poll and the Elections Commissioner
By Dilrukshi Handunnetti
Battle lines are finally drawn. If the
UPFA government found some solace with the UNP offering conditional
support to run the debilitated legislature, skirting with a......
challenges the CJ
eight million dollar question
Drive threatens STC
poll and the Elections Commissioner
Jayasuriya and Elections Commissioner Dayananda Dissanayake
By Dilrukshi Handunnetti
Battle lines are finally drawn. If the
UPFA government found some solace with the UNP offering conditional
support to run the debilitated legislature, skirting with a
presidential poll is likely to cost it dearly.
The UNP that conducted a Jana Bala
Meheyuma is now threatening to conduct more of the same, demanding a
presidential poll, alleging that the sovereignty of the people
guaranteed by the constitution is being violated by the government's
failure to call a presidential poll. This failure on the part of the
government is spurring a debate, that could very well spell doom for
the present administration, which desperately lacks sufficient
numbers to keep the legislature running. The UPFA however, is not
willing to make a commitment despite the fact that time is running
out for the President claiming that the government is acting
according to legal advice.
A majority of the people appear to be
in favour of an announcement by the Elections Commissioner, fixing a
date for the presidential poll.
The issue no longer requires the expertise of constitutional
lawyers, as the constitutional provisions themselves appear
self-explanatory. (See boxes).
What is relevant to note here is that under the 1978
Constitution, sovereignty is vested with the people, which includes
the powers of the government and the franchise. The position
therefore is that the sovereignty of the people is the source of the
legislative, executive and the judicial power.
According to the present constitution,
besides executive and legislative powers, even the judicial power of
the people is exercised by parliament. It is significant to note,
that the term of parliament is confined to six years and each member
should take an official oath or affirmation to function as a
legislator. "That binds all of us to abide by the
constitutional provisions. There is nothing we could do in violation
of the country's supreme law. The President is also under an oath to
uphold constitutional provisions," says, Deputy Leader, UNP,
The UNP's argument is that the executive power of the people
is exercised by the elected president in the exercise of their
franchise for a term of six years. The president assumes office
after taking the oath or the affirmation.
Conversely, the people exercise their powers of government by
electing firstly, a parliament with a mandate of not longer than six
years and secondly, a president with a mandate for six years.
"The term of office of parliament and president both
cannot be extended beyond six years, except by a constitutional
amendment which requires a two third majority in parliament, and
approved by the people at a referendum.
The main opposition is now threatening
to mobilise the people against the UPFA, unless preparations
are made to hold a presidential poll on the due date - i.e. December
party points out that deciding a date for the presidential poll is
not a matter for the President but the Elections Commissioner.
"The political rhetoric of
President Kumaratunga notwithstanding, we urge the Commissioner of
Elections to do what is right and due," urges Jayasuriya.
Those supporting the government, however,
say that a presidential poll is due only in December, 2006.
But the fact remains that President Kumaratunga herself has at least
in no less than two occasions, specifically accepted, that her
second term commenced on December 22, 1999.
The above position is largely supported
by two significant documents; the Draft Constitution of the Year
2000 and the Supreme Court determination on the same communicated to
parliament on August 3, 2000, bearing Chief Justice Sarath N.
According to the 2000 Draft
Constitution Bill, Kumaratunga's second term commenced on December
22, 1999, having been elected to office in November the same year.
The draft incidentally was certified by the cabinet of ministers and
presented to the Supreme Court, and the Attorney General K. C.
Kamalasabayson. The Supreme Court's determination communicated to
parliament significantly by the Chief Justice also declared it
unconstitutional as per the provisions of the 1978 Constitution.
The Transitional Provisions of the
Draft Constitution Bill of 2000, under Article 233 (1) (a) declares,
"The person declared elected, on December 22,1999, as president
under the 1978 Constitution and holding office immediately prior to
the commencement of the constitution shall be deemed to have been
elected by parliament as the first president under the constitution
and shall, unless the president earlier vacates office by death,
resignation, removal or by reason of the election of the president
to that office being
declared void, hold office for a period of six years
calculated from December 22, 1999."
With the UPFA fighting shy of
elections, particularly a presidential election, the UNP which had
some adhoc agreement with the government not to rock the boat until
the end of the year, is now threatening to withdraw the support
promised. "We assisted the government by extending support, in
order to prevent anarchy and instability. But it must act
constitutionally and uphold the rights of people. Or else, we shall
make it to collapse," threatens Assistant Secretary, UNP, Tissa
Attanayake. "We shall not support a UPFA budget and allow it to
continue. The presidential poll at the end of the year is a 'must',
or we shall make the government collapse," warns Attanayake.
Any attempt to continue in presidential
office after December, 2005, according to Leader, SLMC, Rauf Hakeem
would amount to an "illegal holding of office."
