Give Full Force and Effect to the Separation of Powers & Unity in Diversity

Photo courtesy Sri Lanka Guardian

On the 19th day of May 2009, with the end of the military conflict that had divided the country for over thirty years, Sri Lanka entered a new era.

The next step that Sri Lanka has to face is also extremely sensitive due to nationalistic feelings of the various ethnic groups. A durable peace can be built only if all these groups that go to form the Sri Lankan society feel that they are a part of the same nation.

Building a nation had always been somehow a difficult task in Sri Lanka. Susil Sirivardana in his article titled “Paradigms and Foundations in Nation Building: A Way of Understanding” underlines that Sri Lankan leaderships believe in illusions that historically we were already a nation and hence, nation building as such, was not the central challenge of national politics. The articles mentioned in this paper appear in the book “Nation Building:Priorities for Sustainability and Inclusivity” edited by Gnana Moonesinghe.

The post-conflict situation is the opportunity to introspect the mistakes done in the past and to undertake profound reforms. Indeed, today’s context offers new perspectives and the people of Sri Lanka who await impatiently to live in a peaceful nation seem to be ready to accept changes.

What do we want?

When we consider the nation building process of countries such as France, there were foundations that had contributed towards implanting the idea of a “nation”. Among such foundations, we can for instance underline one’s respect for the sovereignty of the people and the acknowledgement of unity in diversity arising from religious and ethnic differences.
As regard to the sovereignty of the people, it is imperative that the separation of powers that is Legislative, Executive and Judicial should not be confined to the Constitution only; it must be practiced by the leadership so that the power rests always with the people in a democratic set up.

This separation of powers was theorized by Montesquieu in his book “The Spirits of the Laws“. This model of governance structures the powers of a nation among the three branches, each branch having separate and independent powers in order to prevent the concentration of powers within one branch or one person. Therefore, the people can elect their leaders without any fear or duress. As we know, France built its foundations of good governance on those lines.

In Sri Lanka, the 1978 Constitution provides for the separation of powers to which it is necessary to give full force and effect, particularly in the context of a peace building process. This would contribute towards gaining the trust of all Sri Lankan people. It is well-known that until 1977, a Sri Lankan voter had the power to change the government and as a result the country was governed alternatively by the two main parties. It was known that at one time, Sri Lanka was the envy of countries such as Singapore.

As regard to the unity in diversity, Sri Lankans of different religious background have coexisted side by side in harmony for many centuries, enjoying the core values. One could wonder whether article 9 of the 1978 Constitution which gives special protection to Buddhism had interfered with that stability. Since religious harmony is a corner-stone for nation building, in future governance of the country, all religions and free thinkers must be given equal recognition. Much hard feeling can be avoided as mentioned by A.C. Visvalingam in his article titled “Resolution of Majority and Minority Concerns” by minimizing “references to race, religion and other divisive descriptions in all laws and official work as far as practically possible.” The aim being that Sri Lankan people are made to feel that they are first Sri Lankan and that their ethnic and religious specificities come thereafter.

The Diaspora Youth also needs to bear in mind that the economic development is also an important factor in nation building process. As mentioned by Marchal Fernando in his article titled “Sri Lankan Economy in Nation Building”, it is noteworthy that economic development helps to bring people together as it generates wealth “to satisfy the needs and aspirations of the citizens, irrespective of ethnicity, religion, or any other differentiation in society”.

How to raise awareness on such values?

Building bridges between Sri Lanka and France could contribute to such economic development. Therefore, the Diaspora Youth could support and encourage young Sri Lankan entrepreneurs in their activities for instance by awarding the best innovative initiatives or helping Sri Lankan entrepreneurs to penetrate the developed countries’ markets.

The Diaspora Youth had already started to write in papers about these subjects. We must continue to do so as media is an important change agent in public attitudes.

###

Chathurika Rajapaksha is an attorney-at-law (Paris bar). She holds a Master from Assas University (Paris) and an LLM from the London Metropolitan University (UK).

She participated in the French-Sri Lankan Diaspora Youth Workshop “Post-War Reconciliation Dialogue for a Sustainable Peace”, which took place in Paris, on October 27th, 2012, as a panelist on the theme “The role of the Diaspora youth in Sri Lanka’s peace building process”.

The event was organized by What’s Next!, an independent forum comprising of post-graduates and young professionals of Sri Lankan origin residing in France. What’s Next! seeks to promote a sustainable peace in Sri Lanka through intellectual exchange and multicultural dialogue.

