constitution through doctrine of necessity
By Our Political Editor
If the late Junius Richard Jayewardene, the architect
of Sri Lanka's 1978 second Republican Constitution, was living,
he would no doubt have been envious.
was Chandrika Bandaranaike Kumaratunga, a bitter critic of Jayewardene,
who poured scorn over his Constitution with some choice words. The
man who earned the sobriquet "Twentieth Century Fox" (something
he said was actually meant for a leading lawyer of his time, S.
Nadesan) for his rich political wisdom and foresight dismissed her
utterances with a simple one liner - they talk foolishly whilst
in the Opposition but act wisely when in power.
is dead and gone. But his political prophecy has lived on. Chandrika
Bandaranaike Kumaratunga set a record this week as President of
the Democratic Socialist Republic of Sri Lanka for ten long years.
is indeed a milestone in contemporary political history. To mark
the occasion her service commanders, police chief and those near
and dear savored the delights of kavun, kokis and kiribath one morning
at the Janadhipathi Mandiraya. But a nation could not soak in the
jubilance over a decade long presidency for her.
very first public event in Gampaha was soaked by heavy rains. Whether
it was only bad weather that dampened the spirits of many of her
top stalwarts is not clear. But on hand for most of the photo opportunity,
as reflected in the media the next day, was only her brother, Anura.
Unlike sister Chandrika, Anura has paid more encomium to Jayewardene
during his political career.
Jayewardene would probably still say, the President has acted wisely
to hold on to an executive Presidency for ten years. And now, if
she cannot do so any further, it is again because Jayewardene had
made sure she cannot. This is by ensuring only two terms for a President.
Of course there is a debate on when that second term ends, in 2005
the Jayewardene prophecy of Kumaratunga acting wisely and continuing
for a decade as President has now come true, a much bigger question
for Sri Lankans this week was the legacy she has left behind. Events
this week highlighted the dilemma of a President who has lived ten
years in office.
week was marked by a President who has held office for ten long
years opening up five different battlefronts. These fronts were
created largely through her public and not-so-public utterances,
some of which she has, characteristically gone on to deny. Not at
all surprising one would say. But that has not settled the dust
from the controversies she had generated. A brief account of what
declared that both the Police and the Judiciary are corrupt. Though
she retracted her remarks later, saying she did not mean the 'entire
police or the entire judiciary was corrupt - only some of them',
and hanging on to a Transparency International report for her statement,
private TV networks played ad nauseam the sequence of what she actually
said. This has angered the Police hierarchy and the Judiciary. In
addition to opening up these two fronts, she has managed to even
attract a letter from the otherwise fawning, to a point of disgust,
Bar Association hierarchy, and other civil society organizations.
she ordered her most obliging Army Commander, Lt. Gen. Shantha Kottegoda,
to withdraw perks relating to transport which officers in the Army
enjoy. A pro-JVP newspaper has dubbed the ill-conceived move as
a conspiracy by 'insiders' to pit the Army officer cadres against
President Kumaratunga. It is no secret the senior officers are angry
over the chop to their perks.
finally, in an interview with the Chennai based Hindu newspaper
(she is very fond of giving interviews to foreign private media),
she said that the Liberation Tigers of Tamil Eelam (LTTE), with
whom she is talking peace, was still planning to kill her. She declared
that the LTTE was now broken into three factions - the Karuna Group
and now the Soosai Group.
this claim is true, the Government can take a breather from giving
peace talks such high priority. How could such a weak group of guerrillas
talk peace from a position of strength or go to war?
she declared the trip to Singapore by Sea Tiger special "commander"
Soosai was not for medical treatment. This means the Norwegian peace
facilitators fooled the UPFA Government into allowing Soosai to
use an Air Force helicopter to arrive in Colombo from Kilinochchi.
