Gajalakshmi Paramasivam – 12 April  2015

Sri Lankan Constitution & Australian Refugee Policy

The 19^th Amendment to Sri Lankan Constitution is due to go through Parliament. As per news report:

[Speaking in Polonnaruwa, President Sirisena said that this would help to bring clarity to what is seen as a confused political situation that prevails in the country today.]

The confusion is not only about  political rights but also about religious rights. My quick perusal of the draft did not take me to any repeal of religion related provisions already in the Constitution as follows:

Buddhism.

9. The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(1)(e).

Freedom of thought, conscience and religion.

10. Every person is entitled to freedom of thought, conscience and religion, including the freedom to have or to adopt a religion or belief of his choice.

14. (1) Every citizen is entitled to -

 (e) the freedom, either by himself or in association with others, and either in public or in private, to manifest his religion or belief in worship, observance, practice or teaching;

The above wording – through which Buddhism is given foremost place, confirms that where a wrong has happened or right has to be endorsed and belief is used to judge and there is a Buddhist participant – that Buddhist  becomes the foremost judge. The Supreme Court Judgment in relation to the 19^th Amendment to the Constitution ought to have therefore been led by a Buddhist in the panel of Judges – comprising Chief Justice K Sripavan and Justices Chandra Ekanayake and Priyasath Dep. From the name and the fact that Mr. Sripavan studied at Jaffna Hindu College,  I conclude that Chief Justice Sripavan is NOT a Buddhist. If either of the other two is – then as per Article 9 of the Constitution – that Buddhist Judge ought to have led the ruling where belief based discretionary powers were used in place of Letter of the Law. Hence even though by title Chief Justice Sripavan is the leading Judge – in belief – it is the Buddhist judge who would be his senior to deliver judgment. The Buddhist Judge within this panel of three ought to have facilitated the expressions of belief by the non-Buddhist. The other alternative would have been for none of the judges to be Buddhists in areas where belief based ruling is made.

The Spirit of the Law as opposed to the Letter of the Law upholds the Truth through which the law was originally established. If the endorsement of the Supreme Court was therefore led by Justice Sripavan – then it has to be strictly within the letter of the law through which the judgement was delivered. This delivers the intent of the original proposers – the JHU – party of Buddhist monks. The original architect of the Sri Lankan Constitution 1978 - was Mr. J R Jayawardene.

 According to report by Pani Wijesiriwardena:

“In 1978, the UNP government of former President J. R. Jayawardene rewrote the constitution, crowning it with the executive presidential system with broad autocratic powers. Jayawardene boasted that the “only thing the president cannot do is to change a man into a woman and vice versa.”

It is interesting as to how the weaknesses of leaders continue to plague their groups long after they cease to be leaders.  This kind of damage happens where the Spirit of the Constitution is overridden by the Letter of the Constitution. That confirms that votes override governance.

Mr. Jayawardene belonged to the UNP which is the most vulnerable group affected by the Rajapaksa excesses – leading to formation of Common Opposition followed by Common Government. The 19^th Amendment by its wording is striving to put back some order to this mess created by Mr. Jayawardene. But it continues to fall well short of the Spirit required to hold the Country together. Where there is a law which empowers those in government and citizens who practice those laws – knowingly or otherwise – are denied the exercise of the same value powers as the government at their respective levels – that law becomes a dividing law due to the indebtedness of the government which failed to protect the rights of practitioners.

The recent report of the investigation into Sri Lankan Airlines – initiated by the Prime Minister - the Hon Ranil Wickremesinghe – of that  United National Party (UNP) – seems to have targeted the Brother in law of the former President – Mr. Mahinda Rajapaksa. This appointment is an extension of the ‘family’ system of governance by the former Regime which claims victory over Tamil rebels – the LTTE.   The Board of Inquiry (BoI) report as a result of  the above investigation confirms the special interest in this appointment and rightly so – as such appointment is in breach of the Spirit of an independent Public Limited Liability Company. One of the areas covered by the BoI is the appointment of GSA (General Sales Agent)  in Australia.  Was this due to the Regime of Mahinda Rajapaksa or due to the influence of  Mr. Jayawardene whose son was a pilot and even though the son led a private life – the  parent in Mr. Jayawardene was planning a future for his son – just as Mr. Mahinda Rajapaksa did for his sons? Did Mr. Rajapakasa inherit the genes of Mr. Jayawardene through the Constitution that elevated the President to the level of  a Monarch?