Urging an announcement be made for the next presidential
poll, Hakeem says that the Election Commissioner should not allow
himself to be dictated to or, allow his decisions to be influenced
"A poll announcement at this
juncture is mandatory. People are getting worried. It is also about
their right to elect someone of their choice. The constitution is
clear and it is no longer her decision to announce dates but that of
the Elections Commissioner," adds Hakeem referring to the 2000
Draft Constitution bill and the Supreme Court's determination, both
of which recognise the fact that Kumaratunga's second term
definitely commenced on
December 22, 1999 - a fact she cannot override.
But all the campaigning conducted by
the opposition does not appear to have an impact on the UPFA
General Secretary Maithripala Sirisena finds it laughable that the
UNP has resorted to organising ill attended Jana Bala Meheyumas to
demand the holding of a presidential poll.
"It is due only in late 2006 and there are more urgent
and pressing needs in this country to worry about than a
mere presidential poll date. But unfortunately, that's all
the much-defeated UNP leader can think of at this point of time; and
that too comes from a party that held a dubious referendum to extend
the life of parliament by a full term, alleges Sirisena.
The SLFP General Secretary
further alleges that Wickremesinghe, at the conclusion of the
Jana Bala Meheyuma on Tuesday (12) has made some worrisome remarks
about the announcement of the presidential poll which bordered on
threats to democracy.
"Wickremesinghe has said that there is no need to
consult the Chief Justice or the Attorney General on this matter of
a poll date and that the Elections Commissioner should make an
urgent and independent decision. Of course, he can make an
independent decision, but Wickremesinghe should not have said that
legal opinions are not necessary when deciding on such matters,
especially when a controversy exists," he added.
However, the UNP is not alone in this
issue. Even the JVP, though quite unwilling to openly campaign for a
presidential poll, has covertly pledged support to one of the UPFA
hopefuls - Prime Minister Mahinda Rajapakse. In doing so, JVP Leader
Somawansa Amarasinghe openly called upon President Kumaratunga to
"go home honourably."
At a recent public rally, Amarasinghe declared that
Kumaratunga should step down on her own volition, without compelling
people to exert their legitimate rights through agitation.
However, the newly appointed UPFA
spokesman, Nimal Siripala de Silva was amused by Amarasinghe's
Amarasinghe's claim, de Silva vouches for the fact that the
President still has one more year to go and there was no need for
her to retire prematurely due to "pathetic opposition
"It is bad enough to have the UNP agitating for
democratic rights of the people, but it is worse to have the JVP
calling for the President to step down in keeping with democratic
norms," he scoffs.
They do not know anything about democratic traditions.
The government has received legal advice to hold it in the
year 2006 and not this year," adds de Silva, who himself is a
Violation of rights
However, TNA leader, R Sampanthan also
believes that the election is due at the end of this year going by
the fact that the President was actually sworn in at the tail end of
1999. "It is only fair to adhere to democratic practice and to
hold a poll" he says.
In the meantime, Assistant Secretary,
UNP, Tissa Attanayake claims that whoever who gives false advice to
political parties and misleads poll officers should bear in mind
that it is done so in violation of the 1978 Constitution.
"Besides that, there are two types of rights which are
also being violated.
It is a crime against the people of Sri Lanka who have the
right to elect a president of their choice, and it is also the
inalienable right of one person to be elected as president of the
republic," he notes.
Finally President Kumaratunga on
November 8, 1999 in writing to all professionals confirmed her first
term of office was coming to an end and that she was seeking
re-election. "It gives me particular pleasure to write to you
at this time, when I'm completing my term of office and seeking a
mandate from the people for re-election as President of the
Republic" she wrote. Need
one say more on the issue?
and the 1978 Constitution
The Preamble to the Constitution:
"The people of Sri Lanka having,
by their mandate freely expressed and granted on the sixth day
of the waxing moon in the month of Adhi Nikini in the year two
thousand five hundred and twenty-one of the Buddhist Era
(being Thursday the twenty-first day of the month of July in
the year one thousand nine hundred and seventy-seven),
'entrusted to and empowered their representatives elected on
that day to draft, adopt and operate a new Republican
Constitution' in order to achieve the goals of a Democratic
Socialist Republic, and having solemnly resolved by the grant
of such mandate and the confidence reposed in their said
representatives who were elected by an overwhelming majority,
to constitute Sri Lanka into a Democratic Socialist Republic,
whilst ratifying the immutable republican principles of
representative democracy, and assuring to all peoples,
freedom, equality, justice, fundamental human rights and the
independence of the judiciary as the intangible heritage that
guarantees the dignity and well being of succeeding
generations of the people of Sri Lanka and of all the people
of the world, who come to share with those generations the
effort of working for the creation and preservation of a just
and free society:
We, the freely elected representatives
of the people of Sri Lanka, in pursuant of such mandate,
humbly acknowledging our obligations to our people and
gratefully remembering their heroic and unremitting struggle
to regain and preserve their rights and privileges so that the
dignity and freedom of the individual may be assured, just,
social, economic and cultural order attained, the unity of the
country restored, and concord established with other nations,
Do hereby adopt and enact this
constitution as the supreme law
of the Democratic Socialist Republic oOf Sri
"3. In the Republic of Sri Lanka sovereignty is in
the people and is inalienable.
Sovereignty includes the powers of government,
fundamental rights and the franchise."
