ISSUES

Indecision that has put government in quandary

“It is for the Supreme Court to lay down the law. The government has to identify political responses... We are examining all options available to us and will decide on the best course of action”

— Prof. G. L. Peiris

By D. B. S. Jeyaraj

The Supreme Court has arrived at a decision over the proposed 18th and 19th Amendments to the constitution. A seven member bench comprising Chief Justice Sarath Nanda Silva and Supreme Court Judges S. W. Wadugodapitiya, Hector Yapa, Shirani Bandaranaike, Ameer Ismail, D. W. Edirisuriya and Ashoka Silva considered 29 petitions before delivering a final determination. The unanimous decision was formally conveyed to President Kumaratunga on the evening of October 15. It was also conveyed simultaneously to the Speaker as is the procedure.

Speaker Joseph Michael Perera however, was in Canada attending an international conference. He was scheduled to return home on October 19. In any event, the determination could be officially publicised only when parliament convenes on October 22. There was some speculation in the media that President Kumaratunga was conferring with senior lawyers about the unprecedented step of announcing the Supreme Court decision to the people herself. Such a controversial event would have been unparalleled in Sri Lanka’s history.

Saner counsel seems to have prevailed and up to the time that this article was being written, no such move was made.

Stiff blow

Although the determination was not formally made public, the national and international press carried news items revealing the essence of the decision. If the media reports are to be relied on, there is very little doubt that the President would have been elated at some aspects of the determination. This may explain the speculative stories of her consulting legal opinion about announcing the ruling herself.

According to media reports quoting authoritative sources, the 18th Constitutional Amendment which sought to place the newly created Constitutional Council out of the fundamental rights jurisdiction of the Supreme Court has been totally rejected as being unconstitutional. The amendment seeking some form of immunity to decisions made by members of the Constitutional Council was struck down totally. There is however, negligible concern in government circles over the 18th Amendment’s fate.

It is the ruling on the controversial 19th Amendment that seems to have delivered a stiff blow to the government’s designs. The proposed amendment sought to eliminate the presidential power of being able to dissolve parliament and calling for a fresh election after one year of the previous election. The amendment also empowered parliamentarians with ‘cross voting rights’ so they could vote according to their conscience without being deprived of their seats for defying party discipline in that respect.

The sections empowering MPs with ‘cross voting rights’ have been deemed unconstitutional and struck down. As for the President’s power of dissolving parliament in one year, the Supreme Court has  ruled that apart from a two thirds majority in parliament, the nation at large has to endorse it at a countrywide referendum for it to become law. There is apparently a caveat that no referendum was necessary if the present one year period restricting the President from dissolving parliament was extended simply to a three year period. A two third majority alone would suffice if the 19th Amendment was on those lines.

The Supreme Court verdict on the proposed 19th Amendment has serious ramifications for the government of Prime Minister Ranil Wickremesinghe. The move to restrict the President’s right to dissolve parliament in one year was rationalised on the grounds that if President Kumaratunga chose to exercise that right after December 5th this year, current political stability would be seriously impaired by the uncertainty of fresh polls and possibly new configurations in parliament. This would drastically affect the on going Oslo facilitated peace process in which the Liberation Tigers of Tamil Eelam (LTTE) led by Velupillai Prabhakaran was engaged in.

Therefore, presidential powers had to be curtailed. In order to accomplish this, a two third majority was required, which the government does not possess even with the support of the Tamil National Alliance MPs. So, at least 19 MPs from the opposition were needed. For that, the Damoclean sword of seat forfeiture had to be removed. The cross voting clauses were for that purpose. With the Supreme Court determination disavowing those provisions, there are very little chances of the government being able to woo the extra votes needed for a two third majority even if it did decide to modify the proposed amendment on lines of avoiding a referendum.

Although details of the Supreme Court determination appeared last week, the highly politicised nation had suspected a government ‘retreat’ on the issue somewhat earlier. The government that was blowing hot on Kumaratunga went lukewarm a few weeks later. Economic Reforms Minister Milinda Moragoda met Kumaratunga for ‘cordial’ discussions. This was followed by Wickremesinghe, Marapone and Moragoda meeting Kumaratunga and Kadirgamar for a briefing on the Sattahip summit. It was also announced that there would be such meetings before and after each round of talks in Thailand. Kadirgamar called it ‘reviewing’ and projected an impression that Kumaratunga was directing the peace process.