  • silva

    Chathurika thinks:
    ”the economic development is also an important factor in nation building process. …. Building bridges between Sri Lanka and France could contribute to such economic development.”:

    Ground reality:
    ‘’The macro-economic decisions that the government makes in terms of developments in the north are not made with the participation of the people or their representatives. This is a major problem and cause for resentment. There is often no consultation with the people. Where there is consultation, the decisions made can benefit the people even more, and be more fully accepted by the people. An example would be the Presidential Task Force for Northern Development. This governmental regulatory body is located in Colombo and is virtually all Sinhalese in its ethnic composition, even though most of the people in the north are Tamil. Several of its members are retired military officers.

    Those who seek to do developmental work in the north point out that they have to travel all the way to Colombo, sometimes on several occasions, to get the necessary approval for work to be done in the north. Sometimes those they deal with in the Presidential Task Force are ignorant of the ground situation in the specific locality in which the work is going to be done. Sometimes when the reality of the situation is explained to them, they are prepared to change their minds. But it takes a lot of meetings with them, and lot of travel to Colombo, to make this happen. The irony of these situations is that the government is not providing the money for the work to be done. This money comes from international donors for the rehabilitation of the people of the north. But decision makers in Colombo decide what should be done without reference to the wishes of the people of the area’’- Dispelling perceptions of uncaring government in the North, National Peace Council of Sri Lanka, 25 June 2012

  • Sie.Kathieravealu

    A good article stressing much on the needs of he day.

    As I read the article “Give Full Force and Effect to the Separation of Powers & Unity in Diversity” I got the impression that as if the article was written by “Groundviews”.

    But then at the end of the article something like a footnote says that
    “Chathurika Rajapaksha is an attorney-at-law (Paris bar). She holds a Master from Assas University (Paris) and an LLM from the London Metropolitan University (UK).

    She participated in the French-Sri Lankan Diaspora Youth Workshop “Post-War Reconciliation Dialogue for a Sustainable Peace”, which took place in Paris, on October 27th, 2012, as a panelist on the theme “The role of the Diaspora youth in Sri Lanka’s peace building process”.

    The event was organized by What’s Next!, an independent forum comprising of post-graduates and young professionals of Sri Lankan origin residing in France. What’s Next! seeks to promote a sustainable peace in Sri Lanka through intellectual exchange and multicultural dialogue.”

    I am a little confused as to why the “footnote” says about Chathurika Rajapaksha. So,is she the writer of the article?

    What ever it may be, I give below some of my views on the subject.

    A UNIQUE concept that moves towards a meaningful and just power-sharing arrangement (not devolution) based on true democracy – a large number of people participating in the governance of the country based on equality, equity – is a great deviation from the usual thinking of the meaning of the word “sharing of power” is given below for the kind perusal and comments of concerned people.
    The best political solution or system of governance to address the problems faced by various sections of the society – particularly the poor, the politically weak and the various categories of “minorities” who do not carry any “political weight” – would be to DILUTE the powers of all elected representatives of the people by separating the various powers usurped in by the present Parliament and by horizontally empowering different sets of people’s representatives elected on different area basis to administer the different sets of the separated powers at different locations.
    It should NOT be “devolution” where ONE person or one set of persons, would still be holding the entire political power BUT it must be the sharing of power HORIZONTALLY where each and every set of representatives would be in the SAME LEVEL as equals and in par and NOT VERTICALLY, where one set of representatives would be above (more powerful than) the other, which is the normal adopted practice when talking of devolution, in this power-hungry world. It is because “devolution of power” has been evolved “vertically”, we have all the trouble in this power-hungry world. So, for sustainable peace it should not be the present form of “devolution of power” but “dilution of powers” or “meaningful sharing of powers” in such a way that no single person or single set of people’s representatives be “superior” to another.
    This system would help to eradicate injustice, discrimination, corruption and oppression – the four pillars of an evil society – and help to establish the “Rule of Law” and “Rule by ALL” for sustainable peace, tranquility and prosperity and a pleasant harmonious living with dignity and respect for all the inhabitants in the country. Since all political and other powers flow from the sovereignty of the people, it is proposed herein that these powers be not given to any ONE set of representatives but distributed among different sets of people’s representatives (groups) elected on different area basis (village and villages grouped) to perform the different, defined and distinct functions of one and the same institution – the Parliament – like the organs of our body – heart, lungs, kidneys, eyes, nose, ear etc. – performing different and distinct functions to enable us to sustain normal life.
    In these suggestions the powers of Parliament have been so separated and distributed among different sets of people’s representatives in different areas so as to dilute the powers of an individual representative or that of a set of representatives in any area. (Dilution is better than Devolution)

