Challenging nominations to Constitutional Council – Part I

By H.L. D. Mahindapala

(March 12, Melbourne, Sri Lanka Guardian) The nominations of Justice C. V. Wigneswaran and the Colombo University academic Jayadeva Uyangoda to the Constitutional Council raise serious doubts and questions about their eligibility and their commitment to fulfil their roles as members of the Council with integrity. The Council is a latter day addition to the Constitution, introduced in the form of the 17th Amendment. Like all amendments the 17th Amendments was introduced to refine the Constitution and not to alter its fundamentals.

Now the unwritten law of any constitution is that no individual can legitimately play an active role in any branch of the Constitution if that individual does not subscribe to the fundamentals enshrined in the constitution. In other words, Osama bin Laden cannot be appointed to any branch of the Constitution of the United States, even if he has the necessary qualifications, because he is ideologically and politically opposed the fundamentals laid down in the American Constitution. Ideological compatibility (as opposed to unquestioning conformity) and commitment to shared values of the people, from which the constitution derives its sovereignty, are a sine qua non for any appointee to function with integrity without raising any suspicion to actions following the appointment.

The documented ideological commitments of both Justice C. V. Wigneswaran and the political activities of Jayadeva Uyangoda in particular expose them as individuals who will not pass the test of being defenders of the Constitution. Both subscribe in varying degrees to ideologies that contravene the basic tenets enshrined in the Constitution. Gomin Dayasiri, a leading lawyer who had been in the forefront of protecting the territorial integrity and national sovereignty at the national and international levels, pinpointed in one of his commentaries a key element in the 17th Amendments designed to set up Constitutional Council. He said: “It is basically to reduce the powers of the President in making appointments to high office and transferring those powers to a delegated body. Indeed laudable since it minimizes presidential intervention to appoint henchman to places of importance which happens so frequently now.

“It is the flip side that is alarming with names of possible candidates for appointment. Some of the suggested names contain predominantly aged elitists with alienated mentalities following the doctrine of the Colombians (i.e, the alienated chattering class in Colombo). Is it going to be the reincarnation of the rejected and retired Colombo society with the added qualification of being able to read and write English, getting a fresh lease of life in a prime decision making exercise It would be like handing the Wanni War to an assortment of officers of Colonel Blimps vintage, with mental conditioning more akin the international INGO, a group who could parcel the country not to the LTTE but to western powers. Though the intentions are honest and sincere in the 17 amendment, it will take us back to a born again era for the decadent elite society which has been comprehensively rejected by the electorate at elections and the People at the War, to rise again to create an exclusive society of the privileged.” Dayasiri’s phrase “alienated mentalities” must be given serious consideration because the crisis has gone from bad to worse because of the pernicious role played by these “Colombians”.

Of the two nominees Justice Wigneswaran holds a rather ambivalent position. This is a common malaise with Tamil professionals and intellectuals who want to have it both ways: i.e., if Velupillai Prabhakaran fails to deliver the Eelam state the Tamil would want to be a part of the Constitution but only the terms dictated by them, irrespective of the consequences to the other communities. His speech delivered in launching Senator Tiruchelvam’s legacy, (published by Vijitha Yapa) on February 1, 2008, illustrates his ambivalence and ideological biases which will inhibit him from functioning as an office bearer of the Council with a genuine commitment to protect the Constitution. In making that speech he fails to realise that he is trapped in his own contradictions of wanting to have the cake and eat it. First, citing Sen. Tiruchelvam’s speech in the Senate he questions the legitimacy of the Constitution and, second, he is advocating a political line which is to dismantle the Constitution he intends to serve as a member in one of its branches. Focusing on East Pakistan that broke away from West Pakistan he even presents a veiled threat of separatism in his speech if the Constitution is not changed to fit the agenda of the Jaffna Tamils who deliberately chose to go down the path of separatism as stated in the destructive Vadukoddai Resolution.