When one develops a system on personal sacrifice the spirit of the system continues to live beyond the current period. Where one claims credit for a system which is structured  on the basis of personal desires – the system carries negative spirit beyond the current period. Usually – such decisions would be ‘effects’ based. Mr Jayawardene’s in relation to the Constitution as well as the National Airline – were  effects based and therefore of low class whereas Singapore’s first Prime Minister Mr. Lee Kuan Yew’s was sacrifice based and therefore is a positive spirit beyond an individual’s current lifetime. Mr. Lee Kuan Yew is reported to have stated:

[I did not visit Ceylon for many years, not until I had met their newly elected President Junius Richard Jeyewardene in 1978 at a CHOGM Conference in Sydney. In 1972 Prime Minister Sirimavo Bandaranaike had already changed the country's name, Ceylon, to Sri Lanka, and made it a republic. The changes did not improve the fortunes of the country. Its tea is still sold as 'Ceylon' tea.
Like Solomon Bandaranaike, Jayewardene was born a Christian, converted to Buddhism and embraced nativism to identify himself with the people. In his 70-odd years, he had been through the ups and downs of politics, more downs than ups, and become philosophical in his acceptance of lowered targets. He wanted to move away from Sri Lanka's socialist policies that had bankrupted it. After meeting me in Sydney, he came to Singapore, he said, to involve us in its development. I was impressed by his practical approach and was persuaded to visit Sri Lanka in April 1978. He said he would offer autonomy to the Tamils. I did not realize that he could not give way on the supremacy of the Sinhalese over the Tamils, which was to lead to civil war in 1983 and destroy any hope of a prosperous Sri Lanka for many years, if not generations.
He had some weaknesses. He wanted to start an airline because he believed it was a symbol of progress.

Singapore Airlines
Singapore Airlines employed a good Sri Lankan captain. Would I release him? Of course, but how could an airline pilot run an airline? He wanted Singapore Airlines to help. We did. I advised him that an airline should not be his priority because it required too many talented and good administrators to get an airline off the ground when he needed them for irrigation, agriculture, housing, industrial promotion and development, and so many other projects. An airline was a glamour project, not of great value for developing Sri Lanka. But he insisted. So we helped him launch it in six months, seconding 80 of Singapore Airlines' staff for periods from three months to two years, helping them through our worldwide sales representation, setting up overseas offices, training staff, developing training centres and so on. But there was no sound top management. When the pilot, now chairman of the new airline, decided to buy two second-hand aircraft against our advice, we decided to withdraw. Faced with a five-fold expansion of capacity, negative cash flow, lack of trained staff, unreliable services and insufficient passengers, it was bound to fail. And it did.]

One needs to make sacrifices of earned benefits to contribute to ‘systems’ that respond to all on equal footing. Today, at a Tamil Community meeting about ‘Asylum in Australia: Politics, the Law and the People’ I raised this issue of  separating the ‘Rights’ based claim from Experience based claim’.  During  discussions after the main meeting – a young participant stated I was wrong in saying that the claimants did not always have ‘Rights’. Young ones lead through Principles and Rights rather than through experience. I explained that the right to claim asylum came through the law and/or through the Truth as experienced by that person. I said as Australians we had rights as per laws that Australia has adopted. But those who were yet to become Australians were covered by UN laws and certifications or based on their Truth they needed to submit to the kindness of Australians to assess them  and structure them through the appropriate laws empowering Australians to act on behalf of the Nation – for example – through family reunion etc. Often applicants are ‘effects driven’ and hence assume rights directly.  When they are successful due to special influence through Community – it upsets the Balance of Truth in that those who suffered more than these applicants but do not have the means to get to Australia – would enjoy lesser rights. The way to balance that system is for refugee applicants who come through the backdoor to endure more pain by ‘waiting’ instead of pushing – and/or to share their earnings subsequent to obtaining long terms visas – to help other known victims back in Sri Lanka. That is what we become the government that we expect others to be.

Whether it is for the purpose of Constitution or for the purpose of refuge in another country  - those driven by ‘effects’ must use their personal experience and no more. One of the  Politicians present at today’s meeting asked whether these applicants were aware as to the possible failure outcomes ?  I believe that the response to that is they do not know and often because they do not want to know. Those who depend on Community power – need to first pay their respects to the Community elders to have a share in their entitlement. Otherwise – like the Sri Lankan Constitution – the Australian Asylum Policy also would produce a mess.