Rohan Edrisinha and Asanga Welikala 

 

The Political Watch Column of the Sunday Island of 22 June titled Opposition at Sea  included a critique of an article co-authored by us which was published on Groundviews (and in the Sunday Leader) sometime ago, in which we argued that if Sri Lanka was serious about ensuring that its laws were compatible with the International Covenant on Civil and Political Rights, a constitutional amendment to its bill of rights was desirable.

We are disappointed that the columnist has either completely misunderstood several of the arguments put forward or distorted what we stated.

We recognized in our article that one of the EU requirements for the extension of the GSP Plus privileges was BOTH ratification and effective implementation of several international treaties and covenants including the International Covenant on Civil and Political Rights. As the columnist rightly pointed out, ratification is one matter, implementation another. But our point was that even with respect to ratification or making the substantive provisions of the ICCPR, a “very basic human rights document” indeed, part of the Sri Lankan legal regime, our laws, including the country’s supreme law, had to be improved. The Second Republican Constitution of 1978 has been widely recognized as fundamentally flawed, across the political spectrum which is why there is a consensus that it should be replaced. Critics from N.M. Perera to Chanaka Amaratunga have argued that it promotes authoritarianism and provides inadequate protection for the citizen from the tyranny of those who wield political power. From the days of the Premadasa All Party Conference in the early 1990s, there were proposals to mitigate some of these weaknesses by improving the chapter on fundamental rights. Unfortunately the then UNP government stubbornly refused to support such changes which were very much on the lines proposed in our article.

1. THE NEED FOR CONSTITUTIONAL RECOGNITION OF BASIC HUMAN RIGHTS

We argued that several basic rights recognized in the ICCPR were not recognized explicitly by the Sri Lankan constitution and that they should be. One of these rights is the right to life, a seminal right, used by courts in many countries to ensure freedom and dignity for people. The refutation of this proposal by the columnist suggesting that a right to life provision in the constitution would not have prevented  the abduction and killing of journalist, Sivaram, is not only puerile, but misses the point completely. Of course, legal recognition of a right does not automatically ensure its effective implementation as this requires effective enforcement mechanisms, a culture of respect for the Rule of Law and people in the relevant institutions acting with integrity. A Bill of Rights which recognizes basic human rights including rights enumerated in the ICCPR is, however, a necessary, though not sufficient guarantee for the effective implementation of such rights. Explicit constitutional recognition of the right to life for example gives it a surer foundation than merely having it recognized implicitly by some judges in their decisions or in an ordinary law that can be trumped by subsequent legislation.

Furthermore if, as the columnist argued, the essence of these “absent rights” is part of our legal regime, then why not recognize them expressly in our Constitution?       

 

2. RESTRICTIONS ON RIGHTS AND THE VALIDATION OF EXISTING LAW

The columnist completely misunderstands our critique of the constitutional provision providing for restrictions on rights, confuses Article 15 (the restriction clause) with another provision that is inconsistent with the ICCPR, Article 16 (the validation clause), and then proceeds to refute an argument we never made!

Our position was and is that both Articles 15 and 16 of our Constitution are incompatible with the ICCPR.

a)     Article 15.

We never as the columnist suggested, oppose the existence of a restriction clause. Our critique of Article 15 was with respect to the scope of the restrictions it permitted. Both the ICCPR and modern constitutions with effective Bills of Rights like South Africa, provide for restrictions on rights but in a manner that ensures that the executive’s decision to restrict rights is subject to legislative and judicial oversight and review. Restrictions on restrictions clauses are vital. There is no point in having a detailed enumeration of rights if such rights can be comprehensively curtailed at the whim of those who wield political power. The ICCPR by permitting restrictions that are reasonable or necessary in a democratic society, imposes a check on the nature and extent of the restrictions. Article 36 of the South African Constitution demonstrates that constitutional design has moved far beyond the approach of even the ICCPR.