He raises the spectre of separatism, as in the case E. Pakistan which became Bangladesh, without learning lessons from the futile politics unleashed in the Vadukoddai Resolution. E. Pakistan was a success but Eelam is on its way to be buried in Mullativu. Like all Jaffna Tamil professionals and intellectuals who are still wedded to the lost hopes of the Vadukoddai Resolution Justice Wigneswaran draws false analogies, or harps on distorted ancient and modern histories, or blame the Sinhala people without looking inward into the follies of mono-ethnic extremism of peninsular politics.

Looking forward to the post-Prabhakaran period, it is abundantly clear that, whether anyone of us likes it or not, all communities will have to live together in peace. That is the bottom line. None of us can go back to the era haunted by the evils of the Vadukoddai Resolution. More than any constitutional changes peaceful co-existence has abetter chance only if the Jaffna Tamils move away from the ideological fixations arising from the Vadukoddai Resolution. Besides, the likes of Justice Wigneswaran must learn to accept responsibility for their share of follies that led to the Vadukoddai Resolution and stop blaming the Sinhala people for everything that went wrong in the peninsular politics. If he learns to accept that we all are responsible for what happened in the post-independence era then it would be a positive start to march towards the time when we debated differences without violence. If we fail to acknowledge the errors of our past then we are doomed to live in perpetual violence. It will prove once again the dictum of Bernard Shaw who once said that the only lesson of history is that no one learns from history.

Justice Wigneswaran speech indicates that he prefers to live in the failed past and not in a future filled with possibilities of peaceful co-existence. Those who believe in the future cannot have one foot in the Vadukoddai Resolution and another in the Constitution which is diametrically opposed to the Vadukoddai Resolution. His stance, as indicated in his speech, raises a critical question: if he questions the fundamentals of the Constitution and if his aim is the dismantle it, hinting at even separatism, how can he serve in any branch of it with any degree of integrity? He harks back to the good old days when political differences were debated at a gentlemanly level and proceeds to bemoan the deterioration of that culture without taking any responsibility for it. Predictably, he blames it all on the Sinhala polity – the usual whipping horse for all the failures of the Jaffna Tamil political class/caste. He refuses to recognise that the Jaffna Tamil leadership created in the Vadukoddai Resolution a bloody guillotine that came down sharply and severed the heads of northern Tamils more than the others.

He also poses as a blameless, superior Tamil who finds himself “quite out of step with the belligerent, blithering, bullying, barbaric and boorish outfit of today boastfully though beguilingly referring to itself as benignant and beneficient, benevolent and even blessed.” This, of course, does not refer to the Jaffna political culture that produced Velupillai Prabhakaran -- “the sole representative of the Tamils” who has killed more Tamils than all the other forces put together. It refers to “the Sinhala governments” of the south.

Unable to bear the guilt of the Prabhakaran who came out of the womb of Jaffna he conveniently passes the blame on to the Sinhala people for his brutal violence. If Prabhakaran was produced by the acts of the Sinhalese then, going by his logic, he should be killing only the Sinhalese. But why is he killing the Tamils? Did the Sinhalese ask him to kill the Tamils? Why is he killing the Muslims who had done no harm to the Tamils? There is more than a touch of hypocrisy in all this. The failure Tamil intellectuals and professionals to face up to their own guilt, their sins of commission and omission and their political culture that oppressed and dehumanized the Tamils down the ages is primarily responsible for the plight in which they are in now. They take comfort in blaming the Sinhala people when the responsibility lies basically with their leadership that took the Jaffna people down the road of mono-ethnic extremism. They are in a permanent state of denial trying to sweep under the carpet their crimes of treating their own people as a subhuman species –a historical fact that makes the Sinhalese look like angels in comparison. In the feudal times the Vellahla caste of Jaffna treated the lower castes as slaves denying them their basic rights as human beings. Prabhakaran, the successor to that violent culture, is shooting the Tamils in the back when they run seeking safe havens for their security and peace. Justice Wigneswaran tries his level best to cover up the sins of his violent political culture that reduced the Tamils to less than worms and blame it on others. How long can they go on blaming the Sinhalese without pausing to take responsibility for the horrendous mistakes of the Jaffna leadership?

