20th July 1997


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With no food, no shelter where do they go?

By S. S. Selvanayagam

Some 200,000 people displaced by military operations in the Wanni region are running desperately short of food and shelter with some of them living under trees or just in the open while children asking for milk are given one meal of kanji a day, aid officials said.

They said despite government claims of several lorries transporting food to the refugee camps, little appeared to be reaching the hungry people in the camps which were bursting at the seams. Some of the refugees had been displaced several times in the aftermath of several operations and they were wandering around like nomads.

One official said Oddusuddan and Mankulam were virtually towns without people with a mass exodus in the face of heavy shelling from Nedunkerny and Omanthai.

Five days of horror

A youth who alleges he was blindfolded and tortured at the Chavakachcheri Army camp has been given leave to appeal by the Supreme Court in a fundamental rights application.

The youth S. Arulrajah of Muttuvil in Jaffna says during his detention at the army camp from February 24 to March 1 this year he was beaten with clubs and suffered severe fractures in his arms and legs.

He is now warded at the hospital of the Magazine prison in Colombo.

The youth has appealed to the Supreme Court to order his release after an examination by the Judicial Medical Officer and for Rs 200,000 as compensation.

High marks for A level changes

By Kshalini Nonis

New subject combinations and the reduction of A level subjects from four to three plus an aptitude test as proposed by the Higher Education Ministry this week have been generally welcomed by school heads.

In a circular to all schools the ministry announced major changes to make the A level more practical, job oriented.

This came in the wake of a report that a large majority of the 50 A level subjects were not relevant for the current needs of the country.

The Royal college principal S. H. Kumarasinghe told The Sunday Times the reduction in the number of A level subjects was good and practical as it would lessen the mental strain on students. However he said technical problems might arise over the new A level subject combinations, mainly due to the lack of teachers.

But he hoped such issues would be gradually ironed out.

Wesley College principal N.A.B. Fernando said he believed the changes would enable students to reach higher levels of achievement because of the flexibility in the choice of subjects.

He also welcomed the aptitude test.

According to the changes there will be 30 periods for the three chosen subjects, six periods for English and four for whatever subjects the respective principals deemed to be necessary.

Methodist College principal Priyani Fernando also welcomed the reduction in the number of subjects and the new emphasis given to English.

She however, cautioned that the changes should not be rushed through.

The Principals of Darmashoka Maha Vidyalaya and Princess of Wales Maha Vidyalaya also welcomed what they saw as the re structuring and re-orientation of the A Level.They also felt the aptitude test was a step in the right direction.

Health run today

The eighth National Health Run will be flagged off at the Galle Face Green at 7.00 am today.

The run is organized by the Sri Lanka Anti- Narcotics Association. This year, participation has exceeded 1000 and schools from remote areas are taking a lead in the run.

Prizes for the winners will be distributed at 10 am and will feature some cricketers taking part in the Asia Cup.

The run is organized to promote awareness on the dangers of drug abuse among youth.

Bodyguard nabbed on the run

An artillery regiment soldier and bodyguard to Deputy Defence Minister Anuruddha Ratwatte has been arrested in Kosgoda after he deserted, police said.

They said the deserter had various types of live ammunition and gun powder in his possession.

The judges and the world of politics

Former Bar Association President H. L. de Silva PC
presented a paper dealing with problems facing the
judiciary at the 1990 National Law Conference. The
Sunday Times last week published the first part of
the speech by Mr. de Silva who is now Sri Lanka's
Permanent Representative at the UN. Today we
publish the concluding part of it

Continued from last week

In certain key areas of the law therefore political principle do influence Judgments without the Judges being necessarily open to the charge of political partisanship.

