24th June 2001
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By Dilrukshi Handunnetti our Lobby Correspondent

Historic words drowned by crossover rumpus

George Orwell uttered an all time truth, which is universally applicable, when he observed that in our day and age there was no such thing as 'keeping out of politics'. All issues eventually were political issues, he observed, and politics itself was a mass of lies, evasions, folly, hatred and schizophrenia. 

The week that sped by had many reminders of the above. From the very outset, the week was expected to be politically momentous, loaded with an important debate on the government's much critiqued agreement with the International Monetary Fund and a ruling by the Speaker on two interim orders seeking to prevent the appointment of a Select Committee to probe charges against the Chief Justice. 

The significance of both were shadowed by the show of all shows- the cross over drama of seven SLMC members to the Opposition. Speculation was rife that the SLMC had reached some agreement with the UNP causing President Kum-aratunga to give Rauf Hakeem marching orders. And given the penchant of our legislators to massage their bruised egos by doing political about turns, in a sense, it was no surprise when Mr. Hakeem turned to the opposition ranks, and even remembered the much forgotten last words of his party leader who severed all links with the ruling PA only when his wings were firmly clipped.

But the week began smoothly enough, with not even a hint of the political derailments to come. Tuesday was confined to financial jargon with the government's agreement with the IMF coming Imageunder fire while the historic ruling to be delivered by the Speaker on Wednesday. 

The restraining orders preventing the Speaker from appointing a Select Committee to probe charges against the Chief Justice had raised a hornet's nest and the past two weeks remained politically explosive with much criticism being levelled against an attempt to restrict parliamentary immunity.

And the high drama may have goaded Mr. Bandaranaike who appeared determined in his role as custodian of the rights of members to settle the issue once and for all. 

In pin drop silence, the Speaker on Wednesday morning made a historic ruling that "the statement was of vital concern which has been occasioned by an event which sought to restrain him from appointing a select committee."

"The orders are of a far reaching nature and a complete and decisive intervention amounting to an interference with the internal affairs of the House over which this House alone is complete master and in sole control," he announced, amidst thunderous applause from Opposition benches.

Cautiously, the Speaker said he had given much thought to the orders emanating from the country's apex court and that he sought advice of much learned counsel.

"The rights and privileges are considered essential to the proper performance of the functions and duties of the House, and they constitute the collective inheritance of Parliament, empowered by the law of the State that neither the Speaker nor any single member of the House can renounce or surrender or otherwise abrogate. 

No other law can be regarded as superceding this law as the Constitution itself recognizes its continuing legal efficacy, until Parliament decides otherwise," he announced, every word earning opposition applause and a few thumps on the desks by government members.

At his eloquent best, the Speaker cited authorities and even quoted Erskine May to fortify his argument.

"If permitted, this may lead to a flood of cases of this type, where the Speaker would have to face potential court cases- questioning his acts and orders on the erroneous premise that he is performing executive and administrative functions," he noted sternly.

With members from both sides of the divide listening intently to the youngest Bandaranaike's precise delivery, he ruled that the Supreme Court had no right to issue such interim orders restraining the Speaker, and that the order was not binding on the Speaker while there also was no legal obligation for him to comply with the order.

The landmark ruling had the House reverberating with applause as Mr. Bandaranaike settled the question with great aplomb and instructed the motion to be placed in the Order Paper immediately- a decision which only drew appreciative applause. 

It was Opposition leader Ranil Wickremesinghe who noted that if courts were to carry on in this manner, the functions of the legislature would have become difficult while Prime Minister Ratnasiri Wickremanayake himself praised the ruling for finally defining the distinct functions of the two institutions with the only sour point being deputy minister Mervyn de Silva who reduced the sublime moment to a ridiculous one by deciding to list the many virtues of the Bandaranaike clan at the same moment.

But the moment of glory for the Speaker was short lived. Outside the Diyawanna abode, a high political drama was being enacted. The one time king makers the SLMC members having quit the government were making their way to the legislature to officially cross over. 

And excitement freely flowed among the UNP legislators, many of whom prematurely thought this to be the beginning of the PA's end. 

And the debate on the government's agreement with the IMF which only earned wrathful comments from opposition benches like Dr. Karunasena Kodituwakku, Mahinda Samarasinghe , Bimal Ratnayake, Cham-paka Ranawaka and the like despite sound arguments and figures, were forgotten in the moment of political hype. 

In this milieu, UNP's A.H.M. Azwer had another complaint. An angry member stood crying foul, accusing a senior officer of the PSD of manhandling and entering parliamentary premises in his gun-wielding status. 