The legislative power of thepeople shall be exercised by
parliament, consisting of elected representatives of the
People and by the people at a referendum:
The executive power of the people, including the
defence of Sri Lanka, shall be exercised by the president of
the Republic elected by the people:
The judicial power of the people shall be exercised by
parliament through courts, tribunals and institutions created
and established, or recognised, by the constitution, or
created and established, by law, except in regard to matters
relating to the privileges, immunities and powers of
parliament and of its members, wherein the judicial power of
the people may be exercised directly by parliament according
franchise shall be exercisable at the election of the
president of the Republic and of the members of parliament,
and at every referendum by every citizen who has attained the
age of eighteen years, and who, being qualified to be an
elector as hereinafter provided, has his name entered in the
register of electors."
Article 32 (1)
"(1) The person elected or succeeding to the
office of president shall assume office upon taking and
subscribing the oath or making and subscribing the
affirmation, set out in the Fourth Schedule, in Sri Lanka
before the Chief Justice or any other judge of the Supreme
Article 31 (2)
"(2) No person who has been twice elected to the
office of President by the People shall be qualified
thereafter to be elected to such office by the People."
Article 62 (2)
"(2)Unless the parliament is sooner dissolved,
every parliament shall continue for six years from the date
appointed for its first meeting and no longer, and the expiry
of the said period of six years shall operate as a dissolution
"63. Except for the purpose of electing the
speaker, no member shall sit or vote in parliament until he
has taken and subscribed the following oath, or made and
subscribed the following affirmation, before parliament:
"I ..do solemnly declare and affirm that I swear
will uphold and defend the Constitution of the Democratic
Socialist Republic of Sri Lanka."
"(b) A bill for the amendment or for the repeal
and replacement of or which is inconsistent with the
provisions of paragraph (2) of Article 30 or of, paragraph (2)
of Article 62 which would extend the term of office of the
president or the duration of parliament, as the case may be,
or over six years."
Commissioner's office prepares for poll
With the UPFA government likely to be
defeated in parliament either during the budget debate or any
other finance bill, the Election Commissioner's Department is
preparing for a snap poll- be it general or presidential.
The Sunday Leader reliably learns that
while a presidential poll is on the cards, Elections
Commissioner Dayananda Dissanayake has instructed his
officials to be prepared in advance for a general election
given the precarious position of the present government's
parliamentary strength. Dissanayake has instructed his
officers to urgently update the voters' lists and be prepared
to send out poll cards on short notice.
The district officers too have been notified
accordingly. They have been instructed to send poll cards to
the voters according to the 2004 registers despite possible
relocation of voters following the tsunami, a senior poll
At the 1970 general elections, the
United Left Front (ULF) sought a mandate to establish a
republic for which purpose the parliament sat as a constituent
assembly. Having being elected to office for five years in May
1970, the life of parliament under the new Republican
Constitution of 1972 was extended till July 1977. The UNP
opposed this position, arguing that the people were sovereign
and hence the extension was illegal.
However, the ULF renaming parliament, 'The National
State Assembly' (NSA) declared that the NSA
was sovereign and that it had the right to extend
Opposition Leader J. R. Jayewardene
resigned from the NSA in protest in May 1975, and challenged
the government to contest him at the by-election for Colombo
was due soon.
The government did not field a candidate at this
by-election, and Jayewardene received an overwhelming mandate.
His proposition was that the National State Assembly
was illegal and that it should be dissolved; a position
opposed by Sirimavo Bandaranaike.
In the run up to the 1977 election, the
UNP's campaign was based on people's sovereignty and the UNP
secured 140 out of the 167 seats in parliament.
contained in the 2000 Draft Constitution
The Draft Bill of 2000 of the
Constitution of the Republic of Sri Lanka, Article 233(1)(a)
recognises the now disputed fact that the President in fact
took oaths for the second time on December 22, 1999.
Article 233(1)(a) is explicit and
states "a period of six years calculated from December
Similarly, Article 234 refers to a
period of six years calculated from the date of the first
sitting of the parliament elected under the 1978 Constitution.
"233(1)(a) The person declared elected on December
22, 1999, as President under the 1978 Constitution and holding
office immediately prior to the commencement of the
constitution shall be deemed to have been elected by
parliament as the first president under this constitution and
shall, unless the president earlier vacates office by death,
resignation, removal or by reason of the election of the
president to that office being declared void, hold office for
a period of six years calculated from December 22, 1999."
"(a) The first parliament shall consist of two
hundred and twenty five members and, subject to the provisions
of this constitution, all persons who, immediately prior to
the commencement of the Constitution were members of
parliament under the 1978 Constitution, shall be deemed to
have been elected as members of the first parliament;"
"(d) Unless sooner dissolved, the first parliament
shall continue until the expiration of a period of six years
calculated from the date of the first sitting of the
parliament elected under the 1978 Constitution and functioning
immediately prior to the commencement of this constitution and
no longer and shall thereupon stand dissolved, and the
provisions of the constitution relating to parliament shall,
mutatis mutandis apply."
challenges the CJ
Justice Sarath Silva
By Frederica Jansz
At a crucial meeting of ex-co members
convened by President, Bar Association of Sri Lanka (BASL), Desmond
Fernando last Thursday, July 14, strong concern was expressed in
relation to the case involving the now interdicted Wellawaya
Magistrate, Janaka Bandara.