    Election and Composition: Every area would be a multi-member electorate electing a minimum of two members. Members of the various Councils would be elected from among those residing within that area on “first passed the post” basis subject to gender and age group conditions being fulfilled and where necessary and possible trade, political ideologies and ethnicity being considered. The number of members of any one gender or age group shall be a minimum of 20% of the total to be elected from an area to a Council and at least one member from other ethnic minorities if they form more than 10% of the eligible voters. The members so elected would be considered as independents.. The number of elected members in a given Council might vary from Region to Region depending on the number of sub-administrative areas in that particular region, governed by the principle of equal number of members to the same or similar councils from similar areas – irrespective of the size and population of the area concerned. (Similar to the principle applied in the election to the Senate in the US – two members per State and in the UN one member per country/administrative area).

    Eligibility: No person shall be eligible to contest or to become a member of a Council if he/she had been a member of that council within the last two years immediately preceding the date of nomination. He/she shall be eligible to contest to any other Council. This clause shall apply to all members of his/her immediate family. Only one member in a family can seek election to any one of the councils at any one time. A person cannot serve for more than two terms and in more than two councils during his/her life-time.

    A person while holding a ‘post’ in the government or government controlled institutions or public limited liability companies quoted in the Stock Exchange shall not be eligible to seek election to any Council.

    The term: (period) of all councils shall be four years and elections should be held only once in every four years and dates to be fixed in the constitution itself as in the U.S.A. with a succession clause to fill any vacancy that might occur in between two election dates.

  • Iqbal

    The article started with constructive ideas such as ‘unity in diversity’ , ‘ introspect the mistakes done in the past and to undertake profound reforms’, ‘the power rests always with the people in a democratic set up’ and so on. How can Diaspora take part, demand produce free and queue jumping in developmental projects when the military and ex-army commander as the governor dictate how things are done, with thye former demand produce free, enforce queue jumping and insist southerners or their paramilitary friends enjoy favourable treatment.
    Look at Malaysia, there, too, is discrimination against non-Malays but the economic benefits of any family of ethnic minority is far better off than the counter part in Sri Lanka. The infra-structure is much superior. Even for police clearance one has to bribe at least 4 times and travel to Colombo through the rough A roads whereas a southerner use modern railways and up-coming air port. In Jaffna the only airport is occupied by the military after chasing the civilians in its neighbourhood.

    Priority is given to building war memorials, Buddhist viharas and dagobas instead of badly needed houses that were destroyed by the war. On the other side Mosques , temples and churches were demolished or burnt down which will only divide and polarise communities and will not build bridges.

  • luxmy

    Chathurika

    The best way the diaspora legal professionals can help Sri lanka is bringing about systemic changes (the ethnic conflict has been going on from the time of independence and oppression of ethnic minorities goes on unabated and NO signs of change of attitude of the govt) by getting the attention of the international community to:

    i. press Sri Lanka to publish the reports in: http://www.scribd.com/doc/85007346/A-List-of-Commissions-of-Inquiry-and-Committees-Appointed-by-the-Government-of-Sri-Lanka-2006-%E2%80%93-2012

    (Successive Sri Lankan governments have been doing the same for decades:
    Sri Lanka: Twenty years of make-believe. Sri Lanka’s Commissions of Inquiry, 11 June 2009, https://www.amnesty.org/en/library/info/ASA37/005/2009/en )

    ii. the thousands detained in prisons without charges for up to 20 years – most of them were youth s when they were rounded up on suspicions under PTA:
    http://files.amnesty.org/archives/asa370032012eng.pdf

    • Sie.Kathieravealu

      Instead of asking or pressing for something that will not be a solution, please press for a SOLUTION in the first instance.
      To achieve the commendable objectives the “path” is “power-sharing among the people and not among the Sinhalese, Tamils and Muslims as is being advocated by the “professional politicians”.
      Think about it over not once but many times with the “betterment of the country and its people” in your heart.
      Over to those who are tired of talking about the ‘problems’ and are anxious to find a solution and accept “power-sharing” as a solution.