Bending backwards

It was indeed tragicomic that a government charging Kumaratunga of sabotaging the peace process was now bending backwards to keep her informed. This seemed to indicate that the government was now currying favour with her. Reinforcing that perception was the conspicuous exclusion of G. L. Peiris in the delegation that briefed Kumaratunga. G. L. after all, was the leader of the government team in the talks. He was dropped in deference to Kumaratunga’s wishes. This conveyed a wrong picture to the country that the government was now wooing the President because cohabitation was necessary and that Kumaratunga called the shots.

Why was a government proposing to clip Kumaratunga’s wings through the 19th Amendment running to her at this juncture? In public perception, there was only one answer. The government was not sure of getting the 19th Amendment passed. It could be either through an inability to get enough votes or due to prior assessment that the Supreme Court determination was going to be adverse. Thus, the government was trying to appease Kumaratunga before the bubble burst. So, when the Supreme Court determination was publicised, it was not a great surprise to many.

The Supreme Court seemed to have made some firm rulings that place the ball squarely in the court of the government. The United National Front (UNF) government adopted a brave posture and began getting its act together. The UNF political committee met on October 15 and decided to go for an early election. On October 16, the cabinet met and unanimously resolved to go for a general election instead of a referendum when the Supreme Court decision was officially revealed in full.

Further enlightenment came indirectly during the weekly press briefing on October 17 by Cabinet Spokesperson and Constitutional Affairs Minister Prof. G. L. Peiris. Prof. Peiris when quizzed by the media declined to comment on the Supreme Court determination but ventured to opine “It is for the Supreme Court to lay down the law,” and that “the government has to identify political responses.” Elaborating further, he said, “We are examining all options available to us and will decide on the best course of action.” While not revealing much of the government’s thinking on the subject, Peiris did make pertinent observations indicating the mindset at Temple Trees.

“The government does not intend to have a referendum. We don’t think it is appropriate,” he was quoted by news agencies as saying. “Because we are dealing with a whole range of issues it might be important therefore to make an appeal to the people of Sri Lanka,” he said. Asked if he was referring to an election, Peiris replied “That is one way of doing it.” While the President could not dissolve parliament until after one year of the last general election, Peiris pointed out that parliament could make such a request to the executive head. “We are therefore in a position if we so decide to bring about a dissolution of parliament,” he said.

The minister also issued a subtle hint about parliament using ‘financial control’ as a lever to make the President comply. “The government has every authority to determine financial policy. It determines the allocation to ministries and departments and if necessary we will exercise that authority,” he said.

Using authority

Responding to questions at the press briefing, Peiris said that parliament would use its authority when facing ‘undemocratic’  action preventing policy implementation. Amplifying further, he said that instances such as the executive refusing to comply with a majority decision of the legislature such as dissolution  would be considered ‘undemocratic.’ Yet the minister qualified his reply  guardedly by stating that he had not made any explicit reference to cutting down the financial allocations to the President.

In fairness to Prof. Peiris, it must be noted that whatever comments he made at the press conference were reflective of only the ‘current thinking’ of the government and that the ultimate approach was yet to be finalised. The situation is quite fluid and in politics — the art of the possible — anything could happen at short notice. Nevertheless,  media reports of other developments also demonstrate that the government was heading for an early election or snap poll.

The chief constituent of the government, the United National Party’s General Secretary Senarath Kapukotuwa told newspapers “We are ready to face an election at any moment. We are confident of victory. The party machinery is fully prepared to face an election.” Representatives of other parties both within the government as well as supporting it from outside have also said that they are ready for a fresh poll.

What is striking about this scenario is the ‘topsy - turvy’ discomfiture of the UNF government on this matter. The contradictory double standards adopted are quite visible. The rationale for disempowering Kumaratunga from being able to dissolve parliament in a year’s time was allegedly to prevent an early election because such a poll would have undermined  political stability and affected the peace process. It refused then to accept Kumaratunga’s declaration that she would not do so and went ahead with the 19th Amendment.

In the aftermath of the Supreme Court determination, the very same government wants an early election before even the one year period and in supreme irony wants Kumaratunga to oblige. If she does not, the implied threat is to cut off financial allocations to her. Moreover, the earlier arguments about a precipitate election undermining stability and the peace process are now being conveniently reversed. The new election will not affect stability or the peace process is the new manthra. Instead, it is being parroted that stability will be ensured and the peace process strengthened. There is quite a lot of ‘bittara’ and ‘muttai’ on government faces.

Renewing ‘cohabit’

What erodes government credibility further is the validity of  the so called snap poll option. Legal luminaries like Finance Minister K. N. Choksy are of the opinion that if parliament passes a resolution demanding an early election, the President has no choice other than to accede. This assumption may be  legally correct but does not seem to bind the President. The President need not dissolve parliament immediately or instantly. Given the tirades heaped against her on the question of early dissolution, who could fault her for not doing so now.

