By Harim Peiris

(Published in the Daily News on 22^nd August 2018)

The latest debate in the politics of the next presidential election stakes, due in 2020, is whether former President Mahinda Rajapaksa is eligible to contest yet again for a third term. Now Mahinda Rajapaksa has the unenvied distinction of being the only incumbent Sri Lankan president to have lost a bid for re-election. This despite the legislative success of ramming through a draconian 18th Amendment to the constitution which enabled him to try and seek such an unprecedented third term. The voters in January 2015 thought otherwise and sent Mahinda Rajapaksa packing back to Medamullane, in Hambantota.

At that time, the Rajapaksa’s did not throw in the towel quite as gracefully as their supporters would like us to now believe. We cannot really forget the strange nocturnal meetings on election night at Temple Trees, the deployment plans for troops to control key state institutions and the exploration of a suspension of the election results through a declaration of emergency, all the subject of a formal complaint to the CID by Minister Mangala Samaraweera. Fortunately, sanity prevailed. The then Prime Minister-designate Ranil Wickremesinghe called on Mahinda Rajapaksa to leave office peaceably and quietly and a helicopter airlifted Mahinda Rajapaksa to Medamullane. That he drove back two days later to the Darley road SLFP office in a bulletproof Government vehicle, a courtesy he denied his own predecessor and party leader, President Kumaratunga, was to be the second step in the Rajapaksa return project, the alleged coup de ta, being perhaps the first.

It was Opposition and TNA leader, Rajavarothian Sambanthan, who has stated boldly in Parliament that all Sri Lankan governments have failed to bring to justice alleged gross corruption and abuse of power of their predecessors. The only exception being the conviction of Sirimavo Bandaranaike and indeed her Justice Minister Felix Dias Bandaranaike, by a special presidential commission. In the near four decades since then, according to Sambanthan, Governments have sought to convict their opponents of corruption and abuse of power in the court of public opinion but not in a court of law. An interesting observation by the veteran politician.

The Rajapaksa return project has since taken shape and form in the establishment of the Sri Lanka Podujana Party, the SLPP and the current debate over a Mahinda third term stems from comments made by the SLPP’s nominal head and former Minister, GL Peiris. Professor Peiris has opined that Mahinda Rajapaksa is indeed eligible for seeking a third term of office as president of the republic on the basis that the 19th Amendment restoring and re-establishing the two-term limit on the office of the presidency, is not retroactively applicable to those who have held that office before the 19th Amendment. Contradicting Professor Peiris, rather quickly was former Justice and current Higher Education and Cultural Affairs Minister, Wijeyadasa Rajapakshe, himself a President’s Counsel, who dismisses Professor Peiris’s claims as outlandish and unreal.

The original intent of the framers of the constitution

Now the good Professor Peiris, as befits a man of legal letters, states that he intends to seek and secure the opinion of the Supreme Court on the eligibility of Mahinda Rajapaksa to seek a third term. He concedes that the 19th Amendment does bar people holding the apex office of the republic for more than two terms, his current contention, however, is that it exempts Mahinda Rajapaksa, who held office twice, but prior to the passage of the 19th Amendment. Now it is generally accepted that laws are not retroactive, unless specifically so stated. But the issue is not retroactive, it is futuristic about the next presidential election due in 2020. Also on the same principle, the Supreme Court recently ruled that Maithripala Sirisena’s term of office was limited to five years by the 19th Amendment though the said amendment was post his election at which time the term was six years. Moreover, the original intent of the framers of a constitution or a law is a key issue considered when seeking to interpret a constitution. Clearly, the intent of the drafter of the 19th Amendment was to impose a two-term limit on holding the office of the executive presidency. However, Professor Peiris now leads the political party and not the law department at a university, so it may be worth thinking through the politics of a third Mahinda Rajapaksa term.

The politics not the law of a Mahinda third term

The first political issue of a legal exploration of Mahinda Rajapaksa’s eligibility for an unprecedented third term, is that it lays bare what has been only private conversations before, the lack of unanimity among the Rajapaksa clan as well as their political allies, self-styled as the Joint Opposition (JO) about Gotabhaya Rajapaksa’s early and unilateral attempt at throwing his hat in the ring through “Viyath maga”. Sources close to former President Rajapaksa and indeed Professor Peiris have opined that a loyal acolyte of Mahinda’s like GL Peiris or indeed a Dinesh Gunawardena may be preferred, rather than the mantle passing to a sibling and hence another wing of the family. Keeping alive the myth of a Mahinda third term actually blocks another Rajapaksa from building himself up, in the interim period before the election.

