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7th March 1999

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Replacing one immorality with another

By S.L.Gunasekara

In an interview with 'Asiaweek' Editor Ann M. Morrison reported in the 'Asiaweek' of February, 26, that President Chandrika Bandaranaike Kumaratunga has said, inter alia:-

"The last government brought in a new Constitution and has rewritten it l6 times in 9 years - to stay in power. 

And they also rigged the entire electoral system, constitutionally, so that no one can get a two-thirds majority. For example, our coalition won 80% of the electorate so that we should have had 8/l0ths of the members of Parliament. 

"But because of this manner of counting, we have only one member more than the Opposition. They also put into the Constitution a clause that says that you cannot change even a comma without two thirds majority. 

'If the Constitution prevents us from implementing the majority will of the people, then it is not morally valid any more as far as I'm concerned. So we have to find some way of doing a constitutional revolution. 

"We have found a democratic means of circumventing this immoral arrangement in the Constitution which would mean we would have to have several elections to get the majority vote and then do certain things to bring this [revolution] in."

Similar sentiments have been repeatedly expressed by her in the past.

It is apparent from such statements made by the President that in her view, the present Constitution is 'immoral' and therefore invalid because the system of proportional representation which effectively prevents any party from getting a two thirds majority of the seats in Parliament coupled with the provision that any amendment to the Constitution requires a majority vote of two thirds of the whole number of members of Parliament (including those not present at the time of voting) prevents the will of the majority from being implemented. 

lt is also apparent from both her statements at the said interview as well as from other statements made by her that the purpose of seeking to circumvent the constitutional provisions relating to the amendment of the Constitution by means of the proposed 'constitutional revolution' is to replace the present Constitution with the new draft Constitution published by the Government in October 1997 under the title "The Government's Proposals For Constitutional Reform" which is commonly known as the 'Devolution Package'.

It would appear from the above statement of the President and others of a similar tenor made by her that such is her avowed devotion to constitutional morality that it would be unthinkable that she would seek to go through a complicated and yet undisclosed process of a 'constitutional revolution' which would 'circumvent' the existing provisions for constitutional reform to replace the existing 'immoral' Constitution with another that is equally or more 'immoral' - namely, one that contains the same 'immoral' features such as the system of proportional representation and a prerequisite of a two thirds majority for any constitutional amendment and/or any other provision which prevents the will of the majority from being implemented.

However, the 'Devolution Package' contains the same 'immoral' features and more. The provisions of the present Constitution relating to proportional representation have been taken virtually lock,stock and barrel into the 'Devolution Package'. 

The provisions in the 'Devolution Package' pertaining to the amendment of the Constitution while being virtually identical to the provisions in the present Constitution in that regard to the extent that they require a minimum of a two thirds majority of the whole number of Members of Parliament (including those not present at the time of voting) to change even a comma, a full stop, a colon or a semi colon in any provision thereof, contain a provision that is not contained in the present Constitution which, according to the President's own conception of constitutional morality is immeasurably more 'immoral' than any provision of the present Constitution. 

(A comparison of Articles 98, 99 and 99A of the present Constitution relating to proportional representation with Articles 116, 117 and 118 of the 'Devolution Package', and a comparison of Articles 82, 83 and 84 of the present Constitution relating to the amendment of the Constitution with Articles 100, 101 and 102 of the 'Devolution Package' make these facts evident).

In terms of the present Constitution, any provision therein relating to the 'Devolution of Power' to Provincial Councils could be amended by a two thirds majority of the whole number of members of parliament (including those not present at the time of voting). 

The 'Devolution Package' however, contains a new provision in Article 101 (2) thereof which provides that no amendment of any provision of the said Package that relates to the Devolution of Power would become law in any Region unless it is approved by a resolution of the Regional Council which is established for that Region. What this means is that even if a Bill for the amendment of any provision of the 'Devolution Package' relating to the Devolution of Power is passed unanimously by all the Members of Parliament and is thereafter approved by the people of the country at a referendum, it would not become law in any Region if the Regional Council established for that Region does not approve of it by a resolution - i.e. if such Regional Council either ignores and does not even consider it or considers it and refuses to pass a resolution approving of it by a simple majority of those present at the time of voting.

Thus, in addition to containing, those restrictions on the power of Parliament to amend any provision of the Constitution which are contained in the present Constitution which the President finds 'immoral' by reason of such restrictions being impediments to the implementation of the will of the majority of the people [of the entire country], the 'Devolution Package' piles immorality upon immorality by seeking to stifle still further the will of the majority of the people of the entire country by permitting a coterie of Regional Councillors to prevent a constitutional amendment passed even as aforesaid from becoming law in their Region. 