  • Kusuma Wattawa

    What’s Next!,
    Pl look at the bigger picture – Sri Lanka needs change in fundamentals:

    In 1956 there was a peaceful sit-in in front of the parliament and while the Police (ordered not to interfere) stood by mobs attacked the participants while the Prime Minister looked through the window and Laughed !! Since then we have been seeing nothing but violence, violence, violence:

    ”But that truth cannot excuse human rights violations that currently afflict the nation as a whole; or for that matter obscure the looming threat of the cultural and political colonisation of the north by the Sinhala Buddhist majority” – Biased and Prejudiced Collection on Sri Lanka, *Gananath Obeyesekere, Economic & Political Weekly, VOL 47 No. 04, 28 January-03 February 2012 (*a Sinhalese Buddhist and Emeritus Professor of Anthropology, Princeton University), http://www.scribd.com/doc/82525102/Biased-and-Prejudiced-Collection-on-Sri-Lanka

    No time for add-ons – ONLY structural change in the institutions which of course need a change of our mindset.

    Please use your knowledge AND the FREEDOM to use the knowledge to bring justice and peace in Sri Lanka:
    http://transcurrents.com/tc/2010/10/post_585.html

  • Alex F

    Whilst these are all commendable objectives, the ground realities of sri lanka of those of a genocidal state behaving in a reprehensible manner with the full democratic backing of the majority of the population. Unity in mono-ethnicity seems to be the current action plan being rolled out by the rajapaksa clan.

    • Sie.Kathieravealu

      Whilst these are all commendable objectives, the ground realities of sri lanka of those of a genocidal state behaving in a reprehensible manner with the full democratic backing of the majority of the population. Unity in mono-ethnicity seems to be the current action plan being rolled out by the rajapaksa clan.
      To achieve the commendable objectives the “path” is “power-sharing among the people and not among the Sinhalese, Tamils and Muslims as is being advocated by the “professional politicians”.
      Think about it not once but many times with the “betterment of the country” in your heart.
      Over to those who accept “power-sharing” as a solution.

  • Common sense

    How can country prosper when the leaders are building extravagant budhist temples and stupas in every possible place in the North and East when right beside those structures people are living without a roof or without a square meal, where children cry with hunger!! Where ladies have no privacy or protection to save them from the uniformed thugs!!!People have no means of livelihood. What little small business they could have started are taken over by the uniformed thugs!!!

    When the people have no shelter, of food is it necessary to construct new Budhist temples? Do you think they can convert people to Budhism by acts like this? Don’t they realise that service to mankind is the service to God? What kind of violent Budhism are we practicing?

    What kind of reconciliation is this? The leaders are only concerned about making their money for themselves and for their generations to come while the going is good!!! They are only for themselves!!!

    Power sharing is the answer to the 65 year old problem in Sri Lanka? There should be no place for STATE TERROR!!!

    • Sie.Kathieravealu

      To ‘Common sense’ and others,(11/16/2012 • 7:39 pm)

      “Power sharing is the answer to the 65 year old problem in Sri Lanka? There should be no place for STATE TERROR!!!”

      It is agreed that “power sharing” is the answer fo the problems of today.
      BUT “power sharing” SHOULD NOT be between the – Sinhalese, Tamils, Muslims and others – but between the PEOPLE AMONG THEMSELVES.
      Professional Politicians must be eradicated for the Country to Prosper and the People to live happily and in peace.
      Think in a broad sense about the betterment of the country and ITS PEOPLE.

  • Off the Cuff

    Dear Chathurika Rajapaksha,

    “As regard to the unity in diversity, Sri Lankans of different religious background have coexisted side by side in harmony for many centuries, enjoying the core values. One could wonder whether article 9 of the 1978 Constitution which gives special protection to Buddhism had interfered with that stability”

    The above statements of yours appear to contradict each other when viewed against the historical background extending over several millennia, not just centuries.

    Hence could you please explain your statements in more detail, given that the SL constitution at independence, was authored by the Britain, a country which is still not secular.

    • Anpu

      Dear OTC,
      “..Britain, a country which is still not secular…”
      It may not be written in constitution. But in reality Britian is very secular. My understanding is SriLankan constitution says it is a BUDHIST country. But they do not practice BUDHISM. They build dagobas wherever they find bo tree, kill innocent TAMILS in thousands in days,…

      • Off the Cuff

        Dear Anpu,

        Though you have digressed from the question I posed to Chathurika I will engage with what you say while awaiting Chathurika’s answer.

        You say “My understanding is SriLankan constitution says it is a BUDHIST country”

        I believe that you have not understood either the SL Constitution or the British Constitution. Please prove what you say with reference to relevant extracts from the SL Constitution and since you claim that UK is VERY secular please contrast the SECULAR aspects of the SL Constitution with the NON SECULAR aspects of the British Constitution.