This also means the Norwegians misled the Government, and the Secretariat
Co-ordinating the Peace Process (SCOPP) wished to be misled to issue
a statement that Soosai was being afforded state facilities for
medical treatment on humanitarian grounds. Our Defence Correspondent
deals with this aspect in his report on the opposite page.
the sum effect - a President who has held office for ten years has
in one week made some sweeping remarks, each challenging formidable
institutions or opponents. This in other words was declaring war
or unwise, only the coming weeks and months will show. The judiciary
she accused was shaken to the core last Friday afternoon. Sarath
Ambeypitiya, a fearless judge who faithfully enforced the law, fell
victim to a killer gang's bullets. If the judiciary already faced
an accusation of being corrupt, the bold among them who acted without
fear or favour, now face the bullet. The Police have continued to
demonstrate how pathetically helpless they have become in the wake
of rising crime and very powerful drug cartels. It seems the likes
of Pablo Escobars of Columbian fame are taking control of Sri Lankan
society. Their rulers, be it those in power or those in the Opposition,
do not seem to care two hoots. And certainly not like in Sicily,
the home of the dreaded Mafia drug barons, where the ordinary people
flocked out on to the streets to protest the murder of a Magistrate.
this backdrop, even if a nation did not notice, she did what the
LTTE wanted her to do during their talks with the Norwegian Foreign
Minister Jan Petersen - to make a public declaration which said
the Government of Sri Lanka was ready for peace talks, even this
month. It was The Sunday Times that exclusively reported in this
column last week of the LTTE's secret message through Norwegian
facilitators that President Kumaratunga should make a public declaration
incorporating a 'southern' consensus'.
her public statement meets the LTTE's expectations remains to be
seen. But Kumaratunga did give a joint interview to state run ITN
and the Sri Lanka Broadcasting Corporation. In that she delved at
length on matters relating to the peace process. Naturally, her
opening remarks were on a secret document reportedly sent by LTTE
Chief Negotiator Anton Balasingham to the Government. This followed
a reference in last week's The Sunday Times to an interview with
Balasingham where he was erroneously quoted by our reporter as saying
the LTTE had sent a secret document to the Government. Our reporter
had erred in making a reference to a secret document when it should
have been a secret message. That no doubt was an inadvertent error
which The Sunday Times regrets.
her widely televised interview, broadcast simultaneously over state
radio, President Kumaratunga declared the UPFA Government was not
opposed to an interim arrangement. The LTTE has not expressed any
opposition to this view. She said: "But they have stated that
they only want to discuss their ISGA proposals. The Government is
ready to discuss their proposals but the modalities have to be discussed.
We should resume talks to reach a compromise on that."
text of the interview in the President's official website said:
"the intention of the Government is to reach a lasting solution.
The UPFA was formed after lengthy discussions with the People's
Alliance and the JVP. The JVP has also accepted that this problem
should be settled through discussions and some kind of devolution
of power should be the solution to this problem. Therefore peace
talks should be resumed to decide on the structure and the nature
of the devolution of power."
interview to her state run media bosses was taken well in Oslo,
where Deputy Foreign Minister Vidar Helgessen was pleased that their
visit to the island the previous week was, after all, not all in
vain. He telephoned US Deputy Secretary of State Richard Armitage
and gave him the good news that President Kumaratunga had made the
first move in breaking the log-jam -- even if it was with her being
interviewed by her own men.
also suggested Armitage call President Kumaratunga and show US appreciation,
which Armitage did on Friday. Around 5 pm, President Kumaratunga
received a call from Washington DC where the outgoing Armitage referred
to her interview and endorsed her "strong leadership"
to the peace process.
Kumaratunga did complain to him that Norway was applying "too
much pressure" on her, and at the same time," not applying
the same pressure on the LTTE", a matter Armitage promised
he would take up with the Norwegians.
her public announcements will satisfy the LTTE, which has been accusing
President Kumaratunga of often making contradictory statements is
a 4.5 billion dollar question. But quite clearly, the secret message
from the Wanni, delivered to her by Norwegian facilitators, had
jolted her into action. It would have remained a secret message
had it not been for the exclusive revelations made in The Sunday
Times last week. It will not be long before LTTE leader, Velupillai
Prabhkaran, answers her. That would be in exactly four days when
he makes his "Maveerar" (Great Heroes) Day address. This
time around it is when Prabhakaran turns 50 years.