It would be unkind to the President to think that she would knowingly seek to go through the tortuous process of a 'constitutional revolution' to replace a Constitution possessing features which are 'immoral' in her perception with another Constitution which contains not only those self-same 'immoral' features but also some other features which are even ''more immoral' according to that self-same perception. 

In the circumstances one could only conclude that the President has been sorely misled about the aforesaid 'immoral' features of the 'Devolution Package' by some wicked advisors and was consequently unaware of their existence.

It therefore remains for the President to take stern action against those wicked advisors for having had the brazen effrontery to mislead no less a person than the Head of State and Government while enjoying her confidence, and also to take one further step that needs to be taken in respect of the 'Devolution Package', namely, to give it a speedy and decent burial or cremation - it really does not matter which.


From the Green Corner

Let not emotions run riot 

At the outset itself I might as well state that after reading my unseen friend Paakshikaya's column a fortnight ago, I was afraid that The Sunday Times would cancel my brief to be the UNP's voice in its pages.

Such was Paakshikaya's distress over what was going on in his own party that even I felt I need say no more. While congratulating Paakshikaya's forthrightness on many issues - ranging from the appointment of Dhammika Kitulgoda as the Secretary General of Parliament to the aftermath of the Wayamba elections - I feel I must still make my own views known on certain matters.

First, there was the issue of the Wayamba elections. Since the results were announced, you and I both know there were many attempts to justify the results and the "massive mandate" your party received. These attempts included a feeble move by several ministers at explaining the events of January 25 at a press conference.

What then, Paakshikaya would you say to the fact that one of your own candidates, Lakshman Welivitiya, a lawyer by profession, has filed a petition in the Supreme Court alleging election rigging on a mass scale with the connivance of the police?

Now, Paakshikaya, don't tell me that your president has appointed a committee to look into the mal-practices at Wayamba. Most presidents including some of our own find appointing a committee to be the easiest way out of any problem. After a while, no one remembers what happened to the committee and that is the end of the matter. The Wayamba committee will be no exception, my friend.

But why are you so silent about what your own candidate says? Why don't the ministers who defended the outcome at Wayamba discuss this matter on TV talk shows? And, why is your President - who would normally love to talk about such acts if they were committed by the UNP - maintaining a deafening silence on this issue? I am sure you know the answers to these questions, Paakshikaya, but what you do not know is that even the people know the truth now!

Then, my friend, I find the state media gloating over your President's decision to have an "all party conference" - that is what they call a meeting of a few party leaders - over the matter of conducting the next Provincial Council elections. They say that decision proves her bona fides and her commitment to free and fair polls. But is that the whole truth, Paakshikaya?

Just take a look at the letter of invitation sent to our leader, Ranil Wickremesinghe. In that letter, the President has the audacity to hark back to the 1994 elections and the 1977 elections and explains the great efforts made by her to protect democracy during those times - and this by a leader who has presided over the greatest electoral robbery of all time in this country!

But that is not my point, Paakshikaya. If your President sincerely intended to discuss election mal-practices with our leader, would she have resorted to an invitation like that?

I put it to you, Paakshikaya, that Her Excellency Chandrika Kumaratunga never really wanted to discuss these matters with our leader. All she wanted to do was in fact send an invitation liberally spiced with accusations and vitriolic statements against the UNP hoping that our leader Ranil Wickremesinghe will rise to the bait and say he would not attend such a discussion. Then Her Excellency could proclaim herself as the saviour of democracy and more than that, tell the Sri Lankan public that it was Ranil Wickremesinghe who was the stumbling block in her quest for free elections.

But that is where your President miscalculated, Paakshikaya. Remember, my friend, that Ranil Wickremesinghe is not a novice like your leader in these matters. He has over twenty years of experience in Parliament and he has graduated through the ranks - from Deputy Minister to Minister to Leader of the House to Prime Minister even before he became the Leader of the Opposition - unlike your Leader who pole-vaulted from being Chief Minister of the Western Province to Prime Minister and then, within a few months, President.

Then, there is another factor which your President did not read into the equation, Paakshikaya. And that is the fact that our leader, Ranil Wickremesinghe is a statesman rather than a politician.

