3rd September 2000

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Political somersaults and the voter

By H. Chanda Dhamma

Gone forever must be the days when politics was all about loyalty to one's party and it's leader. Today, politics is all about opportunism and this general election more than any other has thrown up a multitude of political somersaults, so much so that the average voter must be really confused as to who is on which side.

This unsavoury spectacle of political pole-vaulters jumping across to the other side was started this time by none other than the indefatigable Ronald Joseph Godfrey de Mel, Ronnie to all. Then, the parliamentary debate on the draft constitution saw cross-overs from Dixon J. Perera, Harindra Corea and Mervyn Silva.

Last week saw Dinesh Gunawardena who was at the forefront of agitation against the constitutional reforms pledge support to the PA, prompting Gunewardena's erstwhile colleague, S. L. Gunasekera of Sihala Urumaya to retort with disdain that the son of the Boralugoda Lion has become a kitten at Horogolla Walauwa ("Boralugoda Sinhayage putha Horagolla Waluwe poos petiyek wela!").

Then, there was the exit of Sarath Kongahage from the UNP amidst allegations of complicity in the Batalanda 'conspiracy'. Srimani Athulathmudali who only days ago signed an electoral agreement with the PA reneged on that pact and leftists Vasudeva Nanayakkara and Wickremabahu Karunaratane buried an old hatchet to announce a no-contest pact. Then, Sarath Amunugama and Susil Moonesinghe, the former having pledged to capture the UNP leadership from Ranil Wickremesinghe, obediently joined the SLFP.

So, the scramble for nominations is on to try and become members of what the editorialist of this newspaper referred to last week as the "New Aristocracy". This aristocracy of the new millennium is an elite class of people with power, privileges in the form of vehicle permits, telephones, meals, and overseas trips all paid for or subsidised by the state and of course, the unspoken potential to make a quite a few millions on the sly, with a lifelong pension thrown in for good measure!

But even among this herd of political monkeys performing their tricks, those who stood out were those from the Sri Lanka Muslim Congress (SLMC) who were jumping from the SLMC tree to the National Unity Alliance (NUA) tree, making ugly faces at Transport Minister A. H. M. Fowzie in the process.

It is perhaps only in a vibrant five star democracy such as Sri Lanka- or may be in Libiya or Iran!- that one could own two political parties and can use the symbol of one for the other and have a choice of which party one wants to run for in an election- which is what the SLMC and the NUA of Minister M. H. M. Ashraff is doing, holding President Chandrika Kumaratunga and her Peoples' Alliance to ransom in the process.

The bottomline of the Fowzie-Ashraff dispute (see box for the sequence of events) was that the PA caved in to Mr. Ashraff's demands rather lamely. The President publicly disowned Minister Fowzie's comments and apologised profusely to the SLMC leader. This is an unprecedented event in Sri Lankan politics where the head of state apologises to a subordinate cabinet minister, publicly at that, but then the government of Chandrika Kumaratunga is now renowned for making history!

But not all in the PA, particularly those in the SLFP are happy. When President Kumaratunga sent Ministers S. B. Dissanayake, D. M. Jayaratne and Mangala Samaraweera to try and pacify the SLMC leader he snubbed them, leaving them to cool their heels for forty five minutes saying he was 'busy'. Such was the arrogance of the man and some ministers whose sympathies are with Minister Fowzie were heard to say that Mr. Ashraff must never ever be considered for a vice-presidency under a new constitution, because he was sure to get out of control if he was given half a chance.

The Muslims in the SLFP are also furious that their de facto leader, Minister Fowzie was sold down the drain to accommodate Mr. Ashraff and this may reflect in the final analysis, with the PA losing important votes in areas with significant Muslim populations.

The Fowzie-Ashraff battle has also divided the Muslims rather unnecessarily and this is underscored by Former Zahira College Principal and Ex-ambassador to Saudi Arabia, Javid Yusuf, a one-time SLFP organiser for Colombo North and a much respected lawyer deciding to contest as the leader of the Liberal Party in the Colombo District to use that platform to criticise the opportunistic politics of some Muslim leaders.

The real aftermath of the SLMC dispute is that the Congress will contest under the NUA banner in 10 districts - running against PA candidates. Any members elected in these districts will be available to the SLMC to bargain with either the PA or the UNP, depending on which party offers more to the SLMC.

In Batticaloa, Digamadulla and Trincomalee, the SLMC contests under the PA, thereby saving face for Mr. Ashraff if his performance there is poor.

That is an important safeguard for the SLMC leader because there is indeed some truth in what Minister Fowzie says- that Mr. Ashraff's popularity in the East has been dwindling steadily since 1994. So, strategy-wise, full marks to Mr. Ashraff and none for Madam President!