arrangements are afoot. A 50-foot cut out is taking shape in his
birth place, Valvettiturai, a Government controlled area in the
Jaffna peninsula. A women's group is making a 50-kilo cake. Many
are the other arrangements.
also seized the opportunity of the Prabhakaran-prompted-public announcement
to speak about amendments to the Constitution. Speaking on the Executive
Presidential system she said the "need of the hour is to amend
the electoral system. She said no other country has an electoral
system such as the one in Sri Lanka. The PR or proportional representation
practised here does not realistically reflect the people's mandate."
went on to say, "Members of my family entered politics to serve
the nation not to live on it. My dream is to end my political career
as a backbencher in Parliament." A great pronouncement indeed
from a President who had remained in office for ten long years and
finds she cannot continue in that post any longer. Would not the
situation be different if there was constitutional provision for
her to contest another term?
since the November 2003 takeover of the Ministries of Defence, Interior
and Mass Communications by President Kumaratunga, it is wise that
the country in general, and the opposition in specific, take her
whatever political actions to be a precursor for things to follow.
It is now apparent that the President's takeover of the three ministries
using the presidential powers vested in her by Jayewardene's 1978
much-maligned but often abused constitution, had nothing to do with
the LTTE's increasing influence in and around the Trincomalee naval
base, or the vulgar culture pouring out of Rupavahini, or corruption
in the police, but as a fore-runner to the complete takeover of
has used the completion of 10-years as a ruse to launch a campaign
of sorts -- but a campaign for what is the issue. She has been making
forays into the hinterland, and into the highlands, and when she
can't make it somewhere, she sends her brother Anura to make excuses
saying she couldn't come because of other official engagements,
and for security reasons.
Opposition UNP has been almost reduced to watching nonplussed. An
occasional sighting on a television chat-show by a select few MPs,
a monthly street demonstration and a few profound statements from
Prof. G.L. Peiris, the one-time spokesman of the PA, now spokesman
of the UNP, have been the only signs of life in the UNP. At least
it had enough ammunition to mount a black-flag demonstration against
the President's 10-year rule which had nicely come for the opposition
with a string of thundering blows to everyone's cost-of-living,
and the President's foot-in-the-mouth remarks about the police,
the judiciary, the army and the LTTE, but all to no avail.
UNP has just not been able to connect with the ordinary people.
Adding to the party's plight is now, some rats jumping out of what
they think is the sinking ship of the UNP and swimming towards the
caught-in-the-rocks ship of the UPFA.
the process for the constitutional changes came on a day when the
entire nation was paying attention to the budget speech of Finance
Minister, Sarath Amunugama. If he announced what was termed a "people-friendly
referendum budget," he also announced that a UNF politician
who had the ear of former Prime Minister Ranil Wickremesinghe was
things have been said of politicians. Some say they keep their fences
so low they can straddle them when there is a need. Others say they
shake your hands before the election and your confidence thereafter.
Yet others say Sri Lankan politicians are never cheap because they
cost the taxpayers so much of money.
Bogollagama crossed over to the UPFA ranks on Friday. He will be
the latest to qualify for all the perks of a Minister. Rohita Bogollagama
is an enigma, in a sense. He catupulted to a ministerial post under
the Ranil Wickremesinghe government, over the heads of many others
probably more deserving UNPers. Many party insiders resented his
ways of worming towards the party leader, and the party leader's
acknowledgement of him, especially after he published a book - more
a eulogy simply titled 'Ranil' with a green cover to boot. But during
the days just prior to the April elections of this year, Bogollagama
had to make a personal appeal to President Kumaratunga. His son
who is studying in the USA, fell ill, and quite seriously so. He
was hospitalised and the hospital was refusing to attend on him
because he was not medically insured.
only someone in America knows what that means - no doctor virtually
looks at you. President Kumaratunga intervened in the matter and
ensured that the Government of Sri Lanka picked up the tab or at
least stood guarantee. While it sounds a humanitarian move, no one
knows the amounts involved, or whether Bogollagama settled the bill
subsequently. When our reporters asked him the question, he first
ducked the question, and then flatly denied the whole episode. So
much for you.