What she could do first is to disregard the dissolution call and in a somewhat tongue in cheek manner ‘advise’ the UNF not to go for a new election as it could affect stability, investor confidence and the peace process. She could renew her call to ‘cohabit’ knowing fully well that she holds the whip hand now. She could continue ‘friendly friction’ with her cabinet members.

Her response to Rajitha Senaratne’s fencemending overtures illustrate her defiant mood. After playing a cat and mouse game for a while probably after December 5, she could move in for the kill.

 It is certainly the presidential prerogative to explore avenues of instituting a stable and if necessary alternative government. Kumaratunga could therefore, prorogue parliament for two months and seek ways and means to cobble together a majority that would help form a new government. The prorogation would obstruct temporarily at least the government’s intention to cut off her finances. Theoretically, the President can continue to prorogue for two months —  convene parliament — then prorogue, indefinitely. But, the country would grind to a halt as financial allocations would lapse if not renewed in three months.

What Kumaratunga is likely to do therefore, is to disregard the dissolution call, prorogue parliament and have a shot at forming an alternative government. If the attempt fails, then she too may be compelled to call for an election. But, what she would like to do is to dissolve in her own time and not at a time determined by her rivals. What is relevant here are the details exposed by a fellow columnist  last week in The Sunday Leader. According to Suranimala, a strategy has been planned out by Kumaratunga and her cabal at a meeting on October 7.

Bleak prospects

The plan apparently is not to dissolve immediately after December 5, but wait for a more opportune time like March 2003. Tensions would be aggravated in the north - east through devious methods and public opinion built up against the process. The LTTE will be consistently provoked through agents within the armed forces and political parties operating in the north - east. The decisive stroke would be an overt, massive strike against a Tiger camp by ‘inspired’ sections of the army or navy. This would predictably trigger off LTTE retaliation.

That would be the decisive moment for Kumaratunga. She will remove Tilak Marapone and Imtiaz Bakeer Markar and take over the defence and media ministries herself. Thereafter, she could assume full control of defence and media and direct matters herself. After establishing that ascendancy, she could dismiss the government and dissolve parliament in the interest of ‘national security.’ Fresh elections would ensue. And pray, what of the peace process? In pieces! Bleak prospects for the country indeed.

This gloomy picture may not materialise if Kumaratunga succeeds in her bold gamble of forming an alternative government. Given the dynamics governing national politics, the  chances of Kumaratunga succeeding cannot be ruled out. The country faced a presidential election on December 21, 1999; a  general election on October 10, 2000; another parliamentary poll on December 5, 2001. The people are tired of these successive elections. Politicians are drained out of resources and energy.

The stark reality is that ‘politikkas’ on both sides of the divide would like to avoid another premature election. In fact, the UNF government was using that reluctance factor as crucial bait to entice MPs from the opposition to the government benches. Kumaratunga could adopt the same tactic to woo MPs from that side to this. Gander or goose, sauce is the same. After all, looking at the crossover track record of our MPs’ long jumps does anyone think that ideology, integrity, policy and principles will be factors restraining political long jumps?

It is this allergy to a fresh poll that makes astute journalists like BBC’s Frances Harrison doubt the government’s move of a new election. “Nobody wants fresh elections so soon after the last ones, as political parties are thought to be short of funds for campaigning after three polls in as many years,” she says. Harrison goes on to say, “It looks as if the government is involved in a game of political brinkmanship; making indirect threats and raising the stakes by talking of fresh elections in the hope it will prevent the President from trying to undermine the stability of the existing government.”

There is much merit in this reasoning. But then, the President in question is none other than her excellency Chandrika Bandaranaike Kumaratunga. This column has continuously  portrayed her as an unpredictable person consistent only in her inconsistency. In fact, this column advocated on December 9, last year, that the government should move decisively to remove Kumaratunga from office through legal and democratic methods if it was serious about the peace process. This government however proceeded indecisively and even ambiguously on this matter and now the first lady is ‘boss’ again.

Peace process endangered

It must also be noted that the peace process is now endangered. The move to pass the 19th Amendment had deep implications. By getting a two third majority via the cross voting device, the government wanted to permanently alter the power configuration in parliament. A two third majority is required for a constitutional amendment setting up an interim administrative council for the north - east, as well as for constitutional reform concerning ‘core issues.’ With the government in an unenviable position of not possessing the requisite two third, few meaningful decisions reached in the peace talks can be legalised or implemented.