Just, for a moment, imagine what your leader would have done in such circumstances. She would undoubtedly have pooh-poohed the idea and kept away from the deliberations just to spite her opponent. Then, also take into account the fact that some of our own party members were against the idea of Mr. Wickremesinghe attending the meeting. They pointed out that here we were staging satyagrahas on the Wayamba in the evenings and then attending talks with the President in the afternoons. But no, Mr. Wickremesinghe being the statesman that he is, decides to take the plunge and attend the meeting. He did so, not only keeping the nation's interests at heart but at the same time risking his image within the party. Now, Paakshikaya, would your leader have done that?

Now, let us get to the real issue at stake at this "all party conference" convened with so much fanfare by your President. You will agree that the issue that matters most is a free and fair election for the remaining five Provincial Councils on the first of April.

At the meeting our leader made a few simple and straightforward demands. They were not arbitrary demands dreamt of by the UNP overnight. They were only demands set out by your own party in its election manifesto when it came to power in 1994. Mostly, they asked for increased powers to be given to the Elections Commissioner so that he could do his job more effectively instead of being subjected to the pressures of being a servant of the government while at the same time being a government servant.

Now, Paakshikaya, what was the response from your government, and more particularly, from your President? A vague promise - like all her other promises - that these issues will be dealt with on a date that would be convenient after the first of April?

If your President was the champion of democracy, Paakshikaya, that she pretended to be she could most certainly have used all her executive powers at her disposal and effected those changes.

The same President who uses her executive powers to postpone elections until the Supreme Court orders that they be held is strangely silent on this issue. And that is why I thought I must register my strong protest here against this sham commitment to democracy pledged by the leadership of your party.

Then, there is the ground situation in the provinces. At least in the Western Province, I must admit, I am happy to note that you have selected Susil Premjayanth as the Chief Ministerial candidate. I feel he is the ideal foil for our own Karu Jayasuriya to conduct a free and fair election in the Western Province.

But, I'm afraid, I cannot give the same assurance with regard to the other provinces. And I must also note with concern that we are already getting reports of various acts of thuggery and intimidation, which we have every reason to believe, is just the beginning of worse things to come.

And that is when our party will sit up and take appropriate action, my dear Viruddha Paakshikaya. That is because we now know that your party supporters and even senior politicians are preparing the groundwork to discredit the UNP using the upcoming poll.

Take for example, the furore over the election date. When the Elections Commissioner fixed the date as April 1 there were howls of protest both from the Catholic clergy and the Muslim community. The Elections Commissioner, his hands being tied by legislation on the one hand and a Supreme Court ruling on the other hand could do little. But what did your omnipotent Executive President do? Nothing of course.

Then, when there was a threat that the matter may be taken to Court, the government instructs the Attorney General, the ever loyal servant of the law and lawmakers to make representations to the Supreme Court. But not to be outdone the state-owned newspapers try to make the UNP the scapegoat of your dilly-dallying by saying that a clergyman is conniving with us! This is the level of absurdity you stoop to, Paakshikaya. And, if you are the reasonable man (or woman) that you appeared to be two weeks ago, I'm sure you would be ashamed of all these child-like antics!

Yet, these tactics only prove that as far as the elections to the other five provincial councils are concerned, your intentions are just the same as they were for Wayamba - win at all cost. And, all this talk about committees and all-party conferences are only an excuse to cover up the eventual negative fall-out that would invariably follow the poll.

Now, don't for a moment think that we are unaware of all this, Paakshikaya. We are alive to your dirty tricks and we will retaliate in the proper way. Now, again don't rush into thinking that we will take the law into our own hands like your MP Jinadasa Nandasena has allegedly done. That is not our philosophy.

If you disagree with what I say, I can only refer you to what our leader Ranil Wickremesinghe has said last Sunday in an interview with The Sunday Times. 

He has hinted at people's movement taking issue with the government but on a non-violent basis. It happened in Poland, it happened in the Philippines and there is no reason why it cannot happen in Sri Lanka.

All these facts should be kept in mind by your leaders when they make public pronouncements but we now know that they are incapable of such common sense. In fact, it may be to our advantage eventually.

We have already seen how what you did in Wayamba has boomeranged on you and how you have to take measures at damage control now. If the backlash for rigging the poll in a single province was so harsh., Paakshikaya, just imagine what the reaction would be if you were to rig polls in five provinces?

And, despite the futility of such an act being so obvious to all but the most immature politician, your party supporters are still hell bent on pursuing the path of self-destruction.