President's Counsel Desmond Fernando
said a letter is being drafted to be sent to the Chairman, Judicial
Services Commission (JSC), Chief Justice (CJ) Sarath N. Silva and
its two other members, Justices Shirani Bandaranayake and C.
The letter will firstly express strong
concern regarding a letter written by the CJ to former Chief, BASL,
President's Counsel Ikram Mohamed and secondly, state concern that
the order of a judge was interfered with.
Fernando asserted that last year when
Ikram Mohamed was president, the CJ wrote a letter to him in which
he stated very serious allegations had been made against the
Wellawaya Magistrate in some petitions he received.
Fernando said when he took over as
president, BASL, he was asked to check from the Magistrate whether
his observations had been called for in relation to the allegations.
When he did so, the Magistrate had written back saying he had
not been requested to submit any observations.
Fernando says, "Thereafter I wrote
to the JSC Chairman who is the CJ and its two other members asking
if this position was correct.
I found out it was indeed so. The CJ, despite having said
there were very serious allegations against the Wellawaya Magistrate
and sent copies of those petitions to all members of the Bar
Council, did not even ask the Magistrate for his observations."
Fernando added that Justice Shirani
Bandaranayake, the other member of the JSC, "has always stood
for fairness particularly in this case too. However, this course of
action against the Magistrate was taken by the CJ and even she was
He maintained the JSC has absolutely no
power to interfere with the judicial decision of a magistrate - in
this case it was an arrest warrant issued by Magistrate Bandara
against the Moneragala SSP, M.U.A. Sherifdeen.
He said the letter from the ex-co
members of the BASL would be sent to the CJ and the other two
members of the JSC after the other three President's Counsels of the
BASL, L. C. Seneviratne, Shibly Aziz and Srinath Perera give their
Desmond Fernando asserted the CJ in his
letter to his predecessor Ikram Mohamed on October 6 last year had
reiterated the deputy secretary of the JSC had spoken to the
Wellawaya Magistrate and told him to recall an arrest warrant he had
ordered be issued to bring in Monaragala SSP, M.U.A. Sherifdeen for
an identification parade.
Fernando meanwhile added he has also
written to IGP Chandra Fernando seeking protection for the Wellawaya
Magistrate and his family including Magistrate Bandara's mother who
has also been threatened with death. The Wellawaya Magistrate,
Fernando said had also been told in these anonymous phone calls to
resign from service and not to go for an inquiry.
The ex-co meeting of the Bar Council
was preceded by a meeting of the Bar Association convened on June
25, where it was unanimously submitted that the JSC had acted in
contempt of court by interfering with the performance of judicial
function of the Wellawaya Magistrate, Janaka Bandara.
It was suggested the JSC had acted in
contempt and also in excess of its power because the constitution of
the JSC does not have powers to interfere with the judicial actions
of a magistrate.
The BASL is taking a stern stance on
the issue after over 200 members of the Bar Council voted against
the actions of the JSC in relation to this case, unanimously
agreeing that the BASL has a duty to address the issue fairly as
part of its commitment to strengthening and restoring the
independence of the judiciary. Only four members objected. None
At the June 25 Bar Council meeting,
Chrishantha Weliamuna drew attention to the fact
that if the JSC can be allowed to interfere with the judicial
functions of a sitting judge then the appellate courts can be
abolished. "There is little point in having a higher court if
the JSC is in a position to decide on and institute disciplinary
action on the judicial functions of judges," he said.
Gamine Jayasinghe, a senior civil
rights lawyer added, "We can see from the CJ's letter itself
the JSC appears to have interfered with the Magistrate's order.
Now we must take this issue further without having any more
Another lawyer from Moneragala courts
who appeared for one of the police officers involved in this case,
Samarajeewa Abeynayake, began to make allegations against the
But the President of the branch bar for
Moneragala contradicted him by saying his opinions were based on
personal interest he had in the case and were not a factual recount
of events. He
had then explained what exactly happened.
SSP at the wheel
A police jeep on August 28, last year,
had knocked down a bus conductor identified as Janaka Abeywickrema
killing him on the spot. Later police constable Samarajeewa
Abeynayake was produced before additional magistrate for Wellawaya,
M.A.M. Farook in connection with the accident and was granted bail.
Subsequently at the inquest proceedings
the dead man's sister, Renuka Jayanthi Kumari in her testimony
before Magistrate Janaka Bandara complained that it had not been the
police constable but Moneragala SSP, M. A. U. Sherifdeen who had
been behind the wheel. She testified before the Magistrate that at
the time of the accident when her brother was knocked down and
killed, in the ensuing commotion, the man in the driving seat had
got down and said, "Don't get agitated, keep calm, I am the SSP
for Moneragala. I will sort everything out."
