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31st  October, 2004  Volume 11, Issue 16

First with the news and free with its views                                     First with the news and free with its views                             First with the news and free with its views                                    

Editorial

Poser On The Presidency

In the 56 years this country has been an independent nation the family Bandaranaike has reigned for 25. That the nation has stood inert and phlegmatic ever since, should tell us this if nothing else. There is such a thing as overstaying one's welcome. Surely very soon at the President's House, Chandrika Kumaratunga, the daughter of two prime ministers would feel like Nehru at Oxford, a stranger everywhere and at home nowhere.

But of this she is oblivious. Blinded by her desperate bid to cling to power she continues to vandalise the constitution of this country. Cabinet spokesman for the UPFA government, Mangala Samaraweera was adamant last week that the presidential election will be held in November 2006. The argument for December 2005 put forward by the UNP and other opposition parties is equally forceful. No less fractured in opinion are legal luminaries of the likes of H. L. de Silva, Prof. G. L. Peiris and Rohan Edirisinha. And these are honourable men.

But for the eye of the dilemma - Chandrika Kumaratunga, the decision must necessarily be more than merely legal. It must be moral and ethical. Here is a woman who repeatedly lambasted the foul mind of J. R. Jayewardene, the creator of this no less foul estate - the executive presidency. Here is a woman who time and again from election platforms declared her hatred for the executive post. Here is a woman who like a record on one groove, promised to abolish the presidency by  July 1995.

Consider this. Under Article 32(1) of the Constitution, Chandrika Kumaratunga assumed office as President for a second term by taking oaths on December 22, 1999 before the Chief Justice. Under the constitution, assumption of office, which gives legal validation to the election, is derived through the oath's taking ceremony. Thus by this overt act she held out to the people of this country that her second term had commenced from the date thereof. If her second term were to have commenced a year later in November 2000, as she now claims, even though the election was held in December 1999, then according to Article 38(1)(d) she would have had to assume office by taking oaths as prescribed by the constitution within two weeks of such commencement of office.

There lies the rub. Apart from ridiculous claims of cloak and dagger oaths ceremonies conducted in secret between herself and her friend the Chief Justice, there is no evidence to prove that she did. If as one of the many arguments put forward now suggests that the Chief Justice had wrongly advised and erroneously administered the oath to the President prematurely, the Chief Justice himself will know only too well on a quick glance at his Law College lecture notes that ignorance of the law is no excuse.

The sacred governance of a democratic country and the importance of a presidential election cannot be downgraded to a Harry Potter sequence. Secret oaths are for Freemasons and other secret societies. Indeed such secret oaths whether taken only in the fertile imagination of a desperate President clinging to power or in reality are of no consequence. Furthermore that such an event ever took place is in serious doubt with no photographs or other tangible evidence to prove it. Significantly, the Constitutional Affairs Minister in Kumaratunga's Cabinet at the time, Prof. G. L. Peiris has no recollection of it whatsoever. Neither does the Elections Commissioner.

But let us for a moment indulge the power hungry President by assuming that her position is correct and that her second term commenced in November 2000. Article 38(1)(d) states that the office of the president shall become vacant if the person elected as President willfully fails to assume office within two weeks from the date of commencement of her term in office. We know that under Article 32 legal validation and assumption to office is derived through the oath taking ceremony. Since we are not inclined to giving credence at the fanciful declarations for public consumption of secret oaths, with the absence of any valid oath taken by the elected president in order that she may legally assume office, by virtue of Article 38(1)(d) the office of the president fell vacant somewhere in November 2000.

And here's the nub. Notwithstanding anything else, Article 31 (4)(a) as amended states that for the purposes of the above mentioned Article 38(1)(d) the date of commencement of the term of office of the new President shall be the date of election. Note the mandatory use of language. However, legal luminaries advise us that there is a gray patch in the law. And these are honourable men.

Take a brief look at another more morbid scenario God forbid. Assume if you will that the President  having taken oath on December 22, 1999 was to have died on a date before November 2000, would the People's Alliance have supported the call for fresh presidential polls and committed political hara kiri, or let their nominee continue for six years commencing December 1999? From the President's own argument that her second term commenced only in November 2000, the prime minister would have under the constitution, acted in office of president during the period between the occurrence of such vacancy and the assumption of office of a parliamentary nominated new president who would have been president for the remainder of the late president's first term viz: November 2000. In the meantime fresh elections would result by virtue of Article 31(4)(a).

Meanwhile, the Elections Commissioner whose business it is to declare the dates of elections of this nature has gone on record declaring the next presidential election is to be held end 2005.

The issue is simply this. While it will suffice for the moment to leave such gray areas in the law to legal fora, it ill becomes a President who has consistently battered the Executive Presidency while abusing her powers to clutch a lacuna if any, in the law to hold on to power. Is the SLFP so devoid of good and able  leaders, so bankrupt in human resources that it must be at the mercy of one family to the detriment of the party and the country?

One is reminded of that day in 1951 when the President's own father, S. W. R. D. Bandaranaike from the UNP crossed the floor of the House to sit with the opposition. It was a lonely journey across the carpet. Just him and his shadow. Then SWRD was from the corner of his eye to see a second shadow suddenly fall across his own. It was the shadow of  Don Alvin Rajapakse - the father of present Prime Minister Mahinda Rajapakse. Together they went on to found the SLFP. Today in the sweaty palms of the Bandaranaikes the SLFP has been reduced to a skeleton in the cupboard. Its intestines have been devoured by the parasitical JVP.

We merely ask this from the SLFP. Is not the son of one of the founding father's of the SLFP, Mahinda Rajapakse, a fitting and rightful heir to the throne? A man from the Deep South. A son of the soil.

We hold no brief for the UNP, but one must say this. In the history of its party, the leadership has been decidedly more democratic and all encompassing. It has afforded men and women from all walks of life to become leaders. If it started as an Uncle-Nephew party, it soon realised that it will not do. Democracy must start within a party before a party can administer its principles to a nation. The SLFP is a party that has practiced family bandyism and sycophancy for too long. It is a party that has been held to ransom by a family that has no relevance to this country in the 21st century. A family with a history of outstaying a welcome. In the 1965 election the UNP had won the most number of seats. The SLFP led front had not obtained the required seats, but was to considerably delay the handing over of power due to then Prime Minister Sirimavo Bandaranaike exploring several devious political options to somehow stay on in power, disregarding the popular will of the people, prompting Governor William Gopallawa to irritably offer to send her Erskine May for reference. An option which was three decades later to present itself to Ranil Wickremesinghe in 1994 and was gracefully declined by him in favour of Mrs. Kumaratunga.

In 1970 however Chandrika Kumaratunga's mother not only succeeded in extending every queue but also her own parliamentary term by two years. Changing the constitution by means of a constituent assembly held at a music hall in Colombo, she gave new meaning to the seven-year curse.

That Wimal Weerawansa has ripely termed the executive presidency a bibikkama which came to life only through the revolutionary agitation of such extreme parties as the Patriotic Front and the JVP is of little concern to a people sick of broken promises and endless lies. What is of real concern here is the character of the President. The character of a President who repeatedly lies on the future of the executive presidency. Who promises to abolish and only succeeds in attempting to extend its life. Does this type of action involve moral turpitude? It should.

Simply put it is time the President took the advice meted out in her own election slogans. In her own advertised parlance we now tell her "Deng athi. Palayang."



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