And, that is why we are not unduly worried, Paakshikaya. On the one hand we know that the people are with us now, after what you did at Wayamba. On the other hand, we also know that your party will almost certainly try a repeat performance on the first of April or on any other date on which the poll will be held. 

Therefore, we are very confident that we will not have to convince the people very much about your sincerity - or lack of it - when the second of April dawns. So, Paakshikaya, if you are the sensible and decent person that you appeared to be a fortnight ago, you would do the correct thing in advising your "young turks", as you like to call them, to be decent and give democracy a chance.

But then we know that the pleas of those of your generation in your party are like to fall on deaf ears, especially when even the leadership is turning a blind eye to their doings. All I can say, therefore, Paakshikaya is, with enemies like those that we find in your party, who needs friends?


Demining: UNDP does it again

Who said that a UNDP programme to clear landmines in the Jaffna peninsula has been stalled again?

It was 'The Sunday Times' of February 14 in its front page lead story headlined "Demining Jaffna Undermined".

The next day the UNDP (United Nations Development Programme) issued a denial to the local and foreign media, except 'The Sunday Times'.

Although the denial did not refer to 'The Sunday Times' it was quite clear it was in reference to an interview 'The Sunday Times' staff reporter Christopher Kamalendran had with the UNDP landmine action co-ordinator, David Taylor, in a move which was not in keeping with accepted UN traditions.The UNDP news release even passed judgment on what it called "misleading" reports.

'The Sunday Times' of February 21 refuted the UNDP claim and published extracts from a tape-recorded 45-minute interview with Mr. Taylor.

Now the UNDP has done it again. 

Major General Lohan Gunewardena told journalists who visited the alleged Chemmani gravesite that the demining programme had come to a halt.

Even before the media team could fly down to Colombo to write their stories the UNDP issued another statement on Friday. It said: "In response to a statement made by Major General Lohan Gunewardena to the media in Jaffna this morning, where he is reported to have said that demining has not yet got under way because of some misunderstanding and a request by UNDP for a team of civilians to assist them, to which the military has objections, the UNDP would like to state that the dialogue with the Government to discuss the nature and composition of local survey teams for the Mine Action Programme is under way."

Now the UNDP also wants to hold a news conference on Tuesday. 

But Major General Gunewardena has confirmed that 'The Sunday Times' report. For reasons better known to itself, the UNDP office in Colombo appears to be working at cross-purposes. Christopher Kamalendran reports on Major General Lohan Gunewardena's remarks at Friday's news conference.

Major Gunawardena said: "The other one is the demining programme which has not yet got under way still due to various misunderstandings or threats. But there's progress being made. Very soon I hope it will materialise in a proper manner."

The Chemmani graves exhumation began today. Media freedom is observed, there are no restrictions. Every newspaper is here."

Q: Coming back to the question of the demining programme. Earlier it was said that the government had given a detailed map of Jaffna and after a while it was withdrawn by the military. What is the reason?

A: This map was discussed at the Ministry of Defence (MOD). Then I got the maps down from the survey department. When I came back from Colombo it was sent without my knowledge to the UNDP. Since MOD clearance had not been given to release the map, I spoke to the UNDP. Otherwise we'd have gone against MOD instructions. That's all.

Q: But why the slow progress. They say that the government is not giving the green light to come and do the demining programme. Only the MOD people sitting in Colombo block it?

A: Presently, in relation to the demining programme there's one point which has been raised. They also want the civilians to be recruited from Jaffna. We aren't in favour of civilians getting involved in the handling of such a task. We said we'd find retired people who are no longer serving in the Army. So the UNDP said this was against their normal manner of functioning and come back to us. This was said about a month ago. Upto now, they have not commented on that.

Q: They are not here right now?

A: No, they are here in Jaffna still.

Q: You think they can't carry out demining.

A: They could carry out. But the thing is there are certain pressures brought upon them as civilians. They will be handling certain equipment. They would not know the district . We also have our own mine fields. It is an unnecessary risk. So, why get them involved. This is why the MOD took this stand.

Q: If the US government agrees to bring in the personnel, are you agreeable to demining? 

A : Can't comment. They haven't said so. It is entirely upto the UNDP to decide. We had a meeting one month ago and await the outcome. 

Q: But what makes you hold back if they are willing to demine?

A: In the interests of the people, we will act. They have made an offer. What they will do is, just mark the areas and declare as a 'mine area'. 

They will remove the perimeter and re-establish the perimeter. Thereafter it would be our responsibility to demine using whatever methods or to let it remain so.

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