That the family and indeed the JO are not unanimous in either their tactics or their choice of candidate was also borne out earlier this month through the relatively modest success of the JO’s opposition rally at the Viharamahadevi Park and Lipton Circus. The attempt to get around ten thousand people failed when less than a third of that number was mobilized and political insiders claim that Basil Rajapaksa, had not thrown the SLPP’s organisational weight behind the event. From the failure of the election of a deputy speaker to their public rallies and choice of presidential candidate, the dissent and dissension in the highest ranks of the Rajapaksa JO are becoming increasingly visible.

The downfall of Sri Lanka’s historical monarchical dynasties during our pre-colonial era was largely due to succession battles which were often bloody and brutal within the family. The Rajapaksa’s need to learn from our political history, as they seek to build a democratic political dynasty, the importance of succession planning, especially in the complex context of a post-war, multi ethnoreligious and democratic society.

By Harim Peiris

(Published in the Daily News of 10^th August 2018)

  Professor G.L Peiris, trusted acolyte and nominal head of the Rajapakse brothers and their new political vehicle the Sri Lanka Podujana Party (SLPP) has taken umbrage and fired warning shots across the bow of the ongoing constitutional reform process. The good professor’s pet peeve with the proposed new constitution is supposedly that it has been designed with malice towards the Rajapakse brothers.

Before delving into the merits or otherwise of Professor Peiris’ critique of the constitutional reform process, it would be worth noting that the Constitutional Council was established by a unanimous vote in Parliament after the mandates of 2015, in the context of the widespread public acceptance that the Sri Lankan State needs to be reformed, to better serve the sovereign people of Sri Lanka. Successive Sri Lankan governments, by Sri Lankan Freedom Party (SLFP) led alliances, since 1994 has been trying to reform Sri Lanka’s constitution to strengthen democracy and to ensure inclusivity especially of marginalized and alienated sections of society. Hence it was not only Presidents Kumaratunga and Sirisena who attempted and did make some constitutional reforms, namely the 17^th and 19^th amendments to the constitution, but also President Mahinda Rajapakse during his period in office had the All-Party Conference (APC) and its progeny, the All-Party Representative Committee (APRC) as an executive body and the Professor Tissa Vitharane headed committee of experts as a working group on constitutional reforms. Finally, the 18^thamendment to the constitution which President Rajapakse did manage to enact, was all about transforming Sri Lanka from an imperfect democracy to an elected de-facto monarchy enthroning the Rajapakse dynasty.

Abolishing the executive presidency, term limits and foreign nationality

 Now Professor Peiris not unsurprisingly has objected to two clauses in the proposed draft constitution which he says are prejudicial to the interests of the Rajapakse, even though it is in the public interest. The first objection which Professor Peiris raises is to the abolition of the executive presidency, a near article of faith of the political establishment for several decades. Of the three major political parties in the country, the SLFP, the UNP and the JVP, the SLFP and the JVP have consistently opposed the executive presidency. The UNP which actually introduced this office through the 1978 constitution, most similar to the powers of the emperor in the declining phase of the Roman Empire and notable for the complete absence of checks and balances against the arbitrary and absolute use and abuse of state power, has been the late but now staunch supporter of abolishing the executive presidency.

The proposal to de-bar anybody who has held the office of president for two terms from being elected president is strongly objected to by Professor Peiris. Now term limits are an almost universally accepted check on power and is one of the commonest features of any democratic political order. Accordingly, the SLPP / JO position of opposing term limits can only be described as defying both reason and logic.

The proposed constitutional reforms also debar dual citizens and foreign nationals who even give up their foreign citizenship from contesting for elected office for a period of one year, after such a process is complete. Such a cooling off period, is eminently reasonable. The United States for instance, the country of dual nationality of possible Rajapakse standard bearer and brother number two Gotabaya, (the Khmer Rouge terminology being entirely coincidental) makes naturalized citizens ineligible to be president.