Soon after this around 3. 15 p.m the real drama began when Rauf Hakeem accompanied by six other defectors trooped in amidst thunderous applause by opposition members, to make a special statement. 

To a man who has enjoyed power and privilege of the ruling clan, the decision to quit government may not have come easy.

Yet if the dethroned minister was in a mood to remember SLMC founder's last wish to severe all links with the PA, Hakeem's pangs of conscience appeared rather belated.

With pin drop silence concealing the fever pitch excitement among opposition members, the departing SLMC leader ambiguously noted:"When we supported this government, we also shared a vision with the PA. Until this morning, we even shared a future, and perhaps we could share the same again".

Obviously pained, he spoke of being insulted, not just personally but as a party when the government obviously refused to acknowledge minority opinion. 

"The decision in the morning has dealt a blow to my party, and it proves the lack of recognition for our many sacrifices and contributions to strengthen the PA. We have unanimously decided to quit all positions we hold under this government as it appears that the PA is unwilling to entertain dissent anymore."

Pausing for emphasis, he noted that the SLMC originally believed that it had the right to be forthright and outspoken, and the PA respected minority opinion.

"As it stifles our voice, we realize that they no longer wished to entertain diverse opinion. We would rather not be a party to such government. I regret I have even been robbed of the pleasure of quitting this government," he said.

But the former minister perhaps executed the wishes of the late SLMC leader A.H.M. Ashraff to severe links with the PA a little too late and only when he was personally hurt, as he noted "I have been punished for not carrying out my late leader's wish".

When Mr. Hakeem crossed the isle, it was a moment of victory for the main opposition busy mustering support to impeach the Chief Justice and move a no confidence motion against the present administration. 

As the deflated government benches bore the loss of seven members in stony silence, a buoyant opposition was seen congratulating the dissidents while Ranil Wickremesinghe, the man who set the ball rolling for the defection to gather momentum, smugly informed the House that the government no longer enjoyed the majority while a jubilant A.H.M. Azwer, unable to contain himself questioned how soon the UNP would be called to form a government. 

With the opposition suddenly expanding to a 120, the numbers are beginning to matter more than ever. With Ferial Ashraff and three others preferring to stay on with the government despite having relinquished all positions, it is also the time to test the strength of the largest Muslim party. 

In this backdrop, a highly buoyed opposition on Friday persistently badgered chief government whip Reggie Ranatunge during the oral question time. Mr.Azwer did not wish to have minister Ranatunge replying a query directed to minister Ferial Ashraff, demanding to know whether the government accepted her as a minister still. 

But putting the foot in his mouth, deputy speaker Sarath Munasinghe noted that the Speaker has already stated that it was assumed that she still was, in the absence of an official communication to Parliament stating the contrary. As the morning session turned stormy with the usually lethargic UNP getting galvanized into action after years of apathy, UNP's W.J. M. Lokubandara challenged the position taken by the government. 

He argued that there was no such requirement if the said minister had either informed the President or made a public statement about such a resignation which silenced the rising government protests over the Ferial saga.

With the opposition now moving to take the upper hand inside the House as its numbers have swelled, the political landscape seems to be ever changing with behind the screen manoeuvering continuing. 

Amidst all the hype, the persistent question would be whether all the agreements and political arrangements among political parties are actually worth their salt- with the pith and substance of political understanding not having short-term political agendas, but salient programmes that benefit the masses. It's a sad truism of our polity that we seem to be immersed in the kind of scenario envisaged by George Orwell too often.

Point of view

Arms and Lankan men

By Tassie Seneviratne 
In days of yore Knights were honoured for their chivalry. War Heroes have been honoured in the highest levels of society the world over. As recently as 1985, Prince Andrew, a son and heir of the Queen of England, fought in the Falklands war side by side with British troops bringing honour to his country and the Royal Family.

In Sri Lanka too, as recorded in the chronicles, Kings Dutugemunu and Elara led from the front in deadly battle and they are remembered and honoured to date. Till not too long ago we too respected and honoured war heroes and dedicated public servants. Names of Generals Denzil Kobbekaduwa, Wijaya Wimalaratne, Janaka Perera, Soldier Gamini Kularatne, DIG Richard Wijesekera, SP Ivan Boteju, civil servants Bradman Weerakoon and Neville Jayaweera are but a few names that come to mind. But today where has all the honour gone?

Since of late we do not hear of honours being bestowed on armed services personnel or public servants for services rendered to the country or the people. It is not that armed services personnel and public servants are not inclined to serve the country and the people, but they are compelled to serve only their political masters. 