As the dead man lay in a pool of blood
he had continued to proclaim, according to Kumari, in a threatening
voice, "I am the SSP for Moneragala, keep calm." Kumari
had then described the features of the SSP and insisted the man in
remand, police constable Abeynayake had not been the person behind
Acting on Kumari's testimony Magistrate
Bandara ordered Uva Province DIG, S. K. Shankar (since then
transferred to field force headquarters in Colombo) to conduct a
full investigation into the incident and submit a report. He also
issued an arrest warrant for SSP Sherifdeen to be brought and
produced in an identification parade. Sherifdeen had also given a
statement by this time to court, insisting he had not been behind
the wheel of the vehicle that killed Janaka Abeywickrema.
During the initial stages of the
inquiry proceedings the Magistrate had requested Sherifdeen not to
appear in court given the volatile situation prevailing with family
members of the deceased acting in a highly agitated state. In order
to avoid any confrontations or disruptions within the court house
the Magistrate had requested Sherifdeen to refrain from putting in
an appearance inside court premises. This was before he had evidence
that Sherifdeen had allegedly been behind the wheel of the police
jeep that killed the young man.
But Chief Justice Sarath Silva found
the Magistrate's decision in this regard to be highly improper.
In his letter to Ikram Mohamed last year the CJ stated,
"The commission examined the contents of the letter and in view
of the contradictory positions taken up by the Magistrate; on the
one hand in requesting Mr. Sherifdeen not to attend court and on the
other hand in issuing a warrant for his arrest; the deputy secretary
of the commission was asked to telephone the Magistrate to ascertain
whether he has acted in a contradictory and illegal manner as
alleged and if so to request him to take remedial action, by
recalling the warrant that has been issued."
ASP Asanka Karawita meantime was
appointed by DIG Shankar to conduct the investigation. Having
interrogated numerous police officers including the SSP's personal
assistant, Karawita submitted his brief. In this he says there is
evidence to prove that SSP Sherifdeen on August 28, using a police
jeep from the Badalkumbura Police Station, had on August 28, 2004
embarked on a private journey to Hambantota. It was on his return to
Moneragala that the accident took place.
Log entry altered
Sherifdeen's personal assistant has
given a statement asserting that the day after the accident he was
asked by the SSP to change the log entries contained in the book at
the Badalkumbura Police Station altering them to state the police
jeep in question had been taken by the Moneragala OIC and other
police constables including Samarajeewa Abeynayake to Hambantota to
conduct a raid to catch the wanted underworld criminal, Wambotta.
But police officers have told Karawita that the hunt for Wambotta
did not take place on August 28.
Based on all this evidence, Bandara
issued an arrest order to bring SSP Sherifdeen in, but the latter
complained to the CJ who acted immediately, instructing the JSC to
order the Magistrate to cancel his arrest order. Magistrate Bandara
was later interdicted. He was subsequently summoned to the CJ's
chambers where we learn he was chided for having done what he did,
with the CJ telling him he did not know the law and had behaved like
The position of the BASL in relation to
this case has set a precedent, for this may be the first time Bar
Council members have challenged orders given by the CJ.
eight million dollar question
The government is to spend an excess of
US$ 8 million to purchase four units of sophisticated electronic
X-ray machines that will help the Sri Lanka Customs Department staff
at the Colombo Port detect illegal goods like bombs and drugs.
The multi million dollar fraud has
prompted both the US and Chinese governments to write to President
Chandrika Kumaratunga as well as to Chairman, Cabinet Appointed
Negotiating Committee (CANC), S.B. Divaratne stating their concerns
with regard to the bias attached in awarding this tender to the
The decision to purchase the equipment
was made after US Customs, consequent to the terrorist attack on the
World Trade Centre on September 11, 2001, made it obligatory for the
Sri Lanka Customs Department to pre-scan all containers consigned
for ports in the USA at the port of Colombo.
The US, following the terrorist attacks
on American soil, implemented what is called a Container Security
Initiative (CSI). With the port of Colombo being identified by US
Customs as a hub for trans-shipment of South Asian cargo and with
other identified regional hubs already making headways for CSI
compliance, installation of scanning machines became an immediate
and imperative requirement.
But consider this. The Sri Lankan
government is on the threshold of finalising an award to purchase
four German mobile X-ray scanners having excluded any sort of
competition from other world renowned and proven products including
the product used by the Americans themselves.
Despite Sri Lanka being compelled to
adopt the CSI scanners due to a US requirement, in the bidding
process no other US company with appropriate technology was even
allowed to tender and compete for this contract. This is despite the
Americans being prepared to provide Sri Lanka a temporary loan of
scanning equipment, pending finalisation of the tender process.
This tender was called as a matter of
urgency in November last year. The project to purchase sophisticated
high-tech scanners initially originated from the Sri Lanka Ports
Authority (SLPA) as being the user of the equipment. However,
subsequently a cabinet memorandum signed by Finance Minister Dr.
Sarath Amunugama stressed the need for Sri Lanka Customs to have the
equipment installed at the Port of Colombo to help scan a container
for illegal items like bombs or drugs.
