The Political Column

30th November 1997

Jain commission report under UNP microscope

By Our Political Correspondent

Nelum Gamage
The political scenario in India in the wake of the Jain Commission bombshell ap pears to be volatile and there are fears it could spill over to Sri Lanka.

The Jain Commission has accused the DMK, which has three Ministers in the Gujral Cabinet of being linked to the suspected LTTE killers of former premier Rajiv Gandhi.

Mr. Gandhi’s Congress Party is threatening to withdraw ‘life support’ from the Gujral government if it does not sack the DMK from the ruling coalition. But Mr. Gujral has refused and challenged the Congress to carry out its threat. If that happens, there could be snap elections and many Congress leaders feel the party is ill-prepared for it.

Amidst all this hulabaloo the Tamil Nadu administration is now considering to award the highest police honour to the officer who has come under severe criticism by the Jain Commission for allegedly failing to take precautions for the safety of Mr. Gandhi.

Sri Lanka’s concern in this episode is the Jain Commission’s reference to the war in Sri Lanka.

The commission says the Indira Gandhi administration was disturbed, especially by the foreign policy of former President J. R. Jayewardene who looked towards the west to mould his economy ignoring India and its dominance in the region.

The UNP is closely studying the Jain Commission report to make a countercase. Some analysts claim the North-East crisis to be not just ethnic but partly created by Indian interests in the region.

In the circumstances the UNP may think of emphasising on the 13th Amendment to the 1978 Constitution which the party feels has adequately addressed the minority question.

But the UNP, however, is likely to consider changes to the 13th Amendment in areas where there are discrepancies.

The UNP leadership had summoned a meeting of UNP members of the parliamentary select committee and the two committees set up by the party to consider the government proposals on constitutional reforms and devolution of power.

The current political thinking in the UNP is to it oppose a Muslim enclave in the East.

UNP leader Ranil Wickremesinghe during his recent visit to India sought India’s point of view on the Muslim Council in the east.

He was told the BJP which is trying hard to make its way to governmental office would oppose such a move in Sri Lanka.

Mr. Wickremesinghe also had talks with BJP leader Atal Biharee Vajpayee on the correct political trends in the region. Not only the UNP, some government Ministers are also closely studying the Jain Commission report. Some of them feel that India added fuel to the ethnic question in Sri Lanka during the latter part of ’70s. Minister G. L. Peiris after having studied the Jain Commission report had expressed this view to many friends.

Despite the complications as a result of the Jain Commission report, Dr. Peiris is pushing ahead with the devolution package.

The package is expected to emerge as a key issue during the campaign for the Provincial Council elections next year.

It is likely that the PC elections would be held in May as a prelude to the non-binding referendum to evaluate the mood of the electorate.

In case the government is in a position to push the package through Parliament, all PC members would become members of the Regional Councils which will be created under the proposed Constitution.

The UNP appears to be returning to the 13th Amendment to the Constitution which the party feels could be improved with few amendments.

But at the same time seniors in the party are of the opinion that the party should support the package if the government is willing to include an independent election commission, a police commission and abolish the executive presidency as part of the reforms.

The feeling among the senior UNPers is that the UNP would face difficulties in the future if it fails to persuade the government to set up independent election and police commissions.

While some feel that the UNP should make use of this opportunity and support the package, others totally oppose it as an attempt to infringe on the rights of the majority.

What is clear is that the UNP is still dragging its feet over the package and the government would go ahead with the non-binding referendum which is disadvantageous to the UNP.

The other fear stalking the UNP is as to whether the government would use the same method to put off the parliamentary elections, taking lessons from the J. R. Jayewardene regime.

However, the UNP must also be aware that the United States and the European Union are fully behind the government’s devolution package and a senior US Senator was due in Colombo during the weekend to study the progress of the package and to review the political situation in the country.

Some members of the European Union, though pointing that the new system would not allow regions to be represented in the centre, have backed the government’s proposal.

While the UNP was pushing the idea of a modified 13th Amendment to resolve the country’s ethnic crisis, the dispute between President Chandrika Kumaratunga and Treasury Secretary B. C. Perera reached a crisis point over the weekend.

Mr. Perera has now decided to resign from the top post over a locomotive tender dispute after President Kumaratunga made several remarks over the matter at the Cabinet meeting on November 19.