Prey tell me, who from among families of political leaders are engaged today in the actual war-front or rendering dedicated public service? We can only talk of Ravi Jayewardene, the only son of the then President of Sri Lanka, who was in the thick of the action in the late '80s training civilians in the border villages and building up the Special Task Force, the elite commando unit of the Police. All this he did in a most unassuming manner. 

Today many family members of political leaders are engaged in arms (deals) and have amassed sufficient wealth.Armed to their teeth with the most sophisticated of firearms, they fight elections and rob votes from helpless citizens, replacing chivalry with cowardice. 

Politicians are now arrogating honour and respect as a monopoly for themselves thus recording a chronic plague amidst our society. The crass manner in which ruling party politicians are fighting for prominence and arrogating honour for themselves, is deplorable. It is repulsive to the whole of mankind to see such crap, elevated to positions of power, smearing our country with their dirt. On the other hand statesmen are being sidelined. 

It is time for the emergence of proper leaders to harness our young blood and overthrow the prevailing system in a manner shown by Mahatma Gandhi and reminded us by learned men like Stanley Jayaweera himself. Giving up at this stage is not a venture for the 'Avadhi Lanka!' activists whose clarion call we should all respond to and support till the younger generation take over and convert these noble ideas into practice .

The younger generation must be made to realize that none of them is inferior to the president of Sri Lanka, cabinet ministers or the Chief Justice. Each of them holds the highest rank known in this country-a free citizen ! 

India's tragic female free fall

In a country with a deep-rooted sons-only ethos, the advent of ultrasound scanning of babies in the womb has led to Indian parents weeding out females before birth.
By staff and wire reports
The ultrasound scans, and the abortions that inevitably follow, lie behind the single most worrying statistic in India's 2001 census a dramatic drop in the number of girls. 

For every 1,000 boys up to the age of six, the census showed only 927 girls. The 1991 figure was 945. It is a shortfall, which demographers say, will haunt the country for generations. 

Centuries of social customs, including the dowry payment, often leave parents with little choice but to avoid having a daughter. 

This has resulted in female feticide on a massive scale including female infanticide, higher female child mortality rates, as well as neglect of girls in early life. 

In the provinces of Haryana and Punjab, two of India's most prosperous agrarian states, the imbalance is even wider than the national average. 

In Punjab, the 2001 census reported a worse scenario: 793 girl children per 1,000 male children, down from 875 per thousand in 1991. 

A fact officials and experts say points to widespread abortion of female fetuses. 

Here the Sikh clergy has threatened to excommunicate those involved in feticide. 

Sex determination banned

The Supreme Court has now ordered state authorities to enforce a 1994 law banning sex determination and signs advertising "ultrasound facility available" have been removed. 

Even tiny signs on trees and utility poles on Haryana's streets, which discreetly beckon expectant parents to discover the sex of their child, were destroyed after an outcry from women's groups and the media. 

Yet hundreds of Indian towns that lack any modern medical facilities still have an abundance of ultrasound centers; even the poorest illiterate women are very much aware of the technology. 

Due to the demand, the cost of the test has doubled to 900 rupees ($19) from a few years ago, however there are no paper records of the any tests conducted. 

Dowry: The human cost

Dowry payment is the main reason for female feticide. Rich or poor, the bride's parents must pay the groom and his family in money, property or goods. 

An ultrasound and abortion, if female, avoids this cost and with the size of the dowry escalating with the families social standing, the price tag can be substantial; $100 or less to a new car, jewelry, gold or an apartment, or a combination of all these and more. 

When the dowry falls short, it is not unusual for the groom's family to harass the bride, each year dowry payment problems leads to the deaths of more than 13,000 young brides. 

Focus on RightsCarrying the purse and the sword

It is a comforting thought that some unanimity has been achieved at last in these wholly bewildering times. The Speaker of the Parliament and a Divisional Bench of the Supreme Court are thus thankfully agreed, during the course of one week moreover, that the impeachment of the Chief Justice of this thrice blessed land should, according to the prevalent laws and procedures, be left in the hands of Parliament. The vast irony of this coincidence, given the sequence of events that led to these two orders, belongs to a different discussion altogether.

For the moment however, let us focus on crucial aspects of the judgement of the Divisional Bench delivered this week, rejecting the three petitions challenging Chief Justice Sarath Nanda Silva's appointment to the post in late 1999. In the first instance, the judgement casts into stark contrast, varying positions taken by the Attorney General in constitutional litigation in a manner which does not reflect very commendably on the institution of the chief law officer of the land. The Divisional Bench decision is also illuminating in the manner in which it exposes very precise pressure points which serious constitutional reform lobbying will be called upon to address in the near future.