But once appointed to office, Judges are thereafter precluded by virtue of the nature of their functions and the need for judicial independence to cease to be affiliated to any political party or engage in politics and refrain from even giving the impression of partisanship or bias. At the same time it has also to be recognised that a Judge does not upon assuming office jettison his political philosophy or his general perceptions and viewpoints on social and economic questions which have become part of his mental make-up over the years. Yet another feature of the Western democracies is that since the higher echelons of the legal profession are mainly from the upper middle class and from relatively affluent groups, the Judges who are drawn from this social group represent a narrow class interest that tends to be reflected in the development of the law through the judicial process.

Certain scholars have noted the elitist character of the Judiciary especially in Britain and the US. and question the desirability of a judicial structure that is unrepresentative of the general community whose interests the legal system is expected to subserve. From these twin characteristic features of the Judiciary the conclusion may he drawn that despite the constitutional doctrine, judicial independence and the safeguards provided against political interference we have to reckon with the undeniable fact that in certain crucial areas political predilections of Judges do often of their own motion influence and determine judicial decisions. Sometimes the exercise of a robust independence in cases of political significance is fraught with unpleasant consequences as shown in contemporary events in Sri Lanka.

The extent to which considerations of policy and political expediency do sometimes affect the determination of issues where there is a conflict of the competing interests between the right to personal liberty that is constitutionally guaranteed and the preservation of law and order, are brought into sharp focus in cases of arrests and detention under emergency regulations made by the Executive. To illustrate this point, Article 155(2) of our Constitution holds out a clear assurance that emergency regulations will not be made having the legal effect "of over-riding, amending or suspending the provisions of the Constitution". This would suggest that that can only be done by the Legislature through express Constitutional amendments or through the enactment of legislation passed by a special majority and not by the Executive. But this assurance is virtually negated by the provision in Article 15(7) that defines the word "law" so as to include emergency regulations as well. This constitutional anomaly is compounded by the fact that grounds under which fundamental rights may be restricted by "law" thus defined are so broadly and widely stated that nearly all the important constitutional freedoms under Articles 12, 13(1), 13(2) and 14 are capable of being gravely imperilled through restrictions imposed for meeting the just requirements of the general welfare of a democratic society".

This avenue of possible curtailment virtually covers the vast plenitude of law-making powers and is wholly a political question. How can Judges be expected to determine the validity of emergency regulations which suspend these important fundamental rights and liberties which the Executive claims were made to meet the "general welfare"? This is not a problem that is confined to the validity of Emergency Regulations but involves even Acts of Parliament.

Especially, when there are prolonged periods of public emergency, emergency regulations have the effect of virtually negating these fundamental rights for the duration of the emergency. Orders made under these regulations empowering executive action have far-reaching consequences in respect of individual rights and the formulation of such executive powers in subjective terms if uncontrolled and immune from effective judicial review would spell the death-knell of large areas of human freedom.

In the vast majority of the cases judicial decisions have seldom, if ever, in examining the vires of such regulations interfered with executive discretion in this area. In balancing the competing interests of national security and human liberty there is always an element of choice and discretion which is affected by underpinnings of political ideology. In cases which seek to challenge the very grounds for either declaring a state of public emergency or its continuance the judges have almost consistently declined to regard the question as being justiciable on the basis that the reasons impelling such actions are sometimes themselves sensitive issues of public security which cannot be divulged being the responsibility of those elected to govern.

But on one notable occasion the judges who constituted the members of Special Presidential Commission in dealing with the declaration of emergency under the Public Security Act appear to have been undeterred by such considerations of judicial restraint or heeded the constitutional doctrine of the collective responsibility of the Cabinet to Parliament and the responsibility cast on the elected Head of Government. Nor were they deterred by the consideration that continuance of the emergency needed the express approval of Parliament and ventured to hold Prime Minister Mrs. Sirimavo Bandaranaike guilty of abuse of executive power in advising the Governor-General to declare a State of Emergency under the Public Security Act for a period longer than what was ex post facto considered necessary. Having so determined the Judges proceeded to recommend to the Government that succeeded the United Front Government the deprivation of Mrs. Bandaranaike's civic rights. The political consequences of that decision were of enormous significance. The extent to which that decision affected the cause of politics in Sri Lanka and was responsible for the political cataclysms of the decade that followed is a fit subject of study for political analysts of the future. The proper use of political power may from one point of view be a legal question but is undeniable that it is also a political question. How can one disentangle one from the other? It is significant that when the validity of the determination of the Special Presidential Commission itself was sought to be challenged on the ground of bias through a Writ of Certiorari the Supreme Court which appeared to be greatly inhibited by the doctrine of Parliamentary Supremacy declined to enter upon an inquiry into the merits of the allegation on the ground that when Parliament (after proceedings was instituted in the Supreme Court) passed a resolution imposing civic disability on any person found guilty by the Commission the Court could not pronounce on the validity of such resolution. It took this view notwithstanding the fact that the recommendation upon which the resolution was based was itself alleged to be null and void on the view taken by the House of Lords in the Anisminic Case.