 Besides, power configurations are changed and Kumaratunga rides again. If the government continues to mollycoddle Kumaratunga it will only enfeeble itself. The peace process could be a casualty. Even though the odds are very much against it, the UNF government has no choice other than to seek a fresh mandate for peace despite the contradictions in its stance. In any event, there is no doubt that Kumaratunga will bring about a fresh poll sooner or later.

What is required even at this late stage, is for the government to cautiously assess the situation, arrive at a decision and proceed firmly and boldly. Unless and until it is done, Kumaratunga cannot be ‘crisis managed’ or ‘contained.’ If the government does not grasp this basic principle and blunders on trying to cohabit instead of confronting, it will realise its folly only too late.

Cohabitation: Sticking it out, stuck together

Media reports on the order of the Supreme Court on the 19th Amendment focuses attention yet again on the continuing saga of cohabitation, its potential and probable impact on the evolving peace process. According to these reports, the court has struck down the provision which would enable MPs to vote across party lines on the 19th Amendment only, without risking the loss of their seat and expulsion from their party —  erroneously referred to in popular parlance as the “conscience clause.”

The court is also reported to have maintained that the President retains the powers of dissolution of parliament and any move to strip her of this power has to be approved by a two third majority of parliament and at a referendum. However, the restriction on that power which prohibits her from exercising it in the first year of a parliament can be extended, the court suggests, for a period in total of three years, as long as this is approved by a two third majority of parliament. No referendum is required here. As to how the court in its wisdom came up with this particular suggestion and time period will no doubt be made clear once the order in full is made public.

Balance of power 

Whatever the reasoning, there will be the development of scenarios and political calculations to ascertain as to which party such a suggestion if acted upon, will coincidentally benefit. Three years of a UNF government will take us to 2004, a year before the next presidential election. The President will have the power to dissolve parliament in the course of its full term, at any point after that. And no doubt, she will chose a point most favourable in her opinion, to her party. It will also be argued, that this in turn, will impact on the outcome of the presidential election.

The clarity and complexities of the court’s order aside, the political balance of power is yet again, in a state of flux. The UNF government is reported to be in favour of a snap poll as opposed to a referendum and reports have indicated that it cannot muster a two thirds majority in parliament, anyway. The President in her letter to the speaker has pledged that she will not dissolve parliament as long as a government can be constituted from the current legislature. The UNF contention is that the President is obliged to accede to a request from parliament on its dissolution, once parliament passes a resolution to that effect. The President on the other hand, according to her spokesperson, has received advice from her lawyers to the effect that it is not mandatory for her to accede to such a request.         

Arguably, the balance of power, in a state of flux though it is, momentarily favours the President. The UNF bluster about facing and winning a referendum appears to be no more than the braggadocio of those within it, that to put it mildly, dislike her. To move to a referendum, they have to overcome the hurdle of a two thirds majority which now seems beyond their grasp, even if the boycott of SLMC MPs does fizzle out. What is left is the election option and here the constitutional position in the opinion of the court, is in favour of the President.

Were it to be realised, there is the danger that an ends justifies the means rationale could take over — the protection of the peace process being used as the cover for a dirty election that produces a large majority. In this scenario too, a two third majority appears unlikely, even if whatever is produced from the south is augmented with whatever is produced in the north and east. Assuming it wasn’t a dirty election and a result still short of a two thirds majority, the enhancement of the UNF’s moral authority notwithstanding, we are back to square one.  Her execellency would still be her excellency, the President.  On the other hand, there is every likelihood of an ‘ali -koti givisuma/kumanthranaya’ being alleged by a PA -JVP combine and it could be more convincing now to more than just a few.  In politics, perceptions matter most and paranoia often ranks a close second.

In the current situation, procrastination on the part of the UNF will feed the perception of indecisiveness on the part of those who care about the depleting promise and burgeoning perils of cohabitation. What could save the UNF in this respect, is that those who really care are too few; many want the war out of the way and the economy buoyant. In any event, they are bored by this now tedious tango of cohabitation — to the brink and back again and again and again... They might keep each other in a state of heightened anxiety but not the rest of us, as long as there is no return to fighting and killing.

What options are left to the UNF government?  Stomach cohabitation, give the President as much publicity as she can stomach and more so that the country can make up its mind about whether she is a genuine victim of circumstances, martyr in the cause of peace, national unity and democracy or someone unable to act in the national interest and in a manner befitting the head of state — an executive one or otherwise. In the meantime, the UNF government can get on with the serious business of governing and peace building — talks in Thailand, donor conferences in Oslo and Tokyo, re-structuring the economy with thought and care rather than haste and hubris, ever improving relations with the LTTE and prospects of winning all fixtures in the run up to the next Cricket World Cup!

