting worse would have been clear opposition to the fascist transformation of the state and society, but that was the course they did not take.

An alternative perspective on the Nazi period is offered in Alexander Kluge’s 1979 film ‘Die Patriotin’ (The Female Patriot), which follows Gabi Teichert, a history teacher, as she explores the reasons why she is so dissatisfied with the way German history is taught. One of the conclusions she comes to is that it is the history itself that is unsatisfactory, and that everyone, no matter how humble, is involved in making history by his or her acts of commission and ommission. While Kramer offers an American view of how relatively powerful Germans contributed to Nazism by going along with it, Kluge shows how ordinary people could also have made a difference by organising against the Nazi regime before it became so powerful that opposition was almost certain to result in death.

These films are relevant because they remind us that we are making history all the time, by what we do and what we fail to do. In Sri Lanka today we are faced with a situation where our democratic rights, which have systematically been eroded over the past five years, are facing an unprecedented onslaught. One might have thought that it would be impossible to deliver a bigger blow to democracy than the 1978 Constitution, but the 18th Amendment does just that. By simultaneously killing the 17th Amendment and removing the two-term limit, it creates a situation where the Executive President has absolute power, including the power to decide the outcome of elections: after all, there are elections in Zimbabwe, but anyone who thinks they are free and fair has to be insane!

The president becomes a dictator the moment the 18th Amendment is passed. And all those who contributed to making our country a dictatorship will be judged by history, even if there is no equivalent of the Nuremberg trials to hold them to account. The hollowness of all rationalisations – that going along with the regime prevents matters from getting worse or allows MPs to help their constituents, for example – will be exposed. Nor should representatives of minority communities think that they are absolved of responsibility for the oppression, misery and corruption that will follow.

There are no excuses for collusion with totalitarianism.

  • Sonal

    Let me get this straight – you’re comparing supporting the 18th amendment with supporting the Nazis?

    Is there such a thing as Sri Lankan “intelligentsia” ?

    “The president becomes a dictator the moment the 18th Amendment is passed.”

    Erm, how so? Because you say so?

    He still has to face elections.

  • Thivya

    Realistically both the 17th Amendment and the 18th Amendment are faulty. 18th Amendment tries to concentrate power to politicians whereas 17th Amendment concentrates power away from politicians into a few individuals. We, as people, are happy when politicians get less. But politicians on the other hand are not happy with that. This has become a contest of power between politicians and others. Hold on a second. Others don’t always mean the people. 17th Amendment does not empower people. It empowers a group of individuals who are not elected to their roles by the people, which is very dangerous. There are no independent people in Sri Lanka who will take up these roles. They are appointed by politicians and will work to please the politicians.

    In my view, Sri Lanka should have a very basic constitution that ensures equal rights to all individuals and abolish the executive presidency. Election system should change to the old system of first past the post after adjusting for new population numbers.

    Anything more comes with strings attached that takes us back to the power contest between politicians, “independent” persons appointed by politicians and the people. We cannot accept the good and reject the rotten because both come together. The simplest constitution is the best but we have to learn to live with it.
    1947 Constitution had no checks and balances to stop the Official Language Act, the Citizenship Act, etc. So we wanted to bring some checks and balances. What happened? Politicians gave us some checks and balances at the expense of higher power to politicians at the same time. There will never be politicians who will give people more power, concessions and political solutions without benefitting themselves first. This is the unpleasant reality. You may not agree with me but this remains the reality. What eventually happens is most Sri Lankans go with it.

    We have a choice. Should we want to complicate the Constitution to include various concessions or should we not. If we want it comes at a cost. Now we have a very complicated constitution. We have to simplify it. We have to take a cut politicians have to take a cut. Otherwise nothing is going to change.

  • Heshan

    It’s always good to put things into context. Sri Lankans actually lost most of their democratic rights a long time ago. At that time, though, it was in the name of “national security” and most were content to look away. After all, the primary victims were Tamils. The loss of electoral franchise, however, is a trickier matter. The ramifications are on a national scale, and transcend any consideration of ethnicity. One simply cannot justify such a phenomenon – even the “national security” clamor of yesteryear has sunk far below the horizon of excuses. Unfortunately, there is no easy remedy, if the broken promises of incumbents past and present to abolish the Executive Presidency is any indication – being that this is one step above even the latter.

  • Sued O. Nym

    The person who asked ‘Are you comparing Sri Lanka with Nazi Germany?’ seems determined not to hear what you are saying. You note that “Kluge shows how ordinary people could also have made a difference by organising against the Nazi regime before it became so powerful that opposition was almost certain to result in death.”

    It is worth observing that opposition to the Rajapakse regime has already resulted in the death of a newspaper editor. And do you really suppose that, if he were so minded, G.L. Peiris would be free to oppose any of this and live to tell the tale? The weakness of some of his arguments suggests a man who knows no-one will answer him back, stand up to him, and demonstrate his claims to be false. But they also suggest in his heart of hearts he knows better.

    For example, G.L. says that the abolition of terms limits will “strengthen the franchise” by permitting the people to choose to elect the President for more than two terms. It increases the voters’ range of choices, and thus “strengthens the franchise.”

