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8th March 1998

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Point of view

U.N.P proposals - a Trojan horse

By Dr. Piyasena Dissanayake, (Secretary, National Joint Committee)

Mr. Ranil WickremasingheThe U. N. P. has at last, under pressure from Minister, G.L:Peiris, disclosed a part of its own proposals relating to the Government's proposed Constitutional proposals. This is said to be only the first instalment but what has been revealed sufficiently shows some of the underlying policy considerations and the basic thinking of the UNP in regard to this matter. This latest instalment falls into two parts. First a statement on some broad principles and second some critical amendments to the Government's Proposals.

'The UNP's public declaration states that

"The UNP believes in the sharing of power amongst all communities at the Centre. A11 Communities must be adequately represented in the legislative, the executive and the administration of the country as a whole. Accordingly it recommends:-

(a) A second Chamber where the minority communities would be adequately represented,

(b) Adequate representation for minorities in the Cabinet of Ministers,

(c) A President and two Vice Presidents to represent the three major Communities.

But infinitely more dangerous to the Nation is the portion of the UNP concepts which have, from time to time, been pronounced by its leader and also announced and publicly declared by party sources though they do not appear in this release.

It is sufficient to deal with one such matter and a matter of the gravest importance in this connection. Mr. Ranil Wickremesinghe, while jettisoning the concept of a unitary state (which is in the Constitution and also constitutes the present law as construed by the Courts.) has opted for a strange and unusual formula - a "United and indivisible state". This seems to be only an elegant variation of Professor G.L. Pieris' memorable expression "indissoluble Union of Regions."

As critical amendments to the Government's Constitutional reform provisions, the UNP has suggested the following:

(a) An Independent Election Commission,

(b) An Independent Public Service Commission,

(c) An Independent Police Commission,

(d) An Independent Judiciary,

(e) A Constitutional Council.

This statement indicates the motives and reasons for these suggestions. Headed "A new political culture" it states -

"Never before in Sri Lanka's long and proud history has the nation been faced with a crisis as deep and pervasive as the one we are enduring today. It is a crisis that affects all our institutions of governance and has spread cancer - like through our Society affecting the life of each and every individual. It is the disease of politicization which has the effect of distorting and perverting our practice of democracy. It has resulted in inefficiency, incompetence and corruptions in administration, in the unworthy being selected in place of the worthy; in merit being over looked for the spurious badge of loyalty; and for honourable conduct and integrity being superseded by patronage and sycophancy. The most serious long term consequences of this is that the people are disenchanted of the process of democracy itself."

This statement is admirable but only in so far as it goes. This resulting situation is the outcome of the acts of these two parties - (UNP and SLFP (PA), who have vied with each other in outdoing the other to hold on to power regardless of all moral principles. In this utterance about politicization, the role of the politicians and the contribution they have made to this mess, is somehow muted and subdued.

But there is a more important and critical matter which these statements by and large, appear to ignore or push to the margin. That is the demand of the Tamils for Eelam. Depoliticization of the administration is one thing; what does the UNP say about the Tamil demands for a separate state or in regard to its step by step approach to this goal? Hardly anything. The UNP stand and intention on this issue is clouded by the verbiage of this statement which could have been ignored as largely irrelevant if not for the fact that it contains a hidden agenda most dangerous to our country, as dangerous, if not more than the P.A. Package.

But for the moment, even taking these UNP proposals at their face value for what they mean, it appears that they constitute a dagger aimed at the very heart of the Sinhala people where even the Centre would be so communalised and endangered and the Sinhalese would lose all control of it too. In this country, the Sinhalese with 74% of the population are the major community. The others are minorities with 5% to 12%. There are no "three major communities" to begin with. Further, while there are numerous Tamil and Muslim Communal parties the UNP and the SLFP for whom the Sinhalese must vote, are the only non-Communal parties. The introduction to and the institutionalising of communal politics at the centre is putting the clock back 100 years and would see to the disappearance of the Sinhala people which has up to now been identified with the Government of Sri Lanka.

While the Leader of the Opposition seems to be against the linkage of the Northern and Eastern Provinces, he has refrained :from stating that Sri Lanka should continue as a unitary state. He has shied away from using the word "Unitary" and in lieu of that word he has been consistently using the expression "united and indivisible, namely that Sri Lanka should be a united and indivisible state. Now the words 'united' and 'unitary' are poles apart. Minister G. L. . Pieris in his draft has used the terms "indissoluble Union of Regions". He has been at pains at the early stages to explain that this expression and the word 'unitary' mean one and the same. But he could not maintain that for long and the public are more wise to their proper meanings.