This reality has dawned on President Kumaratunga, S. B. Dissanayake & Co. but they know that with every seat being significant to clinch the magic number of 113 seats, they are in no position to antagonise Mr. Ashraff for that will be political suicide, even if he manages to win only two or three seats. Hence the frantic efforts to woo the man who some accuse of being a fanatic.

The Janatha Vimukthi Peramuna is naturally upbeat with all these developments. They feel that if they manage anything more than five seats, they- and not Mr. Ashraff- could end up as king (or queen) makers. Given that the PA managed only a one seat majority in Parliament even in 1994, it is a safe bet that both the PA and the UNP will poll less than a hundred seats at this election, so whoever wants to form a government must necessarily have the support of the JVP- or so is the thinking in the red camp and it is an argument that is difficult to counter.

The political battlefield of Sri Lanka is one in which there are no permanent friends or permanent enemies- only permanent interests. And those interests in the five weeks to come will drive diverse political forces towards each other.

We have already seen the UNP and the JVP, unlikely allies only months ago, work together to defeat the ruling PA in the Western provincial council. Will that scenario be repeated in the national legislature?

We did say last week in this column that Mr. Ashraff will return to Sri Lanka and have a chat with the President at Temple Trees and return to the PA- and that is precisely what happened.

But even we cannot foretell what will happen, come the eleventh of October because politics remains the art of the possible and we do have some great artistes entertaining us now, though we little realize that we are paying too high a price for that entertainment!

Ashraff-Fowzie crisis

August 20- Minister M. H. M. Ashraff states in a press interview that it is he who decides the winner in the upcoming general elections claiming he could win 11 seats if the Sri Lanka Muslim Congress contests on its own.

August 22- Minister A. H. M. Fowzie responds challenging Mr. Ashraff to contest on his own and win more than five seats, offering his resignation if that happens.

August 23- Minister Ashraff hand-delivers the resignations of himself and Deputy Ministers M. L. M. Hisbullah and U. L. M. Mohideen to Temple trees and leaves for Mecca in the early hours.

August 24- Mr. Ashraff announces from Mecca that he would rejoin the Peoples' Alliance only if Minister Fowzie is removed from the Cabinet. The resignations of the SLMC members have not been accepted, government announces.

August 25- The politburo of the SLMC decides to contest the general elections on its own.

August 28- SLMC general secretary Rauf Hakeem and National Unity Alliance (NUA) general secretary M. L. M. Hisbullah resign, purportedly on instructions from Mr. Ashraff but speculation is rife of a split in the SLMC.

August 29- The SLMC leader returns to Sri Lanka, refusing the official vehicle sent for him at the airport. He sends a 50-page letter to President Chandrika Kumaratunga outlining his stance.

August 30- Mr. Ashraff meets President Kumaratunga for talks at which he insists on his demands.

August 31- President Kumaratunga apologises to Mr. Ashraff and promises "disciplinary action" against Mr. Fowzie. Government announces the PA has reached an agreement with the SLMC to contest three electoral districts. The SLMC is to contest ten other districts as the NUA.

Focus on Rights

Bringing the draconian pta to order

By: Kishali Pinto Jayawardene

When the Prevention of Terrorism (Temporary Provisions) Bill was presented to the House on 19th of July, 1979, by far the best analysis of the law was by an old hand from the North Central Province. Then a member of the wafer-thin opposition, Mr. Maitripala Senanayake's plaintive complaint was that they had been given copies of the Bill only that morning itself. He went on to become even more gloomily prophetic.

Pointing out that the Bill contained some thirtyone clauses reproducing parts of legislation that had been condemned by the Jayewardene government previously such as the Criminal Justice Commissions Act and the 1971-77 emergency regulations, Mr. Senanayake warned thus; "The Bill does not seek to deal merely with violence and terrorism in the North. It is of much wider application and seeks to create a permanent state of emergency throughout the country free of parliamentary control - (its provisions) are calculated not merely to stifle but completely crush all political agitation in the country."

Events since then have, of course, proved Mr. Senanayake correct. The PTA provisions, (the law was made permanent in 1982), became infamous for their use by successive governments to restrain not only suspected militants but also political opponents and selected others in a manner that is over and above the ordinary law.

Several of its provisions were particularly troubling. Thus, Section 6(1) allows arrest of any person involved in any unlawful activity. Section 7(1) allows detention up to seventy-two hours and thereafter orders that the detainee be produced before a Magistrate who is then compelled to remand the detainee.

Judicial supervision, even to this extent is, however, not necessary if the Minister of Defence makes a detention order under Section 9(1) of the Act. Such an order can be extended for a period not exceeding three months at a time. The PTA also makes admissible confessions to police officers above the rank of assistant superintendents.