    There are only two ways in which this change can be seen to “strengthen the franchise.” The first is to take “the franchise” to mean the Rajapakse franchise; of course it strengthens that. But if the value of the vote is what G.L. is referring to, then the abolition of term limits strengthens it only if one ignores myriad countervailing factors which, taken together, are known as reality. When we consider these even cursorily, it is immediately obvious that G.L’s claim is the opposite of the truth. The truth is that the abolition of term limits can be, and very often is, a necessary step toward dictatorship. Of course it need not be. One can imagine a country in which war is a stranger, violence very rare, and the incumbent leader universally adored so that public pressure to abolish term limits causes it to be done. And one can imagine a very different country in which a war has been used to restrict freedoms, quash opposition, and control the media; where the state of emergency remains in effect long after the war’s end; where the elected President has put his brothers in senior cabinet offices and rapidly ensured that his family, elected and unelected, controls everything that matters. In such a context, how exactly does the abolition of term limits “strengthen the franchise”?

    Similarly, G.L’s objection to the U.N. commission looking into events that ended the war in Sri Lanka, that “It infringes on Sri Lanka’s sovereignty,” is fallacious. If there is any issue involving sovereignty, it arises only when the Sri Lankan government objects to the creation of the commission and refuses to co-operate. That is, concerns about sovereignty, if there be any, cannot be the reason to oppose the commission because they arise, if at all, from that opposition. In any case, if a state’s sovereignty can be a bar to pursuing serious breaches of international law, then that law would be singularly ineffective and war crimes would often go unpunished.

  • indonicus

    Sonal said

    “He still has to face elections.”

    Awwwwww! That’s sooooo important isn’t it??

  • Sonal

    Yes it is indonicus. Which means he can be voted out. That’s important is it not?

    Another 24 hours and the 18th amendment will be a reality and all this crying will be in vain!

  • It is universally understood that a person who offends needs and seeks forgiveness. An apology therefore comes from the offender and not from the offended or the victim, if serious reconciliation is desired.

    For the past 60 dreadful years, the Sinhalese wronged against the Tamils, repeatedly and brutally. Therefore, it is only the Sinhalese who must apologise for their wrongs. But why the Tamils?

    This pertinent question should have been put forward to Jayantha Dhanapala by any serious person sitting on “Lessons Learnt and Reconciliation Commission(LLRC). Why was it not done? Stupidity or hypocricy?

    Further, most African countries that were repressed, resorted to armed rebellion and gained their independence, after attempts for peaceful resolutions failed. Even the UN ratified the indpendence of those countries. ANC, ZANU, MPLA, SWAPO, EPLF and FRELIMO were such armed groups that have become political parties, governing their countries now.

    Therefore, Tamils taking up arms against state terrorist and genocidal regimes in Sri Lanka(SL), to gain independence for Tamil Eelam(TE), after the people democratically mandated it in 1977 and negotiations with SL failed, is not wrong but is absolutely right according to the “morality” of the UN.

    Rightly therefore, the Supreme Court of New Zealand decided that LTTE was a political organisation and not “terrorists”. But the GOSL which signed even a CFA recognising the “de facto state” of TE and held talks with LTTE, similar to the present Israeli-Palestinian talks, defiantly propagated falsely LTTE as a sole terrorist organisation and Dhanapala spearheaded that rut.

    Obviously, the covert purpose of the GOSL was to destroy the freedom movement of TE and the extermination of Tamils, inspite of being a signatory to all the covenants on Human Rights and Humanitarian Law.

    You do not “sign justice” you do justice !!

    SL is a war criminal and genocidal state running away from the UN enquiry, yet Dhanapala stated in the LLRC that this prodigal SL would contribute to the UN with its experience to fight “terrorism” and went unchallenged by any one in LLRC.

    Undoubtedly, the LLRC is created neither to learn lessons nor to reconcile but to make Tamils accept and tolerate the crime and cruelty of the Sinhalese and live with repression forever.

  • Ravana

    Not only the people directly responsible but all their decedents’ should be recorded in our history.

    We have to believe that RIGHT will prevail and when it does all this crying WILL NOT BE IN VAIN !

  • indonicus

    Sonal said,

    Yes it is indonicus. Which means he can be voted out. That’s important is it not?Another 24 hours and the 18th amendment will be a reality and all this crying will be in vain

    Technically yes he can be voted out. But in reality it will be impossible, given the power that will be concentrated in the president’s hand after these amendments and condsidering that elections will be held while the president is still in power. We all saw how the last presidential election was held, the blatant violation of all election laws. Now it will be worse.

    Not only crying, a lot of other things will be in vain after today. That doesn’t mean that people should wait till the next presidential election to show their opposition to what this government is doing.

    Fascsim doesn’t establish itself overnight. It takes over gradually and in its early stages it wears the mask of populism and the badge of legitimacy, usually given by peoople who think they can get rid of the regime at the next elections and/or there is nothing that can be done about it.

  • Rohini Hensman

    Indonicus is absolutely right: elections are meaningless if the president has the power to ensure that they will not be free and fair. That has been the situation in Zimbabwe, and is now the situation in Sri Lanka,. It was people like Sonal, neither more nor less evil, who attended Hitler’s rallies, cheered him on, and asked, “what’s wrong with wanting Germany to be a strong nation?’

  • wijayapala

    Question: how are things worse today than they were during Chandrika’s first term, when there was no 17th Amendment?

  • “The timeline… reflects both the genesis of the heinous 18th Amendment and also the occasions mainstream press reported that the President attended / “visited” Parliament.

    It was no easy task to compile this. Only a handful ordinary citizens would have the expertise to search for this information online, or elsewhere. There is no easy record retrieval of the President’s attendance in Parliament on its official website. But what is immediately obvious when the scattered media reports are taken as a whole is that the 18th Amendment has in no way at all contributed to a more accountable Executive. ”

    Excerpt from ‘Months after the 18th Amendment: Is the Executive really more accountable to Parliament?’, http://groundviews.org/2011/06/11/months-after-the-18th-amendment-is-the-executive-really-more-accountable-to-parliament/