Currently it takes Customs staff upto
two days or more to search a container of goods.
The proposed new X-ray unit takes only 20 seconds to scan a
The issue is this. The government is to
purchase all four units from Smiths Detection (Asia-Pacific) Pte.
Ltd., at a cost of US$ 4.6 million per machine when the same company
has quoted US$ 2.3 million per machine to Spain, US$ 2.7 million for
each unit to Estonia and US$ 2.7 million in New Zealand.
This means, in a nutshell, Sri Lanka is
to buy the same machines, four in all, for US$ 8 million more than
Spain, Estonia or New Zealand.
The multi million dollar scandal
surfaced after two members of the Technical Evaluation Committee
(TEC), Major B. D. N. Perera and Prof. R. A. Attalage voiced
concerns, finally refusing to sign the TEC report.
At a meeting held at 2 p.m. at the
Treasury on Friday, July 1 called by S. B. Divaratne who functioned
as chairman, CANC, Defence Secretary Maj. Gen. Asoka Jayawardena
refused to sign his consent to award this contract to the Germans
asserting the entire process and purchase of the four scanners is
nothing short of "scandalous."
Prior to this meeting, President
Chandrika Kumaratunga forwarded a detailed note dated January 4 she
had received in relation to this tender, which outlined the bias
towards the German company. Assistant Secretary to the President,
Chandima Wickremasinghe on January 31, attaching the note with a
covering letter from the President's Office, sent it to the
Secretary, Ports and Aviation Ministry.
This note clearly details how, in order
to exclude all other proven products, the TEC embarked on the
following course of action.
In the first instance, although a US
consultant sponsored by the US government with extensive experience
in port security was commissioned by the Sri Lankan government, the
recommendations have been changed by the TEC, which has absolutely
no experience in port container security initiatives solely driven
with the agenda of preparing a document to purchase a German mobile
scanner at an exorbitant price to the exclusion of all other
The specifications originally prepared
by US experts have been arbitrarily changed with the sole purpose of
eliminating competition even before the prices are opened.
This could be easily proven by comparing the US consultant
prepared specification against the TEC final specification in the
tender document. The German scanners cost twice as much as those
used in the USA for CSI compliance.
The specifications ought to have been
based on what was recommended by the US consultants, given that the
scanners are a requirement for US Customs for all containers leaving
for the US from the port of Colombo. Instead, other systems were
excluded to reduce competition at the initial stage of the tender.
Although from day one of this tender
the specifications and all other conditions were made to eliminate
all competition and ensure that only one chosen manufacturer could
meet the specifications, owing to pressure from different quarters,
the decision makers went through a superficial process of
shortlisting four tenderers for evaluation.
Originally they intended to open only
the financial offer of the chosen manufacturer. However, owing to a
tender condition where it is stipulated that all shor listed
tenderers financial offers should be opened, TEC was forced to open
all four shortlisted tenderers prices.
Tender to highest bidder
As a result when the prices were
opened, it was divulged that the lowest tenderer was the Chinese
state owned China National Aero-Technology Import and Export Corp (CATIC)
at US$ 2.6 million, while the highest was the chosen tenderer, Smith
Detection at US$ 4.6 million.
The final four short-listed tenderers
consisted of Smiths Detection (Asia-Pacific) Pte. Ltd., which is
selling each unit for US$ 4.6 million; L3 Communications, which
offered each unit for US$ 3.3 million; OSI Systems Inc., which
offered the machine for US$ 3 million; and China National
Aero-Technology Import and Export Corporation, which offered each
scanner for just US$ 2.6 million.
The most prudent action to have taken
would have been to get all prices of all equipment so that one could
have made a cost benefit analysis on the different products offered
and its prices.
The BOT option which would have put the
responsibility of the technical and operational cost on to the
operator and which would have avoided for the government and the
Treasury being burdened with the purchase was completely ignored for
the sole purpose so that on a purchase, a substantial commission
could be made upfront by interested parties.
Also, according to the tender
specifications, prices were allowed to be quoted in any currency.
Thus, comparisons of prices were made that much more
difficult and varied continuously from the point of submission of
the tender to the date of payment, due to the constant fluctuation
in exchange rates.
One of the main changes made to the US
specifications was to eliminate any container scanning equipment
using the Gamma Ray technology, which is far cheaper.
Gamma Ray scanners, in addition to
being half the price of the German scanners, has the biggest market
share in the world. Gamma Ray technology, which was commercially
introduced to the world in 1999 through the US Customs, has a proven
track record of having over 150 systems sold to US Customs. The
system has also out-sold the old technical X-ray system by 3:1 in
the last five years.
As it stands now, it seems the driving
force towards sealing this tender is to make a US$ 8 million
commission. If not, why would Sri Lanka want to buy equipment that
has been sold for exactly half the price by the same company to New
Zealand, Spain and Estonia?
Apart from Divaratne, who has been
pushing to make this award to the German company, Rear Admiral C. N.
Thuduwewatte and Air Vice Marshal C. Gunaratne, both from the TEC,
insisted the scanners must be purchased from the Germans.