Not surprisingly, the expansive nature of its provisions led to widespread abuse. And unlike in the case of Emergency Regulations, the provisions of the PTA had, up to-date, not been really subjected to critical judicial scrutiny restricting the width of their application.

Twenty years and more to its enactment, we now see a welcome intervention by the Supreme Court. And that this is in none other than a rights plea filed by an officer of a law enforcing arm of the State is undoubtedly ironic.

R.P.A.L. Weerawansa, an Assistant Superintendent of Customs was taken in by the CID on the 30th of April, 1996 under Section 6(1) of the PTA. He was detained thereafter up to the 2nd May, 1996 under Section 7(1). From 2nd May to 2nd October of that year, he was detained by ministerial orders under Section 9(1). Thereafter, he was transferred into the custody of the Customs and detained from 3rd October to 31st December under a magisterial remand order.

His argument that his liberty had been deprived in a manner contrary to constitutional provisions was accepted by the Court in early August with a bench comprising Justices Mark Fernando, A.R.B. Amerasinghe and Ranjith Dheeraratne granting him substantial compensation of Rs.300,000.

This judgement of the Court is important in several respects. In the first instance, it was held that the evidence put before the Court did not establish the CID defence that Mr. Weerawansa had aided and abetted the illegal importation of containers into Sri Lanka containing weapons and light aircraft parts and their release from the Port on forged documents. There was no reasonable suspicion established of any unlawful activity on his part and therefore his arrest was wrong. His subsequent detention was even more problematic.

In reasoning that would be crucial for human rights defenders in this country, the Supreme Court held that the provisions of Section 7(1) authorising detention apply only to a valid arrest made under the previous section. Where the arrest has been wrong as in this instance, the condition imposed by Article 13(2) of the constitution that the arrestee be brought before a judge of the nearest competent court according to procedure established by law, would continue to apply. This had not happened and therefore the first period of detention of Mr. Weerawansa was also wrong.

Meanwhile, what of his subsequent detention by ministerial order, which in the present case, meant an order by the President herself where she, "has reason to believe or suspect" that such person is involved in unlawful activity? Here again, the essence of judicial reasoning was that there must not only be subjective but also objective reason for such belief.

In this case, the continued detention had been at the instance of the CID, which merely informed the Defence Minister of their wilfully false and unreasonable conclusions, thereby misleading her. Thus, there had been no independent exercise of judgement by the Defence Minister. Again, a three-months' extension was granted on request.

All these actions flouted constitutional guarantees of liberty, including past judicial warnings that detention orders, whether under the PTA or emergency, should not be made mechanically.

What becomes even more interesting later on is that the Court uses provisions of the constitution, including the directive on Principles of State Policy, to assert that judicial recourse should be added to the provisions of the International Covenant on Civil and Political Rights, (to which Sri Lanka is a signatory), when dealing with issues of personal liberty.

Thus, though a person may be taken in under Section 9 (1) of the PTA or any other provision which specifically dispenses with production before a judicial officer before the making of a detention order, there is an obligation to produce such a person after the making of such an order.

Such a production is not merely cosmetic. On the contrary, the judicial officer would then be able to make his or her own observations about the ill- treatment of the detainee or the conditions of detention and so on.

During his entire period of detention, Mr. Weera-wansa had not been brought before a judicial officer, thus violating his constitutional rights. In addition, it was held that his transfer to the custody of the Customs was a further violation of his rights. The CID was also rapped over the knuckles for its failure to inform the Human Rights Commission of the initial detention of Mr. Weerawansa or the subsequent transfer of his custody.

Meanwhile, there is yet more to come in this August judgment. The Supreme Court, in considering the arrest and detention of Mr. Weerawansa, specifically concludes that the later remand orders by the Magistrate of the Harbour Court under the ordinary law, was in violation of Mr. Weerawansa's rights. The latter had been remanded under several such orders even though the Magistrate or the acting Magistrate did not visit or communicate with him.

This offended a basic constitutional safeguard in Article 13(2), that the judge and the suspect must be brought face-to-face before liberty is curtailed, which was not an obligation that could be circumvented by producing reports from the police. And, confirming previous judicial thinking, actions of the Magistrate in making remand orders was stated to be open for scrutiny by the court for violation of fundamental rights.

The remand orders made by him were not judicial acts. It was the executive which had the custody of Mr. Weerawansa from 3rd October,1996 and so his detention was by executive or administrative action. In toto therefore, the remand orders also infringed the complainant's fundamental rights under the Constitution.

From the perspective of all those who had been agitating for the PTA Act to be called to order throughout all these years, the relief afforded to Mr. Weerawansa has undoubtedly come none too soon. The judgment would also be of value for activists lobbying for judicial action to be included within the phrase, "executive and administrative action" in the Constitution Bill and for minor judicial officers in terms of the strict duty of care imposed on them.

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