The petitions were dismissed by court on three preliminary objections raised by the Attorney General, the first and most important of which was that the appointment of the Chief Justice could not be questioned in proceedings before court. This argument, in turn, rested itself on three contentions; that the Chief Justice was appointed by the President under the Constitutions, that the President enjoyed immunity from any legal challenge to this act of appointment and that the Chief Justice could not be removed from his office except by impeachment proceedings in Parliament for 'proved misbehavior or incapacity.'

What the Attorney General specifically contended in this last respect before court, is very interesting. The argument of the State was that, as the Constitution provided a precise procedure for the removal of a Chief Justice, the jurisdiction of the Supreme Court to deal in any manner with this question, had been completely taken away by the Constitution itself. The Attorney General argued indeed, that no member of the public could, under the Constitution, move a court to have a member of the judiciary removed in the manner that the petitioners were asking for, drawing a distinction between the appointment of a Chief Justice and his removal.

The Divisional Bench agreed with this reasoning. In the fifty three page judgement delivered by Justice S. W. B. Wadu-godapitiya, previous case law of the Supreme Court equating constitutionally laid down procedures for the removal of judges to a 'status of irremovability' is referred to. The judgement proceeds on the basis that the framers of the Constitution have mandated this 'status of irremovability' in order to protect the independence of the judiciary and that the court therefore is powerless to interfere.

But this is where, as pointed out in this column last week, the Attorney General maintains a startlingly inconsistent position with the path he chose to take when three petitioners came before court the week before, pleading that the hand of the Speaker be stayed in the ongoing impeachment proceedings in Parliament . On that occasion, state counsel on behalf of the Attorney General conceded, and in fact, was even seen to have urged that the court engage in the issuing of a stay order, even though it would have resulted in nothing less than an unprecedented transferal of the impeachment proceedings of the Chief Justice from Parliament to the Supreme Court. 

The order of Speaker Anura Bandaranaike, attempting to 'his own self, to be true', has now disposed of that issue in the parliamentary forum. The confusion of a citizen of this country as to how such clearly varying positions could be taken by the State in constitutional litigation of the highest importance however, continues.

The reasoning of the Divisional Bench on the two earlier questions as to the appointment of a Chief Justice by the President and consequent presidential immunity meanwhile deserve particular attention by constitutional reform lobbyists. In ruling that the appointment of the Chief Justice was constitutional, the court specifically takes the position that the act of appointment was at the sole discretion of the President and that she was not obliged to enter into a process of consultation on the decision. In this respect, it is also pointed out that the process of consultation in respect of presidential appointments of other appellate court judges referred to in the majority decision of the Supreme Court in 1997 where the appointment of Justice Shirani Bandaranayake was challenged, did not state such consultation to be mandatory but only that it was desirable. In any event, the court points out that the appointment of a Chief Justice was not in issue in that instance and neither have any answers been suggested in these proceedings to the questions as to what would be the nature of co-operation or consultation when a Chief Justice is appointed.

Equally, it is decided that presidential immunity conferred upon the office by the Constitution, prevented the court from questioning the act of appointment challenged in the instant petitions. The court preferred not to accept the argument of the petitioners that the Chief Justice was a beneficiary of the act of the President or that he was 'invoking' the act of appointment to stay in office and that therefore the presidential act of appointment could be reviewed through the person of the Chief Justice who did not himself enjoy immunity. Instead, the court refers to the fact that the petitioners have not alleged that the Chief Justice himself is guilty of any executive or administrative act violative of fundamental rights. What is challenged is the act of the President in appointing him, which is a act directly covered by presidential immunity. In a reminder very pertinent in other contexts as well, the court points out that it cannot, by judicial action, amend the Constitution and that judges cannot and will not seek to usurp the functions of the legislature, specially where the Constitution itself is concerned.

The twin orders of the Divisional Bench and the Speaker of Parliament this week, in a very fundamental sense, settles this month's glorious confusion regarding the parallel authority of the legislature and the courts. As proclaimed by Chief Justice Charles Evan Hughes as way back as 1862 at a meeting of the First Congress of the United States, Parliament and not the judiciary has both the purse and the sword. Yet, in the enterprise of making democracy workable, both are partners and one cannot say to the other that one has no need of the other. In countries that have, in fact, made democracy workable, this is a very salutary truth. For us however, at this moment in time, undoubtedly this is a truth that carries with it a very bitter taste. 

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