Drive threatens STC
Marine Drive and STC cricket grounds and pavilion
By Easwaran Rutnam
S. Thomas' College, Mt. Lavinia, a
school rich with tradition and history, is facing the threat of
losing a very distinct part of it to make way for the development of
grounds, which helped produce some of the big names in sports
in Sri Lanka today, has been earmarked for phase two of the Marine
Drive coastal highway.
School authorities confirmed that
markings have already been placed along the school cricket field
through which the proposed
Marine Drive will be implemented - although the actual
construction may take several years to get off the ground.
Road Development Authority (RDA)
officials revealed to The Sunday Leader they have the tracings for
the proposed second phase of the project, which if implemented will
see a large part of the school ground closest to the sea being
bulldozed and tarred.
The first phase of the Marine Drive
project which has already been completed saw the construction of a
new road running parallel to the railway line from the Bambalapitiya
railway station to Wellawatte.
Phase two of the project is expected to
see the extension of the road from Bambalapitiya to Galle Face on
one end and Wellawatte to the Moratuwa roundabout via Dehiwala and
Angulana on the other.
Plans for the Marine Drive project were
initially drawn up nearly 20 years ago but its implementation was
delayed owing to the constraints in acquiring the required land.
"Acquiring the land for phase one
of the Marine Drive project was very difficult. Phase two will
probably be tougher because there are several houses, hotels and
schools which will be affected," an RDA official said.
He said phase two of the project is
still in its early stages and may take years to be implemented,
provided it is approved and financed.
However, he added that a major part of
the cricket ground of S. Thomas' College, Mt Lavinia does fall
within the proposed land area for the project. The RDA has already
market the area as 'reserved' for the project and the school is not
permitted to erect any new constructions within it.
School authorities who were reluctant
to comment on the negative impact of the road project said they have
not received any notification as to when the project would be
However, one official said that an
alternate proposal was
to the RDA to utilise the road which already runs parallel to
the school. That proposal has not yet been accepted or
"If the original plan is
implemented, somewhere down the line it will be a problem for the
school but we will have absolutely no choice but to give way,"
the official said on conditions of anonymity.
A member of the school board, Aritha
Wickramanayake said the board would not stand in the way of the
development of the country and will find an alternative cricket
ground if the project is approved and implemented by the government.
"If we have to make way for a road
that will help the country we will do it. The school board has not
yet discussed anything related to the possible construction of the
the school cricket field currently lies. However, if and when the
time comes we will discuss it," Wickramanayake said.
A former student of S. Thomas' College,
Mt. Lavinia and currently a prominent figure in the electronic media
field was very much in favour of what Wickramanayake said, noting he
would put "country first."
However, the Old Boys Union (OBU) of
the school thinks otherwise. "We will totally oppose the school
losing its cricket ground," was their harsh reaction to the
A former head prefect of the school who
wished to remain anonymous said that as old boys they would like the
school to hold on to the name 'the school by the sea' and not be
forced to be a 'school by the road.'
He noted that several thousands of
rupees was spent to construct cricket nets at the ground which will
be lost if the project goes ahead - be it now or several years
"The cricket pavilion and sub
warden's house will also have to be razed to the ground if the
Marine Drive is extended through the school cricket field," he
Another old boy said he recognises the
need to place the country first but there has to be a viable
alternative for the school cricket field which has more than 150
years of tradition.
"Apart from cricket we also stage
rugby matches on the field. The government should give the school an
alternate adjoining land to be used as a cricket field. It should
not be miles away or across the road. That is not practical,"
S. Thomas' College, Mount Lavinia is an
Anglican Church School, which was founded by the first Bishop
of Colombo, the Rt. Rev. James Chapman, D. D. It was his
foremost vision to build a college and cathedral for the new
Diocese of Colombo of the Church of Ceylon. Thus on the 3rd of
February 1851 the College of St .Thomas the Apostle, Colombo
was opened with the objective of training
Christian clergy and to make children good citizens
under the discipline and& supervision of Christianity.
The school grew from strength to
strength at the place of its origin, Mutwal, for over
years, carefully nurtured by wardens such as Revs.
Wood, Miller, Read and Buck. Warden Stone in 1918, found that
the dusty environs of Mutwal were not best suited for his
pupils and so shifted the college to the picturesque campus at
Mount Lavinia. Since then eight wardens including the Canon
R.S. de Saram have ensured that the well preserved traditions
and values were handed down from generation to generation. In
1951 it became a private fee levying school and is today one
of the foremost educational institutions in Sri Lanka.
The Big Club Grounds were laid in 1918
as a memorial to the Great War and today it is one of the best
school playing fields in Sri Lanka.
This is the ground, where many of the
outstanding cricketers, ruggerites, and athletes mastered
The college which is under the Church
of Ceylon is run by a board of governors which is chaired by
the Anglican Bishop of Colombo who is also known as the
'Visitor of the College'. The administration of the college
itself is headed by a warden assisted by a sub warden.
its proud products stand a host of Christian clergymen, Prime
Ministers ( D.S. Senanayake,
Dudley Senanayake, Hon. S.W.R.D Bandaranaike, Hon. W.