Peace process 

The lurking danger in all of this is that the peace process  will be undermined by the cumulative fall out of this tension between the two main parties and also by disunity within the ranks of the government, if either of them chooses to test their power and authority in conflicting directives throughout the chain of command, control and communication. The hard-liners in the UNF on cohabitation argue that the president has and will continue to undermine UNF government peace making efforts on the ground, under the guise of fulfilling her mandate, twice bestowed, to hold the country together. 

There  is of course the option of abolishing the executive presidency and this is probably where the division is not strictly along party lines or personalities; the country on the other hand will probably be as enthusiastic as it was in the early ’90s. And there is the option of allowing for a conscience vote on constitutional issues only — that too will require a two thirds majority and it will have to be delivered without the bizarre Clause 6 of the proposed 19th Amendment, which sought to protect all those who voted for it and it alone, from losing their seats in parliament and expulsion from their respective parties.  In light of the court’s order on Clause 6, this holds for any other proposed constitutional amendment to strip the President of her powers of dissolution. The honourable members of parliament will have to take risks in voting with their conscience, or risk the country in their fear or is it their cowardice, in this context?

This version of cohabitation seems more akin to checkmate than chess. And with the LTTE, checkers? Here at least in comparison, there is movement and surely in comparison, movement to a constructive end?

Whales and peace in sight

By Pia Djem Leichter

Whales Weep Not was screened in Colombo on October 1 and later shown on television to commemorate the 20th anniversary of the film, which was shot on location in Trincomalee in 1982. It was the first underwater filming of Sperm Whales in their natural habitat ever recorded, demonstrating the unusual concentration of whales in Trincomalee.

Whale capital

Sperm, Blue and Brybe’s Whales have all been identified in this area, along with numerous dolphins. According to Anouk Ilangakoon, who recently published Whales And Dolphins Of Sri Lanka, based on the amount of calves sighted in this region, it may be a possible breeding ground for Sperm Whales. Secretary General, IOMAC (Indian Ocean Marine Affairs Co-operation), Dr. Hiran  W. Jayewardene, one of the collaborators of this screening, was at the forefront of Sri Lanka’s commercial whale watching in the early 1980s in Trincomalee. Dr. Jayewardene organised the first expeditions during this time, discovering remarkable quantities of whales concentrated in Trincomalee, and helped regulate activities in the area.

It was just before the outbreak of the conflict that Trincomalee was named the ‘Whale Capital’ of the world after a tourist group sighted 16 Blue Whales and other whales and over 125 dolphins within a matter of a four-hour tour. Moreover, in the early ’80s deep seas off Trincomalee served as an important research base for the Tulip Project — a collaborative effort by WWF (World Wildlife Fund) and the IWF (International Whaling Commission) established especially for studying whales — who conducted the majority of its studies there. Tulip scientists tracked family groups of 10-20 Sperm Whales by their underwater clicking sounds, investigated a population of Blue Whales, and recorded the first Indian Ocean Humpback Whale songs off Sri Lanka. However, since the conflict, such research efforts as well as the work of other groups and individuals such as Dr. Jayewardene had to be abandoned — as perhaps did the whale’s favourite playground.

After the 19-year insurgent war, the whales have returned — with the first sighting of Sperm Whales on September 27, coinciding with peace negotiations. Whales communicate with the use of sonar waves. Sound waves underwater are magnified — explosions that may have been inaudible to humans greatly affected whales and other marine life. The war not only impacted the lives of people, but of marine life, the whales and our environment.

Tourism potential

Navy’s underwater activities: detonations, explosions and demolitions disrupted the area’s marine mammal life — especially the whales. The navy regularly detonated high explosives in the seas around its bases for over a decade to obstruct Tamil Tiger attackers. The recent beaching of 17 dolphins off Kalpitiya in which eight went back to sea, four died and five refusing to go back, further demonstrates this correlation: scientists assume they were too disoriented because of surrounding sonar use; although a study is needed to decipher the reasons for their refusal.

According to environmental scientist Dr. Hemantha Withanage, there is enormous tourism potential in the bays and the sea around Trincomalee: the potential for recreational tourism and eco-tourism is virtually unlimited, especially with the lucrative business of whale watching. Dr. Jayewardene pointed out that whale watching was a multi-million dollar business worldwide and he was confident of resuming Sri Lanka’s former short-lived glory in the early 1980s as a prime international destination for whale-watchers, and to regain its share of this market. The Finance and Planning Ministry recognises the possibility of developing the Trincomalee harbour as a sea based aquarium for recreational observation of whales, dolphins and other sea mammals that inhabit this sea.