The US Department of Homeland Security makes eminently clear the process required to relinquish US citizenship and for Gotabaya backers, it should be an eye opener that the process is not easy. Specifically, the US seeks to prevent naturalized citizens from giving up their citizenship to avoid legal jeopardy and as a means of avoiding US jurisdiction for past crimes and misdemeanors. Relinquishing US citizenship is not a unilateral step which can be taken by the citizen concerned.

The numbers game in Parliament

 In the context of a protracted and seemingly futile exercise in pursuing the position of the Opposition Leader in Parliament, the informal parliamentary grouping, self-styled as the Joint Opposition (JO) claims that it has the support of seventy parliamentarians. This self-confession of relative weakness is interesting because constitutional reform requires a two third majority in a parliament of two hundred and twenty-five members and accordingly for the JO to conclusively prevent reform requires one third of the members of the house or seventy-five members, which it lacks. So essentially if the coalition of 2015, which was basically Rajapakses verses the rest, can agree on the contours of constitutional reform, be it abolishing of the executive presidency, electoral reform or greater devolution of power, the reforms can still be enacted. The impending electoral contest of 2020 though looms large in the viewing lenses of the various political formations and their leaders and the proposed reforms may only be enacted after the 2020 elections. Those elections though would provide Sri Lankans with a stark choice, a messy coalition whose good intentions translate into actions at a pace much slower than an impatient electorate demands or a return to the past, with a barely disguised fascist and militarized mono ethno-religious regime, whose inspiration and role model as recently and publicly proposed to a key protagonist, is to be Adolf Hitler and the Nazi regime.

By Harim Peiris

(Published on Groundviews and Daily News on 26^th July 2018)

23^rd July marked the 35^th anniversary of one of post independent Sri Lanka’s darkest chapters, the July 1983 pogrom against Tamil civilians throughout the country. Which was sparked by an ambush of an Army patrol in Jaffna, by the LTTE, then one of several militant groups operating in the North, in which the entire platoon of thirteen soldiers was wiped out. A couple of days later, as the bodies of many of the soldiers were brought to the Borella cemetery in Colombo for burial with full military honors, anti-Tamil pogrom commenced and occurred. Several thousand Tamil people were murdered through out Sri Lanka and many more displaced and disposed. Thirty-five years later and ten years after the war which it sparked has ended, we can look back now at this shameful chapter in Sri Lanka’s history and learn some lessons for our slowly progressing post war reconciliation process.

Current and prior responses

Thirty-five years after the fact, the response of the Sri Lankan State to July ’83 has been more thoughtful and meaningful. Prime Minister Wickramasinghe and Finance Minister Samaraweera were in Jaffna on the occasion and engaged in a series of measures including the launch of Enterprise Sri Lanka in the North, laying out a vision for a future of hope, engaging with the people and very importantly for women’s issues, cancelling micro credit loans up to Rs.100,000 mostly for the single women headed households, among other measures. Prior to that in July 2004, President Kumaratunga had issued a national apology for the July ’83 riots as an interim reconciliation measure and appointed a special commission to pay compensation to victims who lodged claims with the Commission.

The initial response however by the Sri Lankan State and the political establishment in 1983 was a disaster and weakened democratic and pluralist Sri Lanka and strengthened extremism. The direct beneficiary of which was the LTTE in the North and the JVP in the South, which launched its own second insurrection several years later in 1988.

Basically, the Sri Lankan State failed to protect her Tamil citizens from gross violence and accordingly demonstrated a significant state failure in that most fundamental of state responsibilities, the protection of life (of persons) and properties. The name of a well-known then Cabinet Minister was often mentioned as an instigator, organizer and patron of the anti-Tamil violence, which as is often the case with political violence is not spontaneous but organized. President J.R. Jayawardena was silent for several days as Sri Lanka burned and only emerged to express his empathy with the just outrage of the majority community, thereby transforming the discourse on Tamil militancy, as an attack on a pluralist Sri Lanka to a Sinhala verses Tamil conflict. Sri Lanka burned for nearly twenty-five years thereafter and now a decade after the end of the war, there are lessons to be learnt from those failures of July 1983.