The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom taking into account all relevant factors including-

a)    the nature of the right;

b)    the importance of the purpose of the limitation;

c)     the nature and extent of the limitation;

d)    the relation between the limitation and the purpose and

e)     less restrictive means to achieve the purpose. 

Since we realize that such a restriction clause will shock our executive convenience obsessed politicians and members of the legal community, we proposed at the very least, a more modest ICCPR style restriction clause.

b)    Article 16

Article 16 validates ALL existing laws written and unwritten, even though such laws violate the chapter on fundamental rights in our Constitution. This is an unprecedented constitutional provision that undermines constitutional supremacy, human rights, and has shocked constitutional scholars around the world. Since an identical provision existed in the First Republican Constitution of 1972, it is ironical that the effect of this and the present Article 16 is to protect all laws enacted before Sri Lanka became a republic in 1972, including ordinances passed during British colonial times, from constitutional scrutiny and challenge. It was deeply regrettable that the Supreme Court in its recent advisory opinion on the ICCPR, chose not to deal with this anomaly.

3. AN APPEAL WITHIN SRI LANKA

The columnist once again misrepresents our third main argument. We pointed out that under the  Constitution of 1978, fundamental rights applications with respect to violations by executive and administrative action must be filed in the Supreme Court which has sole and exclusive jurisdiction in such matters. Since the highest appellate court in the country, therefore, exercises original jurisdiction in such cases, the consequence is that there can be no appeal. We argued that this is unsatisfactory in terms of principle as there should be at least one opportunity and forum for appeal in the interests of justice. We quote the relevant paragraph from our article-

A further general point to note in respect of the ‘full implementation’ of the ICCPR is that Article 126 of the Constitution vests the sole and exclusive jurisdiction in respect of fundamental rights with the Supreme Court. While at first glance this might seem to be an indication of the seriousness accorded by our Constitution to fundamental rights, international best practice, and indeed our own experience suggests that, there should be provision for at least one appeal from a decision of any court. This will also free the Supreme Court from the burden of trying facts, only take up cases of constitutional significance on appeal, and thereby be able to articulate a more coherent fundamental rights jurisprudence. 

The last sentence makes it absolutely clear that we proposed that a local court such as the High Court should exercise original jurisdiction in fundamental rights matters with an appeal to the Supreme Court so that the Supreme Court, like its counterparts around the world could focus on questions of law rather than questions of fact and act in an appellate capacity. At no stage in the article did we propose that there should be an appeal to a foreign court, as claimed by the columnist.

 

CONCLUSION

Many of the arguments made by the columnist are similar to those advanced by Minister Prof. G.L. Peiris in recent interviews and public statements. Their argument is basically that Sri Lanka needs do nothing more to meet the requirements of ratification and effective implementation of the ICCPR in Sri Lanka. We believe that this is a highly risky and arrogant approach given the widely recognized crisis with respect to both governance and human rights in the country. The government should demonstrate some willingness to engage with civil society and be self critical with respect to its human rights record. Our argument is that, apart from the gulf between the law in the books and the law in practice with respect to the Rule of law, media freedom, human rights and governance (eg the non-implementation of the 17th Amendment and parts of the 13th Amendment), full compliance with the ICCPR requires change in the constitutional text as well. The proposals outlined in our article are practical, will have a real and substantial impact on the human rights situation in the country and are certainly not, as the columnist states, “curious legal abstractions.” The extension of the GSP Plus privileges is essential for the garment industry including the workers and for the economic well being of the country. We believe that certain changes need to be made and certain things done, to ensure that the privileges are extended; that they can be done and that it is desirable for the country that they be done. It will help improve the human rights situation in the country, help restrain the executive, make the judiciary less complacent and promote access to justice in addition to ensuring that GSP Plus is extended- a win -win situation for all. 