Here is how he excoriates “the Sinhala government” of the day: “Naked selfishness, rank self interest and the spirit of self aggrandizement, conceit and egotistic imperatives seem to motivate today’s possessors of power and authority. Holding on to the reins of government at any cost has become the principal dogma and doctrine to be pursued. Destroying one’s opponents using any means or modes has become a cult. Dead men do not talk has become the principal motto of their outlook.” Even if one is inclined to accept what he says one is not inclined to go along with him because he comes from a culture that treated a section of the Tamils as contemptible subhuman beings. There is no difference between the Vellahla culture and he culture of Prabhakaran: both are two sides of the same coin of brutal oppression of the Tamil people. He cannot point a finger at “the Sinhala governments” which had never eliminated the cream of the Tamil leadership, never engaged in killing Tamils civilians and opponents on a genocidal scale like Prabhakaran, or even shoot them in the back when they are desperately running away to find shelter and peace, however shaky both may be. Is it the Sinhalese who provoked Prabhakaran to be a mass murderer of Tamils or is he doing it out of. “(N)aked selfishness, rank self interest and the spirit of self aggrandizement, conceit and egotistic imperatives (which) seem to motivate today’s possessors of (Tamil) power and authority.” Who has made the “(D)estroying (of) one’s opponents using any means or modes (as)… a cult?

Instead of falling at the feet of Prabhakaran’s personality cult the Tamils had a clear choice. Justice Wigneswaran confirms it when he says that Sen. Tiruchelvam warned against the Vadukoddai Resolution. But S. J. V. Chelvanayakam rejected that non-violent alternative and decided to go down the path of violence. And the Tamil people have paid with their dear lives for this misguided policy of the Tamil leadership. He refuses to admit that the Tamil people were made to pay for the sins of S. J. V. Chelvanayakam and his destructive separatist politics linked to violence in the Vadukoddai Resolution. It must be said in fairness to Sen. Tiruchelvam that though he was one of the activists that generated the mono-ethnic extremism of peninsular politics he was shrewd enough to foresee the impending consequences of opting out of parliamentary politics into “extra-parliamentary” violence endorsed in the Vadukoddai Resolution. The assassination of his talented son, Neelan Tiruchelvam, which he did not live to see fortunately, proved that he was prophetic and that Chelvanayakam was wrong. Chelvanayakam and his separatist cohorts posed as Gandhians in Colombo but showed their true colours as the violent villains of Vadukoddai once they crossed over to the other side of Elephant Pass. The Jaffna Tamil leadership brought the curse of Prabhakaran upon themselves when they endorsed violence based on concocted history and fictitious geography. But that has not deterred Justice Wigneswaran in any way. He is still repeating the threats of Vadukoddai violence saying that the Tamils will continue in Prabhakaran’s path if their demands are not met.

His eligibility to a seat in the Constitutional Constitution is questioned against this background. More importantly, he will have to take an oath as listed in the Fourth Schedule of the Constitution which states:

"I, C.V. Wigneswaran do solemnly declare and affirm / swear that I will faithfully perform the duties and discharge the functions of the office of the Constitutional Council in accordance with the Constitution of the Democratic Socialist Republic of Sri Lanka and the law, and that I will be faithful to the Republic of Sri Lanka and that I will to the best of my ability uphold and defend the Constitution of the Democratic Socialist Republic of Sri Lanka."

Can he raise his hand and swear that he “will faithfully perform the duties and discharge the functions of the office of a Constitutional Council member in accordance with the Constitution of the Democratic Socialist Repubic of Sri Lanka? Can he honestly swear that he will “uphold and defend the Constitution of the Democratic Socialist Republic of Sri Lanka” when he is committed to rip it apart at the first opportunity he gets?

Justice Wigneswaran owes it to his good name and integrity that he should decline to accept the nomination. He should know that he can’t serve the Constitution of Sri Lanka and the Vadukoddai Resolution simultaneously. Besides, by his own admissions he has voted himself out of it. He has a place in it only – I repeat ONLY—if he publicly denounces the Vadukoddai Resolution and its monstrous child, Velupillai Prabhakaran. As a former judge of the Supreme Court who was expected to hold scales of justice evenly he should know that he can’t serve God and Mammon at the same time.

To be continued. -Sri Lanka Guardian