Ranil Wickremesinghe's statement is no less reprehensible, and it is interesting to see how this development has taken place. We know that until recently the UNP refrained. from adopting a stance in regard to the Government's proposals . It was frightened of opening its mouth fearing it would lose the Tamil and Muslim votes at the next elections. Now it has apparently on legal advice found a mode of deception for the Sinhala people which it considers safe.

A recent judgement of the Supreme Court has caused confusion in the minds of the public. The judgement is S. C. Appeal No. 41 of 1996 of a bench of three judges. In this case, the Governors of the North Central Province and of the Sabaragamuwa Province, acting on the direction of the President purported to dissolve these Provincial Councils which were under the control and management of the UNP. Article 154 (8) (c) and (d) which empowers a Governor to dissolve a Provincial Council states.

(c) The Governor may dissolve the Provincial Council.

(d) "The Governor shall exercise his powers under this paragraph in accordance with the advice of the Chief Minister. So long as the Board of Ministers commands, in the opinion of the Governor, the support of the majority of the Provincial Council.

In these cases the Chief Ministers who had the support of the Councils were against the dissolution but the state argued basing itself on the majority judgement in the earlier case that the Executive power vested in the President under a Unitary State overrode the above provision.

In the Thirteenth Amendment judgement Chief Justice Sharvananda over and over again stressed the position that although the Governor is required by article 154 F(1) to exercise his function in accordance with the advice of the Board of Ministers yet as the representative of the President he is to exercise his discretion on the directions of the President. The Court held that the President retained the Executive power to give directions to the Governor and the Governor is bound by such directions superseding the advice of the Board of Ministers. Chief Justice Sharvananda also said that "there is no gain saying the fact that the President remains supreme or sovereign in the executive field and the Provincial Council is only a body subordinate to it." In fact, it was the view of the Supreme Court that in all spheres of activity, i.e. legislative, executive, judicial, the Government was supreme notwithstanding the Provincial Councils (Vide pages 318 - 327 : 357 - 359)

The minority judgement took the view that the Thirteenth Amendment affected the unitary nature of the state and could only be enacted by a 2/3 majority in Parliament and by a majority at a Referendum. It specifically pointed to the provisions of Article 154 B (8) as indicating the vesting of a portion of the sovereignty of the state in a peripheral unit thereby compromising the unitary nature of the State.

These two contradictory views were squarely before the bench of three judges and they came to the conclusion that while the President had no power to give directions to the Governor to dissolve the Provincial Council and the dissolutions were void. Yet it cannot be said that because Parliament had imposed procedural restraints on the manner in which executive powers may be exercised, the President's position, as the person exerting the executive power of the people was undermined. For it is acknowledged that procedural restraints on the exercise of power did not limit supremacy in the relevant sphere of activity. (Vide P.22).

This three-judge decision acknowledges, contrary to Chief Justice Sharvananda's broad statements (that in all spheres of activity legislative, executive or judicial, the Government of Sri Lanka was supreme) that the President's executive power and the Governor's discretionary powers were subject to the specific vesting of powers in the Chief Minister, in the Board of Ministers or the concurrency of a Provincial Council. This appears to be one of the governing factors of the minority judgement in the Thirteenth Amendment case. That when a power is wholly taken away from the President and effectively vested in the Chief Minister and when that power has to be exercised by the Governor at the bidding of the Chief Minister and when the Board of Ministers and the electors are given a vested interest in that decision, could one by any stretch of imagination say that this is a power that still remains with the President but only subject to some conditions? The argument of the Attorney General that the President remains supreme in the executive field was rightly rejected. That power has passed from her to the Provincial Council. There is no question of any procedural limitation. It is a matter of substance.

Only the Supreme Court can explain the true legal position about this three-bench decision but it seems that it lends itself to a number of interpretations. One thing must be made clear and this will surely be acknowledged by these learned and experienced judges that is, that a three bench decision cannot overrule the nine judge decision in the Thirteenth Amendment case. There the ruling that the Thirteenth Amendment did not affect the unitary nature of the state will stand and continue to do so. That will continue to be the law of the land. If the decision in the judgement in the Thirteenth Amendment case is properly overruled, by another bench of equal or bigger status, then one of the effects would be to totally invalidate the Thirteenth Amendment because it had originally been passed without a Referendum, the proper constitutional procedure for doing so.

The reasoning in this three bench decision lends itself to the view, rightly or wrongly, that power has passed to the units and the Provincial Councils are autonomous or semi - autonomous.

This three bench decision, the UNP feels, could now be interpreted as a legal statement that the country is in fact now divided into Provinces. Hence the calculated using of the word "unitary" and the adoption of the words united and indivisible. By this manoeuvre the UNP probably feels that it can achieve all its objects, past and present.

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