 

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Although I teach economics at the University of Peradeniya for my bread and butter, I have been quite distant from the discipline for sometime and my readings on the subject has been quite limited to the two courses I teach at the university. My principal research work is on conflicts. Hence, it was not strange for people to call me oftentimes as a teacher attached to the Department of Politics. However, in the last three four months, I had to re-enter this interesting area of work as I was invited to make comments on two books, one in Sinhala (Sri Lanka Arthikaya edited by O G Dayarathna Banda et al) and one in English (Development and Conflict by Kumar Rupesinghe). I had to refresh my knowledge and do some additional readings in the course of my preparation to make these two presentations. More I read on the subject, more I got convinced on the ineffectiveness and the incorrectness of the economic policies proposed by neo-cons and the international trios, the IMF, the World Bank and the WTO. All successive Sri Lankan governments since 1977 adopted those incorrect policies. When I say ‘incorrect’ I mean not some elements of the policy package but the policy package in toto and its underlying theoretical premises. The policy package includes inter alia the followings:

1. The government should adopt free trade regime with lower tariff rates: Annual Report of the Central Bank of Sri Lanka 2007 boasted that ‘[t]he depth of openness continued to remain high as reflected in the low average tariff rate of 4. 1 per cent in 2007.’
2. The government should maintain lower budget deficit (something like 5% of the GDP) since the inflation is the main evil: Annual Report of the Central Bank of Sri Lanka 2007 lamented that the government managed to reduce the budget deficit to 7. 7 per centin 2007 it was not able to do it adequately because of many constraint beyond the control of the government;
3. The government should liberalize both current and capital transactions of the balance of payments;
4. The government should close down inefficient state enterprises;
5. State enterprises should be privatized;
6. Interest rate should be maintained at higher level in order to discourage wasteful investments;
7. Labor market imperfections should be corrected. 

Of course some of these measures taken separately make sense. For example, Cuba reduced its budget deficit 3. 8% in recent years in order to counter inflationary tendencies although inflation may not be attributed only to budgetary policies. Leon Trotsky commenting on development policies of the USSR in the late 1920s and 1930s emphasized the prime importence of maintaining stable currency for development. However, the policy prescription of neo-liberals in its totality is absolutely flawed. The policy package is based on three principles and those three principles characterize the neo-liberal economic theory. The followings are the three principles:

1. Free trade enhances economic growth and all economic activities tend to reach equilibrium through the operation of market. This is I called the Smithian Principle as the neo-classical writers attribute this view to Adam Smith and to his book, The Wealth of Nations. Although Smith means by free trade the absence of monopolies, neo-classicists do not put much emphasis on private monopolies.
2. The countries engage in free trade get benefits if they produce least ineffective goods or in other words goods with comparative advantage. This is I called the Ricardian Principle.
3. The governments are ineffective and government’s intervention in the economy invariable creates disequilibrium and adverse effects. This is I called Friedmanian Principle since Milton Friedman revived this anti-state perspective.  

From development perspective, all these three principles are theoretically incorrect, and not substantiated by contemporary experience and/or supported by historical data. However, this flawed theory supports the needs of the industrially-developed economies and benefits the world capital markets. This theory works well when an industrially developed country interacts with an industrially undeveloped country and contributes working invariably in favor of the former and against the latter. None of the present day industrially developed countries (England, the USA, Germany, Japan, and Australia) however adopted economic policies based on these three principles when those countries were in their early phase of industrialization. The countries such as South Korea was able to break the trap of underdevelopment in the 1960s and 1970s by consciously adopting economic polices that countered these three principles. If the countries that are under-developed adopt these polices and base their economic thinking above-mentioned three pillars of neo-liberal theory, those countries will fail to break the vicious circle of underdevelopment.  

