Doctoring 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.

It 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.

Jayewardene 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.

It 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.

The 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.

As 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 or 2006.

If 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.

The 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 they are:

She 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.

Then, 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.

And 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.

If 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?

Then 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.

So, 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 all round.

Wise 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.

In 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'.

Whether 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.

In 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."

The 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."

Her 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.

Helgessen 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.

President 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.

Whether 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.

Elaborate 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.

Kumaratunga 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."

She 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?

Ever 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 the Government.

She 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.

The 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.

The 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.

Well, 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 crossing over.

Many 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.

Rohitha 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.

And 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.

In 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.

Earlier 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.

And 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.

This 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 the next.

Meanwhile, 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.

The 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.

In 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 present constitution.

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 referendum.

The 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 with Bogollagama.

At 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.

Make 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.

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