Delegitimizes democratic Tamil politics

The anti-Tamil riots of 1983 were not without consequences. The Tamil militancy movement which was still very much on the fringes of Tamil politics was vastly strengthened as the democratic Tamil political leadership lost legitimacy in the light of their inability to get the Sri Lankan State machinery to ensure basic physical and economic security of the Tamil people. Further the Sri Lankan State lost legitimacy in the eyes of the Tamil community, as articulated best by former TULF Member of Parliament late Neelan Tiruchelvam, who described it as “the anomaly of imposing a mono ethnic state on a multi ethnic polity”. The Sri Lankan State, began to be increasingly seen and perhaps also acting, as a Sinhala State, rather than a pluralistic, multi ethnic and inclusive state.

With the escalation of the armed conflict following July ’83, any accountability for the gross violations of human rights which occurred, including that most basic right to life, was never ensured by the State, until perhaps President Kumaratunga’s Commission twenty-one years later. However, the low-key nature and relative lack of publicity given to the initiative, due to nay Sayers even within her own Cabinet meant that many victims as well as the general public were generally unaware of the same.

Learn the lesson with regard the Muslim Community

It is to the credit of Sri Lanka and Sri Lankans that July 1983 was never repeated though the LTTE escalated violence thereafter. However, the mentality, the politics and rhetoric which enabled and created July’83 has sadly not entirely left our public discourse. When the LTTE attacked the army, the counter measures should have been solely a state response against the perpetrators and not rampaging mobs against innocents. To our collective shame, an entire ethnic minority countrywide were targeted, innocent men, women and children.

Worryingly the same rhetoric is emanating from the self-proclaimed saviors of the Sinhala people today, in relation to the Muslim community. We and democratic Sri Lanka need to be protected from these protectors. As the most venerable Maha Nayaka Thero of the Malwatta Chapter observed after the anti-Muslim violence in Kandy. There are no need for “Balsenas and Balakayas” when we have a democratic state and security structures. Which has at least to date, never failed the majority community, unlike the Tamils in 1983.  In the post war decade since 2009, imaginary and perceived threats from the Muslim community are being bandied about to instigate mini pogroms from Dhurga Town Beruwela, to Ampara and Digana Kandy.

Today the names of terrorist groups like ISIS, are household names and claim to wage their war on Islamic principles and for Muslim objectives. However, we cannot concede to a self-appointed violent few, the mantle and leadership of the whole. ISIS never represents Muslims, while 969 in Myanmar cannot be considered as representing the Bama people of Myanmar nor indeed did the LTTE during the war years, legitimize its self-appointed claim to represent the Tamil people and most interestingly the Bodu Bala Sena (BBS) which contested the 2015 general elections basically lost their deposits with a few hundred votes per electoral division in the Sinhala constituencies. Perhaps the most enduring lesson of July ’83 should be “never again” and violent extremism should always be challenged and not allowed to flourish.

By Harim Peiris

(Published in both The Island and the Daily News of Friday 6^th July 2018)

 In the context of an anemic economy and the failure of a democratic coalition to resolve the economic uncertainty and fear people felt, a proud and ancient people, turned to a former Army corporal and in a narrow win, elected the fascists to power. No, not in Sri Lanka, this was Germany in the early nineteen thirties where the failures of the Weimer Republic and its weak coalition governments created an attraction for the strongman politics and ideology, loosely defined as Fascism, to become increasingly popular. Adolf Hitler and his fascist Nazi Party promised a strong Germany, one folk, one fuhrer and one fatherland or one people, one leader and one great country.

The implementation of this vision, unleashed the horrors of the second world war on Europe and the world. The creation of one people, meant that another people (the Jews, but also Gypsies and other minorities needed to be eliminated). The existence of one leader, meant that there was no need for debate and dissent, accordingly the Reichstag (the German Parliament) conveniently burned down one night in a mysterious fire. The need for one fatherland meant that Germany needed to expand its borders, hence the annexation of Austria and the invasion of Poland as Germany tried to recreate the country according to history. Over six million European Jews and millions of others, civilians and military, including pre-independent Ceylon’s troops in the British Army, perished in the war.