Capitalistic growth needs specific social relations and structures (Karl Marx) within which the operation of the principle of increasing returns, technological change and synergy and cluster effects (Schumpeter) are made possible. The presence of market and availability of capital do not provide adequate basis for capitalistic growth as these two conditions by in themselves do not provide the basis for capitalistic growth. A country can develop if and only if it produces more commodities that encompass these three elements, namely, increasing returns, technological change and synergy and cluster effects. Free market and lower tariff structure do not help but rather hampers production of such commodities. No country in the world has developed without tariff barriers and protection for its infant industries that were characterized by increasing returns, technological change and synergies. Economic policies of 1977 are flawed not because of those policies reactivated internal market mechanisms by eliminating restrictions imposed by the dirigisme regime but because of those policies were detrimental to industries that are characterized by increasing returns, technological change and synergies. The whole exercise has been trade-based not production-based. It favors merchant capital not the production capital.  

Take the Sri Lankan case and its principal export products. The production of tea by nature is subject to diminishing returns, and the production process does not require constant technological changes to reduce the unit cost. Moreover, it has a very few synergies or cluster effects. One may argue, it is different in the case of garments. Up to certain point, the production of garments involves increasing returns and technological change. Since there are backward and forward linkages, it can possibly link with other production processes. Therefore, it was not incorrect to build such an industry at the early phase of development. But we have to keep two things in mind. Garment production depends still on an extensive use of labor and the sectors that can be mechanized are limited. Still one person needs for one sawing machine. So, Sri Lanka entered garment production when advanced capitalist countries gave up that industry because of the fact that it reached technological saturation point. When an industry reaches its technological saturation point, its market competitiveness depends on the availability of cheap labor. Hence, we do not compete with other garment producing countries in the world on the basis of technology but on the basis of the cost of labor the advantage that we are losing at increasing rate. The second factor is that no important steps were taken to advance synergy and cluster effect element when the garment industry made a progress in the last three decades. Countries that began with garment and textiles have gradually moved to technologically more advanced sectors with more synergy effects by producing goods that are characterized by increasing returns. Those success stories showed that those countries gave reasonable protection to those ‘infant’ industries even refusing the advice given by international organizations. Flying geese model explaining East Asian industrialization is good example for such successes. We have followed in the last two decades or so what is known in development discourse as dead-end model. There is no fundamental difference now between tea industry and garment industry.

The whole debate on GSP+ today signifies the flawed economic policies adopted by all the successive governments including the present one since 1977. The principal issue discourse on GSP + should pose is: Will Sri Lanka continue to follow the dead-end formula of the IMF, World Bank and the WTO or adopt a new formula that brought development in today’s advanced countries in the world?

It is better to follow what the developed countries did in the past rather that what they tell us to do today.     

The writer teaches political economy at the University of Peradeniya. E-mail: sumane_l [at] yahoo [dot] com

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Dushiyanthini Kanagasabapathipillai

“We lack road, water, and housing facilities. Our children are unable to attend school regularly as there is no proper transport service. We don’t have any facility and leading the same life even now as same as 18 years ago”.

This is a cry of an Internally Displaced single mother from Jaffna, A. Shahula who chewed betel and shared her agony. She is living with her two kids in Saltern 2 welfare camp in Puttlam.

Most of them are still leading their lives in welfare camps, and lack the normal living standard of a person. A large number of internally displaced persons from Jaffna are living in Thillaiyady, which is called “Little Jaffna”. These Internally Displaced Persons feel that, there is a discrimination between the Internally Displaced Persons from Jaffna and Mannar. They are frustrated about the long delay in distribution of services and goods.

The People’s Revival Front was inaugurated in order to fulfill the needs of the IDPs, who languish in the welfare cam[s for nearly two decades. They say that, they have been cheated by the politicians, and they want a political representation for the Internally Displaced Persons from Jaffna.

“Our people have lost many of their rights. We want to make a difference in their lives and restore their rights. We like to resettle them back in their own places and solve their hardships. These are the main reasons for us to start a new political party. Starting a new  party was a long due, we must have started this party 10 or 15 years ago” says M. M. Kuthoos, the President of People’s Revival Front as a call for prayer was called in the evening.