Sri Lanka's political undercurrents, these events never get to the
public domain, though other events, like the gift from the President's
official kitty do. Bogollagama has been conferred with the portfolio
of the Ministry of Advanced Technology in a hush-hush oath ceremony
- hush-hush oath ceremonies now being the order of the day at the
highest levels of this nation. The new Minister is indeed well connected
to people in the business world of advanced technology, from Sri
Lanka to India, and elsewhere. We wish him luck.
in the week, UNP's deputy leader Karu Jayasuriya also caused a flutter
in the ranks of the party, when he went to the OPA (Organisation
of Professional Asociations) induction of the new president and
made some comments there. Jayasuriya has always been suspected by
some elements of the UNP of being a cross-over candidate. However
much he insists that he will join President Kumaratunga only in
a National Government with the UNP, and not alone, he remains a
suspect and unfairly so. Some months back, he - and if not him,
Tyronne Fernando -- was said to have been offered the Prime Ministership
under President Kumaratunga. They both had a dialogue going with
the President and her Ministers.
over the past few years, both the PA and the UNP have been engaged
in campaigns to woo, if not buy over, MPs to form majorities in
Parliament. Not that it mattered at times. The President dissolved
a parliament that had a UNP majority. Over the past six months,
however, the UPFA, which started with a minority parliament, has
now raced ahead with a comfortable majority, and seem to be heading
for a parliament with a two-thirds majority i.e. 150 MPs. They have
the support of the CWC, sections of the SLMC that has broken away,
the JHU's tacit backing, and the only way now to make the 150 is
to win over more rats willing to jump ship from the UNP.
week's budget has been analysed as an 'election budget' by many
political observers. The burdens were heaped by taxes and gazettes
before the budget, but the UNP was unable to make political capital
out of it. That catch missed, they are waiting for the next, and
it seems clear, the President is looking for a life after her Presidentuial
term is over. Her first option will be to extend her term till 2006.
Save virtually taking to the streets and asking President Kumaratunga
to step-down, the UNP has no viable alternatives. Their legal experts
are studying the recent judgment in the TNL Case where two Supreme
Court judges, viz., retiring Justice C. Wigneswaran and Justice
Shiranee Tilakawardane held that her administering an oath of office
on then Prime Minister Ranil Wickremesinghe at the President's House
was a public function, and arguing that on that basis, her being
administered the oath of office for a second-term as President in
December 1999 presumes that her second six-year term began on that
date, and therefore should end by 2005 - not 2006.
point here is that there was one dissenting judgment as well in
this case, and whether the UNP will, in the circumstances prevailing,
be able to canvass this judgment before the current Supreme Court,
and win, is clearly doubtful.
the meantime, the UPFA is looking for ways and means to amend the
constitution if not by 150 MPs, at least by a simple majority (113)
and re-introduce a Westminster-style government, with the 61-year-old
President Kumaratunga back in the saddle as head of parliament,
and head-of-government. The doctrine of necessity has already been
bandied about as a means towards this end, and to circumvent the
UPFA will do this, only if it is certain it can get the peoples'
vote, because whatever gerrymandering they do with the constitution
(currently you require 2/3rds of parliament - 150 MPs - and a referendum
to amend the executive presidential system), they want to hold a
recent rush to ensure that only those with national identity cards
could vote at a future election was one indication that the UPFA
was having an eye on an election of sorts. UPFA lawyers are talking
on these lines. Opposition MPs are being taken over with plums of
office - the JVP understands the need to ignore its previous demands
for good governance by limiting the cabinet to 35. Now it is 38
the recent Rohana Wijeweera commemoration ceremony, despite its
problems with President Kumaratunga over ISGA (the LTTE proposal
for self-rule in the north and east), and the threat to privatise
the petroleum sector further, the JVP's godfather Somawansa Amarasinghe
told the party faithful, under no circumstances would they allow
Ranil Wickremesinghe to become the President of this country.
no mistake of that. But the UPFA government and President Kumaratunga
as head of it must think ten times before they can apply the doctrine
of necessity, to which also applies the doctrine of implied mandates.
There is dangerous precedence that could ultimately backfire on
a government relying on such sketchy doctrines.