She told the Cabinet that the sub-committee appointed for the multi-million dollar locomotive tender lacked transparency. The President at the same time appointed a special Cabinet sub committee to inquire into the matter.

The tender for the supply of ten locomotives was floated sometime ago and of the bids received the government shortlisted the following:

General Motors of Canada, Samsung of South Korea and GEC Alsthom of France.

The Cabinet appointed Tender Board comprised Treasury Secretary B. C. Perera, Transport Ministry Secretary Cecil Amerasinghe and Additional Presidential Secretary Cyril Gunapala.

Though it was reported that originally the Cabinet Tender Committee decided to award the tender to General Motors and Samsung to supply five locomotives each in two different categories, this was turned down and severe criticism was levelled against the CATB (Cabinet Appointed Tender Board) when Minister A. H. M. Fowzie presented the findings to the Cabinet for approval.

The prices quoted by the respective companies are as follows:

General Motors - 1.09 billion

Samsung - 1.43 billion and

GEC Alsthom 1.45 billion

According to the Technical Evaluation Committee report, it was stated that out of the three technically responsive tenders only one was for the 1200 horse power category and two were for the 1800 horse power category.

General Motors, offered the lowest for 1200 HP category while Samsung Corporation quoted the lowest evaluated offer for 1800 BHP category.

With the quoted prices, the committee was of the view that it would be best to buy five engines from each company - the 1200 HP for low country and 1800 HP engines for up country.

At last Wednesday’s meeting of the Ministers, the matter came up for discussion again when the Ministerial Sub Committee Chairman Ratnasiri Wickremanayake submitted his report.

The other members of the committee were Lakshman Jayakody, Kingsley Wickremaratne and Lakshman Kadirgamar.

As soon as Minister Wickremanayake submitted the report, several Ministers including D. M. Jayaratne, A. H. M. Fowzie and Jeyaraj Fernandopulle initiated a discussion as to how the details of the previous Cabinet meeting on the matter had been leaked out to the UNP and the media as well.

One Minister said the Cabinet meeting went on as late as 11.30 in the night and the following morning UNP’s General Secretary Gamini Atukorale raised the matter in Parliament. The Ministers were quite surprised as to how the details had been leaked out so fast.

Minister Jayaratne said these things should not be taken seriously since Cabinet secrets had been leaked out to the press during Sir John Kotelawala’s time too and even there were suggestions to hold Cabinet meetings on the Galle Face Green.

Another Minister told the President that certain newspaper reports had been descriptive that they had even given details about “your mood during the central committee meeting held last week.”

As all the Ministers were expressing views about Cabinet leaks a fairly young Minister, suggested that it could be the work of Nimal Cooke of the Maharaja Organisation. Mr. Cooke represented, the Maharaja Organisation which is the local agents for General Motors of USA/Canada.

The Minister ventured to suggest that he could have leaked out the papers after having heard what was going in government quarters regarding the locomotive tender.

Several other Ministers grumbled that leaking sensitive Cabinet information to the opposition to attack the government was a dangerous game.

The purpose of leaking to the media could be two-fold - primarily it could be to get publicity for the person leaking information and secondly to attack the goverment. “Attacking the government means attacking you,” one Minister said.

The President while getting up from her seat indicating the meeting was over, said, “Those days there was only one reporter and now it appears there are many.”

She said she could catch all the Ministers who were leaking information, by tapping their telephones but she did not intend to do so.

“I can do it but I don’t want to do it,” she said smilingly.

The government is similarly facing problems with the Bribery Commission too and the President was under pressure from the Ministers to take prompt action to prevent further problems.

At the meeting of the Ministers on November 19, some Ministers said that the affairs of the commission had become the focus of attention of the media.

“They were inquiring as to whether we were not taking any initiatives to resolve matters there,” one Minister said.

“We hear that there is going to be an inquiry against Director General Nelum Gamage’s husband,” said another.

The President having listened to these remarks carefully said nobody could interfere with the affairs of the commission other than Parliament.

Let Parliament deal with the situation, since the commission is responsible only to parliament.

“We have appointed an independent commission with the concurrence of the opposition. Therefore we should not interfere,” the President emphasised amidst reports that the government has brought the memxbers of the commission under pressure to resign.

It is learnt that the members of the commission - T. A. de S. Wijesundara and Rudra Rajasingham - have been asked to tender their resignations to avoid further embarrassment to the government. At the same time the government too had asked the Director General Nelum Gamage also to resign.