Safeguards and legislation

According to Anouk Ilangakoon, tourism oft leads to heightened local awareness of the surrounding marine and wildlife, which in turn leads to greater education and responsibility for the diverse species in Sri Lanka. Although both agree tourism alone is not enough, the area and its marine life should be highly regulated, especially before the industry takes off in order to protect marine mammal life. Safeguards and legislation must be in place before abuses occur. Dr. Jayewardene is currently developing legislation for a ‘New Marine Mammal Act’ which involves reviewing and monitoring the state of conservation of marine mammals and related issues in Sri Lankan waters. The income that is generated from such industries as tourism could be allotted to the preservation of marine mammals. The surroundings should not be corrupted or polluted for generations to come. A delicate balance between development and conservation must be achieved in order to not cause further injury to whales, that have been hunted from the 18th century to the 1920s and displaced by war.  

With the current peace negotiations, the possibility of reviving the observance of one of the largest concentrations of whales in Trincomalee is on the horizon. It would seem as though peace is not only reserved for people, but would reside in the waters of Sri Lanka, where whales weep not. Ilangakoon stated that: “the whales never left, only the people did.” Peace brought the return of life: human, marine, wildlife and nature, and has provided the opportunity for magic to be experienced off the coast of Trincomalee once again.

Legality of the referendum

By Dr. Nihal Jayawickrama

When the 1978 constitution introduced for the first time into the Sri Lankan constitutional process the concept of a referendum, it was hailed in some quarters as a return to basics. In the tradition of the Greek city states, actual decision-making was being restored to the people.

The articles of the constitution which parliament could not amend without approval at a referendum were regarded as fundamental elements of the state: its name (Art. 1), its unitary character (Art.2), the inalienability of the people’s sovereignty (Art.3), its national flag (Art.6), its national anthem (Art.7), its national day (Art.8), the foremost place accorded to Buddhism (Art.9), the freedom of thought, conscience and religion (Art.10), the prohibition of torture (Art.11), any extension of the term of office of the President (Art.30), and any extension of the life of parliament (Art.62).

The introduction of a referendum was also viewed as a means of ensuring that these fundamental elements would ordinarily remain unaltered. In that regard, the constitution-makers were careful to distinguish the principle from its implementation. For example, while the life of parliament or the term of office of the president could not be extended without approval at a referendum, any reduction of the life or term, as the case may be, could be achieved by an amendment passed in parliament.

Similarly, while the concept of the people’s sovereignty was unalterable (thus preventing its alienation to a monarch, a military officer or to a particular community), the manner of its exercise was left to be determined by parliament. Thus, a requirement that the executive power of the people be exercised by the president on the advice of the prime minister appears to be an amendment capable of being made by parliament by a two thirds majority without reference to a referendum. So too a decision by parliament to transfer the exercise of judicial power in respect of parliamentary privileges to the Supreme Court, or for the sharing of legislative power by parliament with a new upper house.

The focus of this article, however, is a different issue which does not appear to have been addressed at all, namely, the question whether the National State Assembly (NSA) had the power or the authority to introduce the concept of a referendum through the 1978 constitution which it enacted with a two third majority of its members.

Basis of mandate

The NSA was created by the 1972 constitution which was ‘adopted’ and ‘enacted’ by a constituent assembly. The constituent assembly was established, not by virtue of any law, but on the basis of a mandate which the majority political alliance had sought and obtained in the 1970 general election. The mandate was for those persons who had been elected to parliament in that election to function as a constituent assembly for the purpose of declaring the ‘free, sovereign and independent’ republic of Sri Lanka. Accordingly, these elected members of parliament met outside parliament house, at Navarangahala in Thurstan Road, and conducted their formal business there.

It was very much a symbolic exercise since the governing political alliance had a comfortable two thirds majority with which it could have, if it so wished, lawfully replaced the 1946 constitution with a new constitution. That option was considered unacceptable because it would have meant breaking the link with the British crown through legislative powers ‘granted’ by the crown itself through an order-in-council made in Buckingham Palace. 

The NSA, therefore, was a creature of statute, legal persona. It had no existence outside the provisions of the 1972 constitution under which it was created. The NSA was authorised to amend the constitution, or to repeal and replace it, by a two third majority of all its members. The 1972 constitution also provided that the NSA may not ‘abdicate, derogate or in any manner alienate its legislative power, nor may it set up an authority with any legislative power other than the power to make subordinate laws.’ The intention of the constituent assembly, expressed very explicitly, was that the legislature alone should exercise the ‘legislative power of the people,’ without abdicating, derogating or alienating the whole or part of that power.

