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The burial of democracy - A response to Dr Dayan Jayatilaka’s spurious allegation

Oct 9, 2010 8:28:31 PM- transcurrents.com

by Dr.Nihal Jayawickrama

In an article published in a Sunday newspaper, and in a recycled version published on a popular website, Dr Dayan Jayatilaka continues his defence of the indefensible Eighteenth Amendment to the Constitution. That piece of secret legislation not only did immense damage to the personal credibility and integrity of those who participated in its unseemly swift passage through the law-making process, but also to the institutional integrity of democratic governance in this country. In an attempt to divert attention from that fact, Dr Jayatilaka now asks when it was that democracy began to die in Sri Lanka.

Both the original and the recycled versions of his article contain the following paragraph:

Perhaps we were closer to the burial of democracy and its replacement by dictatorship at the fag-end of the SLFP administration of 1970-77, when there was kite flying from public platforms about prolonging Mrs Bandaranaike’s incumbency, and the whizz-kid of a Secretary to a relevant Ministry who is today a British-based born-again proselytiser for International Humanitarian Law and R2P, actually drafted an amendment to the Constitution which would make for extension of the term of office.

Unnamed alleged draftsmen

Dr Jayatilaka has not identified by name the Permanent Secretary who, he alleges, drafted an amendment to the Constitution that would have extended Mrs Bandaranaike’s term of office. While I am not so presumptious as to consider myself as having been a "whizz-kid", the reference to the former Secretary is clearly to me.

While the reference to me as being "British-based" is not strictly accurate, I fail to see its relevance, considering that Dr Jayatilaka himself is writing from Singapore. Ever since I was stripped of my civic rights at the age of 42, by a powerful parliament at the instigation of a powerful government, I have necessarily had to live and work in foreign countries, especially since I had a young family to support. That experience has enabled me to view from a broader, more universal, perspective events as they unfold here in Sri Lanka.

Dr Jayatilaka’s reference to me as a "born-again" proselytiser for International Humanitarian Law and The Responsibility to Protect is, of course, wholly baseless. I learnt of the importance of protecting human rights as a young student at home, under the influence of a judge whose judgments reflect the importance he attached to what was then a relatively new, emerging, concept in international law.

My own commitment to the cause is one that has continued through my professional life as a lawyer, as a government official, as a law professor, as an academic writer, and in my work in the international field. There was no necessity for me to be born again.

Spurious allegation

As spurious as the allegation that I drafted any such amendment to the Constitution, would be a claim that any such amendment was ever drafted by anyone else. Mr Ratnasiri Wickramanayake who was the Minister of Justice in the months preceding the general election would, I am sure, have been as amused as I was when I read Dr Jayatilaka’s assertion. With a steadily decreasing slender majority in the NSA, a constitutional amendment was the last thing in anyone’s mind.

It is true that as election year drew near, one cabinet minister did briefly indulge in what might have appeared to some as "kite flying" about the possibility of the election being postponed. Mrs Bandaranaike’s immediate response was to instruct other senior cabinet ministers, including Mr Ilangaratne, to immediately refute from political platforms that any such course of action was being contemplated. Indeed, all the steps that were taken at the time, including the revocation of emergency regulations followed by the withdrawal of the state of emergency, were directed towards the holding of a fair and peaceful general election.

A newspaper article in which I advocated electing the prime minister (or president) for a fixed term separately from constituency representatives, but at the same general election, evoked no response at the time. Knowing the minister as I did, I had no doubt (as I am sure Dr Jayatilaka’s father, the late Mervyn de Silva knew only too well) that he was probably indulging in his usual "mischief" designed to disrupt the then burgeoning opposition parties.

The seven-year legislature

The members of Ceylon’s House of Representatives elected in May 1970 for a five year term did begin a new five year term in May 1972 when they were deemed to be the first members of the newly created National State Assembly (NSA) of the Republic of Sri Lanka. It was Mrs Bandaranaike who insisted that the term of the first NSA should be limited to a shorter period than the originally prescribed six years. It would, of course, have been better if a general election had been held in 1972 for the first NSA, but the cost of second general election within two years and the JVP insurgency of 1971 were both factors that militated against such a course of action. I know that Mrs Bandaranaike seriously considered dissolving the NSA in 1975, but the political crisis that led to the break-up of the United Front in that year and the impending Non-Aligned Conference of Heads of State and of Governments scheduled for 1976 obviously led the Prime Minister to defer that decision.

The JVP insurgency

To suggest that Mrs Bandaranaike, at any stage, desired to prolong the life of her government is to distort contemporary history. In April 1971, in the wake of the continuing destruction to life and property caused by the JVP insurgency, when the Army Commander, General Attygalle, reported to her that his men could no longer protect the capital city due to sheer exhaustion, and requested her to seek reinforcements from India, her reply was that she would resign her office and dissolve parliament rather than seek foreign assistance to fight against the youth of her country. I was present on that long night of April 12th when she made this statement, and I know that she meant it.

Free and fair election

On nomination day in 1977, when a UNP candidate was declared elected uncontested in one constituency, no minister, not even the Prime Minister, was willing to ask the Commissioner of Elections why that had happened. It was suggested that I should speak with Mr Felix Dias Abeysinghe, but I declined to do so. The general election of July 1977 was conducted by the Commissioner of Elections without any interference whatsoever from the Government.

That was the political culture of the time. It was so different from what it is today. Dr Jayatilaka should refrain from seeking to view past events through the dysfunctional, distorted, prism of contemporary Sri Lankan politics.