There were 20,000 Muslims, who got evicted from Jaffna district in 1990. The number and the needs have doubled during  nearly two decades. There are about 15,000 registered voters among the Jaffna Internally Displaced Persons in Puttlam.

The part of the trouble that has developed in Puttlam is between the IDPs and the host community, there aren’t enough jobs and resources for both.

“We are living with a lot of hardships in the welfare camps. There is no job opportunity, rations are not given at regular intervals. We receive the rations after four or five months” lamented S. H. Mansoor, who is running a small grocery shop adjoining his thatched house in Saltern 2 camp.

The members of the host community in Puttlam believe that, the beginning of a new party such as People’s Revival Front is a good move to meet the needs of the Internally Displaced Persons.

“When the minority political parties contest along with the majority political parties, there are injustices such as poll rigging” said  S.R.M.Muzammil, the Chief Trustee of Puttlam Grand Mosque and a member of the host community as her relaxes and supervises in his coconut grove.

Internally Displaced Persons are hopeful that the People’s Revival Party will be able to solve their problems in the future. According to the President of the People’s Revival Front that, they are planning to register it in the near future.

Puttlam is situated on the coastal belt of North Western Province. According to a survey carried out by the District Secretariat of Puttlam, the total population of the district is 8,14,000. Sinhala population is 5,85,000, Muslim population is 1,49,000, and Tamil population is 80,000. There are currently 75,000 Internally Displaced Persons from Northern Province in Puttlam.

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Most of our politicians are sanctimonious, bigoted, corrupt thugs; they are parasites sucking the blood out of our society.

And yet I don’t blame them. I don’t like them, but I don’t blame them. I blame our voters, most of whom if given the chance to become politicians, would turn into sanctimonious, bigoted, bribe taking, scum sucking thugs themselves. George Carlin (may he rest in peace) said it best: “garbage in, garbage out: if you have selfish, ignorant citizens, you’re gonna get selfish, ignorant leaders.”

Our politicians like to hang out with Buddhist priests (who like to hang out with politicians). The moral nobility that is represented in the saffron robe is a good place for a politician to hide their sins. When a politician known to be a drug dealer piously shuts down all bars in his area for Vesak while the priests cluck approvingly, you’d expect everyone to think this is a farce. When they seek blessings from the purveyors of non-violence, compassion, and loving-kindness to promote war, you’d expect everyone to think this is ironic. Surely everyone gets that, right? No, not everyone. Our  voters don’t get it.

When they suppress the freedom of speech and freedom of expression and call the media traitors, you’d expect everyone to get that they’re trying to hide something.  When a deputy editor of a newspaper is kidnapped and tortured after he revealed that the army just bought an S-class Mercedes for their commander, you’d expect them to get that maybe this war is really about making money. No, not everyone. Our voters don’t get it.

When they spend three billion on a failed airline, but our teachers are underpaid, our schools are falling apart, and our children don’t know what the Internet is, you’d expect everyone to get that maybe this is unfair. No, not everyone. Our  voters don’t get it.

They make patriotic speeches on how we absolutely do not need NGOs (who built most of those tsunami houses), and we do not need international aid (guess who funded the Kelaniya overpass? England; the Colombo-Matara Highway? Asian Development Bank). And of course we don’t care what the Europeans think about us (but we want duty free access to their markets, thank you very much). Everyone gets that this is just a gimmick to put a little patriotic fire in our belly in place of ever-increasingly priced food. No, not everyone. Our voters don’t get it.

Everyone says our political system needs to be changed. I happen to think the system is fine. After all, we get a long list of people to pick from in the general elections; we just pick the wrong ones. So the next time you get run off the road by a convoy of Defenders escorting a retinue of armour plated luxury cars, don’t curse the politicians-they are not the problem.

Look in the mirror; the problem is YOU.