Abdicated power

What the NSA purported to do, in terms of the 1978 constitution which it enacted with a two thirds majority was: (a) to empower the president to refer to the people at a referendum any bill which it had rejected, and to enable that bill to become law if it is approved by a majority of the people at a referendum and is so certified by the president; and (b) to provide that a bill to amend certain provisions of the constitution which had been passed by a two thirds majority of all its members would have no legal validity unless and until it is approved by a majority of the people at a referendum and is so certified by the president. In effect, therefore, the NSA abdicated its legislative power in respect of certain matters to ‘the people’ at a referendum.

Additional body

The NSA also established the president and ‘the people’ at a referendum as an alternate or additional legislative body in respect of bills which it had rejected. The constituent assembly, which created the NSA in terms of the 1972 constitution, had expressly prohibited the NSA from taking either of these steps.

It is not suggested that the NSA could not have created by law a mechanism for non-binding consultation with ‘the people’ through a referendum on issues of public interest and importance such as poya holidays, Sunday shopping, a new national anthem or flag, or even on the name of the state.

Nor is it suggested that a referendum can never be established as a law-making process in Sri Lanka. While it may appear to be of the essence of democracy that the ‘people’ should be called upon to decide an issue, the question here is not the desirability of that step, but the legality of it. The question is: who has the authority to do so? A constitution that draws its authority from approval by the people could require reference back to the people for the amendment of some or all of its provisions.

A constitution enacted by a constituent assembly may prescribe that only another constituent assembly could amend some or all of its provisions. But it was surely not within the competence of a two third of the members of the NSA to have ordained with such absolute sanctity a law which it had made that it cannot be altered except with the approval of ‘the people’ at a referendum. Indeed, if that were possible, could not a simple majority have claimed the right to make a law which could thereafter be altered only by a two thirds majority; or could not two thirds have decreed that a law they made was unalterable for eternity?

Political pot boilers in the PA

By Amantha Perera

The entire political gamut turned inside out last week with the Supreme Court judgement on the 19th Amendment. With the judgement effectively annihilating the conscience vote clause, the entire amendment itself was rendered a non-starter.

With the possibility of party disciplinary action hanging over their heads now, opposition members would be way too worried to go against party decisions.

If two weeks back the government was only anticipating getting ready for a national poll, last week, elections became the best option to weaken the People's Alliance (PA) in parliament.

With the Supreme Court judgement the fate of the so-called PA rebels became very cloudy and ambiguous. Few days before the judgment reached her, President Chandrika Kumaratunga named three rebels who she said were working hand in glove with the UNF.

The three former ministers ironically are all PA frontliners, occupying the front row in parliament. Former Leader of the House Richard Pathirana, was joined on the list by his former cabinet colleagues Jeyaraj Fernandopulle and A. H. M. Fowzie.

Kumaratunga told those who gathered at the SLFP Trade Union meeting last weekend that though the three were working towards supporting the government, others would not do so. Of the three, Pathirana has been the most vociferous rebel.

First to voice support

He was the first to say in public that he would vote for the 19th Amendment and has been supporting even the government's privatisation programme.

Soon after the Supreme Court judgement became known, Pathirana was rendered un-contactable. Earlier he had argued that the PA could not penalise him for supporting the amendment curtailing the President's powers as the PA manifesto in 1994 had called for the abolition of the full office.

Pathirana was ready to take on the President not too long ago, at one point observing that he could handle her. However, with the Supreme Court ruling Pathirana's days as a PA front-liner look numbered.

UNP rebel Sarath Amunugama is publicly leading a campaign to oust him, at least from attending the party leaders' meetings in parliament. "We don't want fellows like that who work for the other side. We need fellows who will bat for us in the center," Amunugama told associates last week.

The group within the PA that Amunugama is part of, is working to get Anura Bandaranaike into the party leaders' meeting and possibly to the opposition leader's seat.

Amunugama also fired a salvo at sitting Opposition Leader Mahinda Rajapakse last week, when he told a newspaper that the present opposition was the weakest ever in history and that the opposition leadership should be changed by installing Bandaranaike in the post. The Amunugama outburst against Rajapakse came just a  day after JVP's Wimal Weeravansha said that opposition members should be whipped by their voters and brought to parliament. Weeravansha was reacting to poor opposition attendance at the voting for two bills two weeks back.