If the traditional view as to political questions was to prevail the judges of the Special Presidential Commission, ought not to have upon constitutional considerations investigated the validity of the several proclamations of public emergency made on the advice of the Prime Minister because Parliament had on each such occasion granted its approval for the declaration of the emergency. One wonders what would have been the position had there been a general election and a change of government in 1982 and those MPs who voted for the resolution imposing civic disability were themselves accused of abuse of power before another Special Presidential Commission. Would there have been a similar exhibition of judicial valour? This case illustrates the dangers and contradictions that follow when judges are beguiled to enter the political thicket.

In other areas however the political element in judicial decisions may be less obtrusively present but nevertheless its existence cannot be excluded.

I refer here only to situations where the political element is significantly present. I refrain for obvious reasons from commenting on particular legal problems of a conceptual nature that are embedded in the Elections Law, that arise for determination in the trial of election petitions. But there are legal questions which are heavily overlaid by politics and the determination of these questions are central to the whole democratic process in Sri Lanka. The question is can they be decided upon considerations wholly divorced from politics?

Likewise it would be ideal to deny the extent to which the political element was present in the question of constitutional validity which arose in the case of the Thirteenth Amendment to the Constitution. The whole concept of devolution of power is pre-eminently a political one. The question whether the extent and degree of its introduction into a unitary form of government brings about such a fundamental change of structure as to all its unitary character as would require approval at a Referendum of the People cannot be an exclusively legal question. It is integrally bound up with the question of the sovereignty of the People which the Constitution declared to be inalienable.

The question whether or not this will need approval at a Referendum of the People was one which could not be answered except upon a clear understanding of this concept which is a politico-legal question. Yet the majority judgement in the case skirted the question as though it were the bramble bush or the prickly pear.

The Full Court decision of the Supreme Court in regard to its constitutionality revealed a sharp division of opinion and it was by the narrowest of margins that the Court ruled that the Amendment was permissible without the need for approval at a Referendum as provided for by Article 82.

The decision revealed two fundamentally different approaches to the basic questions that arose for decision. The first question was whether the proposed amendment altered the unitary character of the Constitution by introducing certain new features that formed part and parcel of a federal structure. The second related to the partial divesting of legislative and executive power by those in whom they were vested in 1978 and providing for their exercise through Provincial Councils and Provincial Ministers respectively and the most vital question whether such alterations were in effect an alienation or, erosion of sovereignty as conceived by the framers, which necessitated adoption of the Referendum procedure.

The majority judgement in considering these matters adopted literalistic interpretation and a formalistic approach, answering these questions in the negative. The dissenting minority adopting a practical approach, acutely sensitive to the political issues, looked at the conditions on the ground and considered that the result would in effect be a "federal situation" basically different from the kind of constitutional structure that was originally conceived and that the legal effect of the exercise of both legislative powers, and executive powers at the Provincial level was in substance an alienation of sovereignty as conceived in article 3. Considered from any point of view having regard to the circumstances of its enactment, it can be scarcely doubted that if the Thirteenth Amendment was to acquire any kind of political legitimacy through a consensus it was one which required - approval at a Referendum.