In announcing its plan to appoint a permanent commission on bribery and corruption, the People’s Alliance in its manifesto said:

The PA is determined to arrest this disastrous trend in our society and to revive sound and healthy values in the public life of our country. The mechanism which commends itself to the PA for the restoration of public confidence in our political and administrative system is the establishment of a Permanent Commission on Bribery and Corruption. The PA assures the public that this Commission will be established within 6 months of the assumption of office by the new government.

Recent developments connected with the fate of former Bribery Commissioner, Mrs. Nelum Gamage, vividly illustrate the weakness and inadequacy of procedures currently applicable to bribery and corruption against prominent political personalities enjoying government patronage. It is evident that the office of Bribery Commissioner, as constituted at present, is unacceptably vulnerable to pressures, both covert and overt, and indeed to victimization at the hands of the incumbent administration.

“It is for this reason that the PA advocates that the power of appointment of the Permanent Commission on Bribery and Corruption should reside not in the government of the day, but in a Constitutional Council, the composition of which guarantees its non-partisan political character. The Constitutional Council will consist of the Prime Minister, the Leader of the Opposition, two retired Judges of the Supreme Court, the Chairman of the Chief Ministers’ Conference, the Speaker of Parliament and representatives of political parties having seats in the legislature. It is the Constitutional Council, so constituted, that will be responsible for the appointment of the Permanent Commission on Bribery and Corruption.

“The Commission will consist of 3 members, 2 of whom will be retired Judges of the Supreme Court. One of them will function as Chairman.

“By virtue of the sensitive and crucial nature of their functions, members of the Commission will be afforded, in respect of security of tenure, all protection available to Judges of the Supreme Court. The Commission will report directly to Parliament; and they cannot be removed from office, except for misconduct, their removal being called for by a substantive resolution which is passed by a two-thirds majority of Parliament. Their salaries will be charged on the Consolidated Fund, and cannot be reduced during their term of office. These measures will ensure the provision of a framework within which the Commission will be able to function with impartiality and intrepidity.

“The Permanent Commission, as its name implies, will set about its work not ad hoc but on a continuing basis. The government will not be able to rescind the Commission’s mandate (as UNP governments have shamelessly done), when investigations being carried out by the Commission prove irksome or embarrassing to powerful politicians. This pervasive weakness, which marred the structures established by the Presidential Commissions of Inquiry Act, will be obviated by the constitutional scheme envisaged by the PA.

“The Commission, if it is to be effective in discharging its responsibility in a field of indisputably national importance, must not only be independent, but it must have at its disposal the wherewithal to perform its task. The Commission will, therefore, be provided with an adequate staff of competent investigative and legal officers whose salaries, as well, will be charged on the Consolidated Fund.

“The Commission will have 2 clusters of functions entrusted to it: (a) duties pertaining to investigation, and (b) the prosecution of alleged offenders. The Attorney-General’s Department will no longer be identified as the authority on which the task for prosecution devolves.”

However the call to resign could be ignored since the commission is only responsible to Parliament.

At the same time the government appears to be in a dilemma over the findings submitted by the Special Presidential Commission of Inquiry of Former Ministers Wijeyapala Mendis, Chandra Bandara, Former Treasury Secretary R. Paskaralingam and others, in the wake of a writ application in the Court of Appeal filed by Mr. Paskaralingam.

The argument put forward by the petitioner is that the commission was not properly constituted, since only two Judges - Justice Priyantha Perera and Hector Yapa proceeded with the case.

Since the matter is now before court Mr. Wijeyapala Mendis’ civic rights issue is in the balance though it had already appeared in the order paper.

If the court finds that the commission is not properly constituted it would be a great relief to Mr. Mendis and others but if Parliament goes ahead with the resolution in the order paper before the court gives its own findings, Mr. Mendis would find himself in an awkward position since he had not challenged the findings of the commission.

But some will argue that Parliament could not go ahead with the resolution since it would be subjudice. But it is a debatable matter and the UNP may not give the required two-thirds majority to strip the civic rights of Mr. Mendis on the basis of this argument.

But more importantly the government is perturbed since the petitioner R. Paskaralingam had been able to retain well known criminal lawyer Ranjit Abeysuriya who is considered to be a PA sympathiser.

Go to the Situation Report

Return to the Editorial/Opinion contents page

Go to the Political Column Archive