21 October 2020
Separation of Powers between Religions
As per my learning, philosophy could be Scientific, Ethical or Divine. Likewise, the written law. In civilised structures the gap between Science and Divinity is narrow. Our true belief is our divinity. Ethics is a combination of the two. Where the gap is wide, one needs firm separation of powers. Hence the Doctrine of Separation of powers between the Judiciary and the Executive which also contribute to law making. In Sri Lanka, due to Article 9 of the constitution, this Separation Powers is mandatory between religions.
Yesterday, in response to my article ‘Universal Franchise is the People’ a close member of my family bound by many generations of commonness forwarded to me a clip of a discussion between attorney at law Ms Lihini Fernando and Mr Shameer Rasooldeen of News 1st, on the proposed 20th Amendment to the Sri Lankan Constitution. In many ways Ms Fernando was voicing my thoughts in terms of there being no need for the 20th Amendment because the government had overwhelming majority. However, the basis of our thoughts are different. As Attorney at law, Ms Fernando had the responsibility to scientifically balance her expressions. As a lay person driven by Belief, mine is clean of unpractised science of law. Where our expressions are more common than being diverse, we do not need separation of powers. Where there is less commonness area – we do need separation of powers. Likewise in the case of the current Sri Lankan government and the Judiciary.
As per AP news headed ‘Sri Lanka court: Constitutional amendment needs referendum’:
[The Supreme Court’s ruling, announced Tuesday by the parliamentary speaker, said that proposed sections that relieve the president from being responsible to Parliament and give him immunity from lawsuits and the power to dissolve Parliament a year after parliamentary elections are against public sovereignty.
The court said that a referendum would be required if the sections are not appropriately changed.]
I have been claiming that anyone who is entitled to use governing power is immune from lawsuits. The 19th Amendment to the Constitution recognized this through facilitating Fundamental Rights legal actions against the President. The reason for my claim is that Belief is absolute power. Absolute power is self-balancing and like the Coronavirus is exponential in its spread. Hence the saying by Lord Acton, Dr of Laws, ‘Power tends to corrupt, and absolute power corrupts absolutely’. Coronavirus whose spread is exponential, is a current example of this.
Belief could be positive or negative. If it is negative to majority in a country that claims to be sovereign, there needs to be visible separation between the positives and negatives so they would be active as the two poles. In a democracy Sovereignty of the whole is determined by the sovereignty of the smallest independent group. The adversarial system is based on this. Hence Equal status to leading Opposition in Parliament. In terms of this government, religious minorities who strongly believe in their own religions are negatives and v.v. The positive value of this is the diversity that it carries. With it comes the responsibility to have separate articles that are applicable to non-Buddhists – as covered in Article 9 which includes responsibility to assure rights under Articles 10 and 14(1)(e).
Where one believes in common the autocratic system is the easier structure to work. When the foundation of this system is our ancestors, the structure tends to be tall. When we embrace democracy – this height becomes the lateral distance that our belief reaches. Hence a religious structure that grows naturally tall through belief and binds its senior-most person to its junior-most person, will convert itself to include the most distant culture in a democratic structure. This could be secular culture in Buddhist Sri Lankan government.
By taking the advice of the Supreme Court, this government confirms that its proposed Amendments are not belief based. In contrast this government did not seek the advice of the Judiciary in the case of Prevention of Terrorism Act before declaring as follows through its Cabinet Spokesman:
[“The PTA is back in the statute book, empowering the police and armed forces to face any threat posed to national security from any quarter.”]
If this government believed in PTA – it is understandable due to Mr Gotabaya Rajapaksa – a Defence expert being part of that group over a long period. But that law was made by the UNP government which is known to be more democratic than the current government. Given that ethnic minorities by belief would consider this to be negative, the PTA required the scientific advice of the Judiciary much more than the 20th Amendment did.
The ‘Buddhism foremost’ article in the Constitution confirms Constitutional separation of powers based on religion. Any amendment to the Constitution therefore has to have the separate approval of political groups that represent minority non-Buddhist groups in national Parliament. They are the natural opposition that confirm natural democracy in parliament. If these groups oppose such amendments – they need to present their Equal Alternatives to the proposals along lines similar to articles 10 and 14(1)(e). This would facilitate smooth globalisation of Sri Lanka, through belief based powers that are rooted in our ancestry.
Due to Buddhism foremost article in the constitution making the power of any Buddhist opposition relative, the Sri Lankan government driven by Buddhism is unable to enjoy the higher access of Absolute power of belief. This is why they say that man proposes and god disposes.