The interesting fact, is that while many German people saw the excesses, the weaknesses, the flaws and the social self-destruction which the pursuit of an Aryan master race and German fascism would entail, German society provided no outlet, no space to even explore this topic, until the tragedy played out. Ethnic German nationalism extracted a unbelievable toll on Germany, Germans and the world.

Tamil nationalism and the quest for Tamil Eelam

 Fast forward about forty years after the second world war to post independent Sri Lanka and Tamil nationalism within the country had changed from peaceful, Gandhian non-violent and democratic demands for political and cultural rights to a violent armed conflict for a separate state. In the pursuit of a Tamil Eelam, Tamil nationalist leadership was captured by the “sole representatives of the Tamil people”, the LTTE, which also promised “one leader, one people & one land”. In the pursuit of having only one leader, the “Suriya Thevan”, (among other titles), countless other Tamil leaders from Appapillai Amirthalingaml, Sam Thambimuthu to Neelan Thiruchelvam had to be murdered. In the pursuit of having one people, the Muslim community had to be ethnically cleansed from the land, hence the expulsion of Jaffna’s Muslim by the LTTE. In the attempt to carve out a mono-ethnic enclave in the North and East of Sri Lanka, a violent thirty-year conflict was waged, heaping untold misery on all Sri Lankans in general and the largely Tamil civilian population of the North and the multi ethnic population of the East in particular. The cost of the LTTE and the armed conflict to the Tamil community was huge, their children conscripted, their towns and villages destroyed, their communities internally displaced, their leaders murdered, intra Tamil democratic debate and dissent destroyed, their middle class scattered throughout the West and the poorer sections of Tamil society forced across the border as refugees to India. Nonetheless, before, during and even ten years after the conflict, there is still neither the political space or will to explore and possibly condemn the astronomical human cost and the non-existent benefits of the thirst for Tamil Eelam, through the means of “one leader, one people and one land.

Sinhala nationalism should not go down the path of European fascism or Tamil nationalism  

It is Ambassador and prolific newspaper columnist Dayan Jayathilaka, who I believed first coined the phrase “the sons of ‘56” to the SLFP led UPFA administrations from 2005 to 2015. The phrase denoting that the Sinhala nationalist ideology and social direction of the post CBK SLFP led administrations. The changeover from the PA to the UPFA, was a more Sinhala nationalist, albeit moderate and modernist, exercise, than President Kumaratunga’s Peoples’ Alliance (PA) Administrations. As the focus in Sri Lankan politics turns nearly one and half years ahead to the elections of 2020 and in the context of the February local government polls victory by essentially the political forces of former President Rajapakse, there is interest and focus on what type of a “sons of ’56” Sinhala nationalism, a proposed JO / SLPP / Rajapakse third term would entail. In that context, even the mere hint of serious calls or exploration of a “strong man” rule, and seeking support for the same from ethnic identity, rather than a broader more pluralistic nation state civic identity has the potential to have similar disastrous consequences.

Sri Lanka is democratic and pluralistic. We have been let down in the past, not due to an over-abundance of either democracy or pluralism, but rather due to a deficit of the same. We had our national conflicts, including with both the LTTE and the JVP and now most recently post war with the Muslim community, due to a democratic and rule of law deficit, not an excess. If we have not developed our economy, it is not due to the absence of a strong leader, but rather the absence of checks, balances, transparency and accountability which would be common features in an open and democratic society. Sri Lanka has largely implemented an ill-liberal democracy. While we have representative government, we have not valued, cherished or developed either accountability or transparency in governance.

Accordingly the answer to the Sinhala community’s frustrations may lie in greater transparency, accountability and checks and balances through a consolidation, strengthening and institutionalization of changes brought about through the 19^th Amendment, the resultant Independent Commissions and the Right to Information (RTI) Act, rather than trying to shift a democratic, pluralistic and inclusive Sri Lanka to “one leader, one people and one land”.

By Harim Peiris

(Published in the Daily News of 18^th June 2018)

The press has been full of reports that outgoing US Ambassador Atul Keshap has cautioned and advised former President Mahinda Rajapakse that the nomination of his brother and US citizen Gotabaya Rajapakse as candidate for president in 2020, faces a variety of legal and other obstacles, based on the sum total of which, the United States would not consider the same favorably. The fact that this information was first put out and confirmed by the former president’s office, indicated that the Rajapakse media team initially at least believed that, being seen unfavorably by the West, is an electoral gain. This is in line with the messaging of the unsuccessful Rajapakse campaign in 2015, which strained to cast that election as a Rajapakse verses the West, a Sri Lanka verses Geneva election. Though in actuality, the 2015 election turned out to be Rajapakse verses the rest of the political parties and the result is history.