It has been no secret that sections within the PA, especially those who are aligned with Bandaranaike and Mangala Samaraweera have been acting in concert with the JVP.

Weeravansha in fact has been one of Rajapakse's staunchest critics.

Rajapakse did not react publicly to the remark. Privately he was of the opinion that he should not react, as then Amunugama's off the cuff remark would gain more weight.

"We should not bother about those who come and go from parties," he told members of his staff. However, some opposition members tried to release a statement to the press denying the validity of Amunugama's remarks, not linking the release directly to Rajapakse. However, that plan was dropped later. And when the week progressed other issues took precedence.

The other two identified rebels have not been subjected to such treatment as that meted out to Pathirana. Till the presidential outburst, both Fernandopulle and Fowzie were only suspected of working hand glove with the government trying to secure  sufficient votes for the 19th Amendment.

About turn

In fact Fowzie had distanced himself from the amendment when it entered the parliament order book. When questioned of his opinion soon after the entry, Fowzie said that he had not decided whether to support or otherwise. This was from a man who had been expressing his support to the UNF leadership quite frankly before that.

Last week he was abroad when the president linked him to the rebels, despite his efforts to distance himself. He only returned on Friday. Given the circumstances it would have been very unlikely that Fowzie would have taken Kumaratunga on.

The change of heart in Fowzie is rumoured to have occurred due to the persuasion of his son Noufer Fowzie. PA members close to the President had impressed upon Fowzie Jr. that whatever his father may gain by supporting the present government, his political horizons within the UNP were not very bright.

Fernandopulle too had been made to get the message subtly. Few months back, the SLFP branch in his own Katana electorate passed a resolution not to support the 19th Amendment and not to oppose decisions made by Kumaratunga.

Fernandopulle who had agreed with the resolution was however not the one who moved it. The motion originated from the SLFP high-rankers supporting Kumaratunga.

Recently at a wedding in Ratnapura SLFP supporters had told Fernandopulle not to support the amendment.

What action Kumaratunga now plans on taking against the rebels, she did not air last week. However, there is a possibility that the situation may demand that she tries to woo every member back into the fold.

"She is unlikely to go on a witch hunt," one of her close associates  said last week. His opinion was that though the Supreme Court judgement was taken by the President as a clear victory, she had not talked of any action against the rebels, just yet, at least.

If she is going to stick to her guns that she is not going to dissolve parliament, she may be forced to seek their support and possibly the support of other members in government as well.

A very high ranking opposition member told The Sunday Leader the morning after the judgment was received by Kumaratunga she had said that she would not agree to the dissolution of parliament.

"Our fellows don't want that," he said meaning that many PA members themselves were shy of facing another election and were aware that the party's popularity was not at its best.

The President can choose from several options available if the UNF goes for a dissolution which according to Prof. G. L. Peiris,  was  being contemplated very seriously. The options include inviting one of her supporters to form a minority government, or woo disgruntled elements in the UNF, especially the SLMC members and try to up the PA's support base.

But this too would only be a temporary manoeuvre with the parties able to sack the MPs for violating party discipline in such an eventuality.

"She might also try to reshuffle the present cabinet and get important portfolios like defence under her," the opposition member observed.

The SLMC members who are boycotting parliament are the ones high in the list of possible support.

Despite some of the original nine members giving up the boycott early last week, at least four members were still sticking to their guns by week end.

Deputy Minister M. Athaulla who is seen as the instigator of the boycott was of the opinion that till their demand for a separate Muslim council gets a fair reaction from Prime Minister Ranil Wickremesinghe, the boycott would continue.

Hell to pay

With the 19th Amendment now out of the way, some pressure that was on the SLMCers to give up the boycott was released and the continuing tension in the east added impetus to continue the action.

The biggest stumbling block that would be in Kumaratunga's path would be the peace process. With the LTTE and the UNF government now working together and looking for aid to develop the country, hope is in the air. Thus, if the people get the feeling that the process would have to be put on the back-burner if elections are to be held, then Kumaratunga and her party would have hell to pay at the polls.

The LTTE has made no secret that it prefers a stable government and prefers even more to negotiate with the UNF. Neither Anton Balasingham nor his leader would relish the idea of dealing with Lakshman Kadirgamar or his leader. No wonder Wickremesinghe was hedging all his bets on the peace process.

Whatever would be the ultimate result of the present political impasse, the country will once again be plunged to the dark side of uncertainty.

The fear factor is going to jump ten fold if elections are announced and the ensuing violence would be like nothing seen ever before.