But anybody acquainted with the political climate in the country would easily have foreseen that omission of the proposed Constitutional Amendment to a Referendum of the People would have necessarily entailed a rejection of the whole proposal. If that were to happen it was almost certain that the Government in office would have had to resign as it would not have been able to give effect to the terms of the Indo-Sri Lanka Accord of July 1987 and that may have led to unforeseen consequences as far as the whole country was concerned and might have even have brought about an armed intervention by India. Were these the inarticulate fears that influenced the majority Judges who agreed with the Chief Justice without an exposition of their own reasons in their decision? The dissenting minority led by Justice Wanasundere on the other hand were acutely sensitive to the political environment in which the 13th Amendment was proposed and greatly apprehensive of the dangers of separatism in the context of an amalgamation of the Northern and Eastern Provinces and the threat to national and territorial integrity and not merely to a unitary form of government. Were their fears for the security of the majority community in the country who were a minority within the amalgamated Province unrealistic in the context of subsequent events? Had there been a Muslim Judge on that Bench he might have given expression to the fears of the other ethnic minority in the Province and the decision would have been the other way. The political aftermath of that decision and the carnage that eventually followed has likewise cast a pall of gloom over the viability of the whole Constitutional experiment. This decision raises the fundamental question whether such crucial political decisions for the future of this country can be left to Lawyers and Judges.

The Government in office was able to survive through a wafer-thin majority of one in favour of its enactment without prior approval at a Referendum of the People. President Jayewardene soon afterwards impliedly castigated the dissenting minority when he commented on judicial pronouncements in a subsequent speech which cast doubt on the Government's own commitment to judicial independence. Justice Wanasundere who was the most Senior Judge next to the Chief Justice was bypassed in the appointment of a successor to the retiring Chief Justice.

The suppression of judges whose judgments were politically unacceptable was of course nothing new. It did occur on wider scale a decade earlier in 1978 with the new Constitution when appointments were made to the Supreme Court.

The Constitution professedly sought to provide for an independent Judiciary, but ironically enough by Article l63 of the same document it also wrote its epitaph. If there be a moral to be drawn from episodes of this kind it is that the Judges who, un-mindful of the words of Chief Justice Marshall, are sometimes obliged to enter the political thicket must at least beware of the denizens of the jungle of predatory habits.


Going ahead with devolution package

By Frederica Jansz

No issue in Sri Lanka's contemporary political history has generated such debate as the devolution proposals which have been described by some political analysts as the last chance for peace in Sri Lanka, .

The proposals, said to be promising a lasting peace, received the support of PA Parliamentarians this week at a workshop in Kalutara..

Not only the devolution package that received the endorsement of the PA parliamentarians but also the government's war effort. The MPs backed the government policy of 'vigorously' pursuing the war effort against the LTTE with the firm determination of securing victory.

Among those who supported the government's policy of pursuing the war while seeking a political settlement were a group of PA parliamentarians who in a statement in April this year urged the parliamentary select committee to include the LTTE in any deliberations on the devolution package. Thus their support for the defeat of the LTTE, some political analysts say, goes against the spirit of their statement.

Political analysts say President Kumaratunga 'cracked the whip' on MPs, bringing them in line with govt.'s thinking even if it meant going against their conscience.

The gist of the matter or the message is that devolution of power will definitely take place and the MPs are expected to support the government in that effort. It remains of paramount interest that these MPs understand the proposed reforms in a clear perspective and carry this message to the people.

Dr. S. Narapalasingham, an academic, in an article last year had said the ongoing debate on the legal draft of the devolution proposals had not introduced any significant new arguments against the package.

"The same old illusory reasons, which sabotaged previous attempts to devolve powers continue to be advanced," he said.

Dr. Narapalasingham said that "by retaining central control over all the major affairs — on which the safety, security, identity and the social, cultural and economic advancement of the minority communities depend — it is presumed that separation could be prevented."

But once again the opposition from some Sinhala parties and institutions, especially the Buddhist clergy, could pose a problem.

