SRI LANKA: How does the constitutional question affect the question of Sri Lankan identity? 

SRI LANKA: How does the constitutional question affect the question of Sri Lankan identity?

Basil Fernando 

The question of ‘identity’ means who is a Sri Lankan? It could be spoken of purely in sentimental terms and by that sense it might work in a particular territory. We can all call ourselves Sri Lankans and that Sri Lanka belongs to all Sri Lankans. However, it is the constitutional issue that decides in real terms what belonging means.

What ‘belonging’ to Sri Lanka mean to me?

That depends on what rights a Sri Lankan has in terms of its constitutional law. As a Sri Lankan I have, and indeed, any Sri Lankan, has the right to elect its representatives and thereby decide what is good and what is bad and how to solve the problems of the country through proper representative discussion and conversation.

With the introduction of the executive presidential system by the 1978 Constitution and its completion by the 18th Amendment to the Constitution this question of electing representatives will become a more or sentimental issue that does not have any real meaning. Virtually, free and fair elections become something that we can talk about but which does not exist in real terms. Basically, a free and fair election consists of a proper contest and the facilities for that contexts and the belief by the people that a proper system of voting, counting votes and a proper result will come by which the people will elect its own representatives.

This process is virtually halted by the 18th Amendment. In fact, the 1978 Constitution was heading in that direction and J.R. Jayewardene was speaking about closing the electoral map. So in once sense the idea of belonging as a Sri Lankan by way of electing their representatives the idea is under attack by the 18th Amendment.

Now let us go into the basic issue of a job on the basis of qualifications. By belonging to the country if a person with the proper qualifications applies for a job he should get it and the system of law should guarantee that the person would get it on the basis of merit. But that system changes by the system that is brought about by the concentration of power in patronage. You have to have the patronage of a politician, some powerful person to be able to get that job and perhaps with that patronage with even less qualifications. This, of course, is to the detriment of the person with the proper qualifications who may not believe that he ever had a chance of getting that job. Belief is very important to a sense of belonging. Someone with the right qualifications should be able to believe that if he has the right qualifications that at the end he will get the job. That belief has now disappeared.

Then we come to the question of law and order. Suppose a Sri Lankan gets into some kind of problem. He should be able to believe that if he faces a crime that there will be a proper investigation into that crime and that there will be a fair trial process and that justice will be done. But, having a proper investigation system means having a proper policing system. This requires professional police with independence on can make decisions on the basis of their knowledge and training but Sri Lanka no longer has such a system anymore with the 1978 Constitution which subjects the policing system to politicisation. So the possibility of a proper inquiry no longer exists and someone who has not committed a crime can face fabricated charges. We have a perfect example of that in the cases of Tissainayagam and Sarath Fonseka. These however, are big names but this is happening in every village. The poor are implicated in crimes which they have never committed. These people are tortured into confessing at every police station so does that mean that they belong to a nation; to be beaten up by a policeman? There is nothing you can do about it because the system does not allow for it. So these actions do not impose a sense of belonging, they impose a sense of helplessness.

If you go higher and look into the justice system the people no longer have the belief that just results will come out of a dispute. The dispute settlement itself runs into years and years and the people run from pillar to post. It that a sense of belonging?

The same situation is valid in the civil service. Suppose a Sri Lankan belonging to the civil service wants to proceed through the ranks? Can he do that in a system or merit or does it depend entirely on a politicised process? So where is the sense of belonging in a civil service that does not serve the officers or the citizens? So the civil service is unable to guarantee a sense of belonging to me.

Take the issue of somebody who wants to make a fair criticism of something that is going on around him. It may be about politics or the civil service; he wants to say what he wants to say. But if you do that you get into a whole series of problems. Perhaps you will fall out of favour with people and be outside the patronage system and there might be even more serious problems like being falsely charged with a crime you have not committed. In the worst case you might be tortured and disappeared. Was Prageeth Eknaligoda a Sri Lanka? Did he have a Sri Lankan identity; did he belong to the nation? How do we discuss the issue of Prageeth Eknaligoda in the national identity? Of course this is worse when extended to the minorities.

In the past we said that Sri Lanka belongs to everybody, the majority and the minority. But today we have to say that Sri Lanka does not belong to anybody be they from the majority or minority. Regardless of which group you belong to justice no longer exists for you, fair elections no longer exist for you, a fair process of the law no longer exists for you; neither does equal opportunity for jobs and education. So the constitutional question effects the question of power and the limitations on power effects the question of identity. In a system where the power is controlled in terms of laws, institutions and controls through that a citizen is assured of various rights, protection and a sense of belonging. When the law is destroyed by the constitution and some persons are above the law, when the courts no longer have the power to ask questions, when the police system in the country has collapsed so badly what is the sense of belonging?

Sentimentally we would all like to say that we belong to Sri Lanka but in real terms Sri Lanka belongs only to those who control power and that has an impact of the president himself who has all the power and uncontrolled power deprives people of their sense of belonging to the nation.

Document Type : Article
Document ID : AHRC-ART-116-2010
Countries : Sri Lanka,
Issues : Democracy, Rule of law,