US citizenship provides jurisdiction

Skimming through social media reactions to Ambassador Keshap’s observations, a small section of social media users has rather predictably called on the US to mind their own business, that Sri Lankan politics is the sole preserve of Sri Lankans. This does hold true, but only with the confines of and the context of the fact that, no nation lives in isolation by itself, but within the community of nations which imposes certain norms, treaty obligations and an ever-increasing body of international law commitments on nation states. The majority of social media users through are aware of the legal implications and rights of national jurisdiction over citizens.

The real, legal right which the US Ambassador excised over Mr. Gotabaya Rajapakse, was and is his jurisdiction over him as a naturalized US citizen. Being a citizen of a country places certain legal obligations on the citizen and more importantly provides the State with jurisdiction over its citizens. US law particularly exercises extra-territorial jurisdiction over its citizens, namely that their actions in overseas territories still make them liable to the US under its own laws.  Further US law does not permit its citizens to hold political office in foreign governments. An official position like a ministry secretary is allowed, a political office is not. A US green-card holder who is merely a permanent resident, may do so but not a citizen. Gotabaya Rajapakse is a dual, US citizen and also a Sri Lankan citizen, thereby being subject to the concurrent dual jurisdiction of both countries.

Ambassador Keshap reportedly made the observation that the skill set required to lead a military and security establishment, where orders are followed without question are not the skills required for managing democratic diversity in a pluralistic society. There have been claims by some JO stalwarts that US citizenship can be renounced at any time. But US citizenship is not like a job, which you simply resign by sending in a letter. Renouncing US citizenship requires that you leave with a clean slate. US law does not permit its citizens to get out of potential legal jeopardy by simply renouncing citizenship to remove US jurisdiction. In that instance, the US refuses to grant such a release. Accordingly, the various allegations against Mr. Rajapakse, including in the US, regarding especially human rights violations would need to be resolved before US citizenship is cancelled.

The 19^th Amendment, foreign MPs, judges and presidents

The political landscape post the 19^th Amendment to the Constitution is somewhat different to the period of the two terms in office. One feature of the 19^th Amendment is the specific stricture and prohibition on foreign citizens being members of Parliament. One MP, lost her seat as well through the courts for being a foreign citizen. While the 19^th Amendment is silent on the specific issue of a foreign national or a dual citizen being head of state, head of government and commander in chief of the armed forces, the laws of natural justice, the original intent of the framers of the constitution and common law if not common sense would create a fairly convincing constitutional fundamental rights case that a foreign dual citizen is ineligible to be Sri Lanka’s president under our constitution. After all our basic response to even the Geneva UNHRC resolution for foreign and Commonwealth judges, despite the tradition of Commonwealth commonality of a call to the Bar and the legal profession, is that foreigners cannot be allowed to preside over Sri Lankan judicial processes. It would be weird if they can preside over our state and government. It stands to reason then, that we cannot allow a foreign or dual national to be president.

The precedent of 2010

Political observers would recall how on the polling day of the 2010 presidential election, Wimal Weerawansa, then a rather vociferous minster in the Rajapakse Government, went on national television while polling was going on, to claim that a vote for then opposition presidential candidate General Sarath Fonseka, a US permeant resident or green card holder, would be null and void because he is ineligible to be president and a vote for him would be a wasted vote. The broadcast was only stopped when the Election Commissioner intervened following protests by General Fonseka’s campaign and the UNP. However, Wimal Weerawansa whose mono lingual eloquence of speech, has never been in doubt, makes a compelling argument that a foreign citizen (he actually argues even a resident, who is merely a long-term visa holder of sorts) could not and should not be elected the head of state, head of government and commander in chief of the armed forces of Sri Lanka. No doubt Weerawansa’s verbal heroics in 2010, may well come back to haunt the JO  and the Rajapaksa’s in the run up to the 2020 elections.