Deliberations on the package began against a backdrop of strong opposition from a powerful section of the Buddhist clergy. The Buddhist clergy remains split over the power sharing package. Those supporting it have said those opposing should then suggest an alternative. Ven. Walpola Rahula expressed concern over the division of the country pointing out that Sri Lanka should remain the only Buddhist country in the world.

At the Kalutara meeting, President Kumaratunga rallied the PA MPs to speak with one voice on the proposals. Even PA parliamentarian Jayasena Rajakaruna who had openly criticised it before this week's meeting, saying it sought to divide the country, endorsed them. A PA parliamentarian, who did not wish to be identified said the problem was that most MPs had not yet understood fully the various provisions in the package. "They have not been sufficiently educated," he said. Whether or not an insight was provided as a result of the two-day workshop in Kalutara, is open for review.

The main focus of the new constitutional reforms has been the devolution of power to the regions. According to Constitutional Affairs Minister G. L. Peiris, deliberations on the package are scheduled to draw to a 'rapid conclusion' later this year, probably by November this year.

Contrary to previous positions today many of the minority parties are for a federal solution while the Sinhala based parties agree to a quasi-federal system. Whichever is finally implemented would not really matter, as long as all citizens are treated as equals, and all ethnic communities granted equal respect, a politician said.

Peace activists hope the Tamils will respond positively to the present mood for reconciliation. One hopes that all communities will advance proposals which would also seek to address the fears of others and ensure a peace with honour. Peace activists say all communities need leaders who are equal to this task, and who will not waste this opportunity — leaders who will put the nation before themselves.

President Kuma–ratunga made a plea at the Kalutara workshop, for a speedy solution to the ethnic crisis. She said finding a reasonable solution to the ethnic issue was the biggest challenge today. She said a solution during the term of the PA government was important.

Political analysts say what needs to be examined by the government is how effectively the UNP could participate in sharing responsibility for the devolution proposals. A campaign to solicit the masses and gather their support is also essential while bringing about a broader participation of political parties.

It is not clear yet whether the UNP will reach consensus on the power sharing proposals as a substantial number of UNP members are committed to the unitary framework.

The UNP had earlier expressed fears that the credit for the package would go to the government. Some political commentators believe the UNP's hesitation is largely political.

The devolution proposals, which envisage sharing of political and economic power with nine other regions, are of vital importance and therefore need to be reviewed carefully. The proposed transfer will have to assess also from the economic angle — how it would affect the economy.

An economist told The Sunday Times a part of the country that would come under the centre — Colombo and Sri Jayawardenapura Kotte — would face certain pitfalls, impeding economic development.

Meanwhile, women peace activists in Sri Lanka have continued to push for a non-militaristic conflict resolution. The objective of these women's groups has been to undermine the glorification of war and the whole 'macho' image of establishing peace through violence perpetrated by war. Workshops, public rallies, educational programmes, media interventions and poster campaigns have all served to elucidate a mandate against the war and an equally strong mandate for the implementation of the devolution package.

If not the entirety of the package, these women's groups, however, actively support the sense of power sharing that the package promotes.

TULF leader M. Sivasithamparam has repeatedly stated that his party supports the devolution package amidst virulent criticism from Sinhala extremists. He said the TULF believed the devolution proposals would succeed with certain amendments.

Mr. Sivasith–amparam said the TULF had stuck its neck out at great risk to support the power sharing at regional level.

The package if implemented should not serve as a mere piece of legislature but would need to actively improve the social, economic and all other common problems for all Sri Lankans, not just the Tamil community.

Meanwhile, attempts at peace in Sri Lanka by various foreign missions and independent groups are seen as interference in what is largely perceived as an internal issue.

Political analysts say the government has the situation under control. Therefore, in the event of future negotiations with the LTTE it would not welcome outside intervention as it could limit the government's controlling power. The government is gearing for the presentation of the proposed constitution and would not welcome any other actions construed as being counter-productive.

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