        You say “It may not be written in constitution. But in reality Britian is very secular”

        After living half a lifetime in Britain are you still unaware that Britain does not have a written constitution? Hence of course you cannot find it in the “written” Constitution.

        Does that mean it is Secular?

        I hope you know that the Law is in written form.

        Here is the Law regarding Education.

        The most recent legal statement of the requirements for collective worship (as distinct from assembly) are contained in the School Standards and Framework Act 1998. These build on similar requirements in Section 346 of the Education Act 1996, the Education Reform Act 1988, and Section 25 of the 1944 Education Act, where the law on compulsory collective worship began. Section 70 of the 1998 Act states that, subject to the parental right of excusal or other special arrangements, “…each pupil in attendance at a community, foundation or voluntary school shall on each school day take part in an act of collective worship.”

        In community schools the head teacher is responsible for collective worship provision, in consultation with the governors. The majority of acts of collective worship in any given school term should still be “wholly or mainly of a broadly Christian character”.

        A “broadly Christian” act of worship must contain some elements which relate to the traditions of Christian belief and which accord a special status to Jesus Christ. (Circular 1/94, paragraph 63).  Only on special occasions can the act of worship take place somewhere other than on the school premises, subject to the agreement of the head.

        I have touched upon just one aspect of the Non Secular nature of UK, which is education. There are many more, the least of which is the requirement that the Head of State to simultaneously be the Head of the Church of England. This means that the Heir to the British Crown has no freedom to chose his/her own religion or its absence. He/She has to give up the crown if he/she becomes even a Christian of another branch of Christianity such as Roman Catholic. You will never see a Hindu King or Queen or a coronation inside a Hindu Temple in fundamentally NON secular UK.

        Still think UK is Secular?

        You might of course contend that the Monarchy is just figurehead or symbol without any power. But before you do, learn what the Royal Prerogative is and what it can do. Because the Human Rights of the Chagosians were brazenly violated using just that.

        Brown Sahib syndrome is the unthinking worship of anything that emanates from the West.

        I hope you will continue this discussion.

        • Off the Cuff

          Correction

          Please replace the Third Paragraph of the my reply to Anpu with the following corrected version.

          I believe that you have not understood either the SL Constitution or the British Constitution. Please prove what you say with reference to relevant extracts from the SL Constitution and since you claim that UK is VERY secular please contrast the NON SECULAR aspects of the SL Constitution with the SECULAR aspects of the British Constitution.

          The error is deeply regretted.

          • Sie.Kathieravealu

            The subject matter is “Give Full Force and Effect to the Separation of Powers & Unity in Diversity” and not whether SL or UK Constitution is ‘secular or not’.
            Let us STICK to the subject “separation of powers and Unity in Diversity”

          • Off the Cuff

            Sie.Kathieravealu,

            I am not sure what drew your ire. Was it my criticism of Britain that some Brown Sahibs’ like Anpu still think is Secular, despite the non Secular Laws and practices within?

            It is unfortunate that the ability to read both “Vertically and Horizontally” is absent in your case.

            I am fully aware what the subject Heading says but you seem to be unaware of the subject matter within. Sad to say that superficial reading, leads to a superficial understanding. So let’s get this “Off Track” discussion back on Track with your help and wisdom, that is.

            Secularity has been raised by the author, who unfortunately has not yet answered the counter question. Anpu, like you, went off on a tangent and asserted that Britain is Secular and my reply to him commenced thus.

            “Though you have digressed from the question I posed to Chathurika, I will engage with what you say while awaiting Chathurika’s answer.”

            But I suppose you have not seen that.
            Why were you so myopic?

            Since neither Chathurika nor Anpu are yet to answer my question about “article 9 of the 1978 Constitution” which was unfortunately raised by the author, as an INSINUATION sans any supporting facts, why don’t you try your hand at establishing the insinuation yourself?

            Hopefully, being the Constitutional expert that you appear to be, this should be child’s play to you. Chathurika and Anpu would no doubt join the bandwagon to help you. I know at least one other contributor to this site who sees Red when Article 9 of the SL Constitution is discussed and I hope he would join you too.

            Awaiting your knowledgeable contribution to argue a case for a Secular Sri Lanka.

        • Sie.Kathieravealu

          As usual “off-the-cuff” is off the track (the subject).

          • Off the Cuff

            Awaiting your wisdom to put it back on track