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• SRI LANKAN DEMOCRACY IN PRACTICE: 1997 - 2007

In the Republic of Sri Lanka, sovereignty is in the people and is inalienable. We elect a President, Members of Parliament, and Provincial Councilors etc using the powers vested with the people to exercise and enjoy that sovereignty through them.  But what is happening today is the reverse. We elect a bunch of people into office and instead of being the servants of the people, which is what they rightfully should be; they have all become our masters, a law unto themselves, from the top to the lowest Pradeshiya Sabha member.

Take the issue of VIP movement on our already depleted, over burdened roads that have become a menace to thousands of people, particularly those having to commute to the city on a daily basis. The freedom of movement that is enshrined in the Constitution now only applies to VIPs and their henchmen while ordinary people cannot even walk or stand one road when one of these high ups are doing the rounds.

Agreed that protecting VIPs is paramount in a country that is plagued by terrorism and our security apparatus seems to be in top gear to ensure that they do their job well. But now it has come to such point that, there is room on the roads for only the handful of VIPs that behave, not as if they have been elected for a brief period in office but as if the entire country has been turned over to them by a Deed of Gift for a lifetime of exploitation, while the citizens of Sri Lanka have to grin and bear all the their audacities.

Terrorism is a scourge that the entire world is affected by and is not a uniquely Sri Lankan situation. The government likes to rub it in time and again that the LTTE is the world’s worst, most brutal terrorist organization. That maybe or maybe not but there is an indisputable fact, and that is, this menace of terrorism is going to be around for a very long time and the sooner the government and the security establishment realize this hard fact, the better life would be for the citizens of this country.

What the security establishment needs to adopt are long-term methods that will not only ensure that security of VIPs but also the security of the people of this country and which are non intrusive into the everyday lives of the people. While the government likes to put on mighty big displays to show its “military friendly” image, the money spent on such extravagances can be used to give overseas training to those who map out VIP security plans so they learn to adopt methods used in other countries where despite the presence of high security arrangements in place, they are not staring in the face of the people every minute of the day and being a hindrance to their every day activities.

People generally appreciate the tough job that the members of the security forces and the police do which is why they cooperate to the best of their ability when required. We know that there are Emergency Regulations in palace that give extraordinary powers to the military and police and, yes they are needed to deal with the LTTE.  But today those powers are being used in such a manner that even law-abiding citizens are being treated as terrorist suspects. You could be walking on the road when a VIP is passing by and you have a soldier pointing an automatic rifle in your face or you could be standing on a road and suddenly get shoved into some else’s garden. You could be pulling over your vehicle to drop or pick someone up and would have a uniformed man treating you as if you committed a crime. This way all the personal liberties that every citizen in this country should be enjoying are being eroded one by one and very soon we will become a country run with the use of military might while having a democratically elected government in office. This country has been through even darker periods in its recent history but the people have never had the military or the police stepping on their toes in this manner in the past.

Our politicians need to take the advice given by two Indian judges who ruled last year that politicians should remain in the confines of their homes and offices if they feel threatened by citizens. 

”You should not let these men (politicians) to come out. Their presence in public places itself threatens the common men. I do not know why it has become a matter of prestige for them to move with 10-15 uniform security personnel carrying lethal weapon,” two Indian Justices T S Thakur and Justice Veena Birbal observed during a case last October. “It has become fashionable and a status symbol. The more people (security men) surrounds these people (politicians) the more prestigious they feel. It is obnoxious that common men are forced to stay on the sidelines and are prevented to walk on the pavements when the politicians pass through”, the Indian judges said.

These comments are very true of the Sri Lankan situation as well.  What those who enjoy almost absolute power in this country today should realize is that will be nothing but a footnote in the history of this country in a few years time.  How they behave while in office is how history will judge them. The Government has often referred to the people of Kilinochchi living in an open prison under the watchful eyes of the LTTE but does it understand that people living in other parts of the country too are beginning to feel the same way.  By all means eliminate terrorism and terrorists and go about in achieving that elusive “honorable peace’ but don’t trample on the civil liberties of the people while doing do.

The people of this country did not put you in high office to become your slaves.

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