Dahanayaka) cabinet ministers, members of the Judiciary,
scholars, scientists, diplomats, doctors, Engineers,
accountants, musicians, artists, dramatists etc. All etc...
Speaking to Secretary, Media Ministry,
W.B. Ganegala on the telephone, the President gave him instructions
last week to invite the heads of state media institutions for
discussions with her. Accordingly, the heads turned up with
Chairman, Lake House, Janadasa Peiris walking in clutching a bundle
of newspapers making everyone present wonder what he was about to
spring on them.
discussion centered on P-TOMS propaganda and what kind of a role the
state media needed to play in ensuring a positive message about the
joint mechanism got through to the masses. The President then
diverted the discussion towards the silence of the SLFP ministers in
the face of countless attacks against her.
Director General, Sri Lanka Rupavahini
Corporation, Nishantha Ranatunga pointed out it was difficult to get
very many people to speak positively about the P-TOMS. Chairman, ITN,
Newton Gunaratne remained mum throughout the discussion. It was
Ganegala who spoke up. "Just see this. It is difficult to carry
this campaign forward because of the things our people are doing.
The JVP went to court about the P-TOMS and our ones went behind them
as back up," he said.
Ganegala went on to explain how
Minister Dinesh Gunewardena and Deputy Ministers Segu Issadeen and
Sripathi Sooriyaarachchi went to court to support the JVP motion and
how all the media covered the incident prominently. "How can
such things be hidden from the media anyway?" queried Ganegala.
"I understand," replied
President Kumaratunga. "Dinesh and Segu are not from our party,
but they are in cabinet so they cannot absolve themselves of
responsibility. But I will have to take some tough action against
Sripathi and I am planning to give him his last warning soon. Let's
see if they follow the JVPers at the next court date as well,"
Next to speak was Peiris. Opening out
the Divaina newspaper, Peiris showed all those present an interview
given to the newspaper by Minister Mangala Samaraweera which he had
highlighted in yellow. "See what Mangala has done. This
interview is totally in support of the JVP. He has even spoken of
the problems within the party. This is not a good sign," said
The President remarked she herself had
heard about the interview and took the newspaper from Peiris and
began to read the highlighted areas herself.
"Well, this is not such a big deal. But our people also
must learn how to get the statements they want from Mangala so that
it will be favourable to us. There is no need to take too much
notice of what he has said about the party," said the
Peiris then pointed out another section
he had highlighted in yellow in the political column of the same
newspaper. This was regarding the President's 60th birthday bash.
"It says here Madam that you had laughed at the way Minister
Anura Kumara Dissanayake had tried to eat with cutlery. These are
not good things for you to say. So I took the liberty of denying
this clause on your behalf," said Peiris innocently.
The President however wanted a further
clarification so Peiris finally read the section out loud. At the
end of it Kumaratunga responded, "I never said anything like
that. But of course there's no harm in it appearing in the newspaper
either. Actually it was someone else who made the statement and it's
also true that everyone laughed. It was I who stopped the
conversation there. But the things said there are not untrue. Why
did you go to correct it, Jandasa?"
Rather taken aback, Peiris replied the
writer of the article had called him up and informed him that
Chairman Nimal Welgama had not been too happy with the appearance of
the story. "A similar story has appeared in The Sunday Leader
as well. The journalist said that Welgama was upset about the story
appearing in the Divaina. He said the JVP had also called Welgama
about the piece. The reporter said if you denied the story, they
would be happy to give it some prominence and carry it. Since I
cannot bother you with such trivialities, I decided to tell the
reporter to go ahead and carry a clarification," said Peiris.
Laughing at this story President
Kumaratunga retorted, "Oh, so it is Welgama who is now trying
to paint the JVP in a good light?"
The discussion then continued about the
P-TOMS propaganda and how state media was to respond to attacks
against the President by JVP leaders. There was also criticism and
analysis of the UNP's Jana Bala Meheyuma and how the state media
should deal with the event.
At the end of the meeting, President
Kumaratunga called Deputy Minister Lasantha Alagiyawanna and gave
him a message to convey. "Lasantha, go and tell that Sripathi
that if he goes to court with Wimal and them again I will have to
make a decision regarding his party membership. I will also remove
his portfolio. Tell him this is his last chance," said the
as meeting upon meeting took place at President's House, the
President launched a scathing attack on several of her ministers and
MPs. During a discussion on the P-TOMS, the President said that
while the JVP was going all out to attack the government, there was
no one counter-attacking from the ranks of the government.
"Wimal and Somawansa are going
around equating me to various inanimate objects. They are being
given wide publicity on private stations. My friends are telling me
that there is no one on our side countering these things," said
The President added she had also
inquired from various private television stations about this state
of things. "They told me the JVP issues statements about
various matters and when those stations call up our ministers and
MPs to ask for comments, they refuse to comment. I asked for a list
of the people who have refused to speak in my defence. I will get
those reports within the next few days. If a member of my government
doesn't have the guts to defend me, then they can go and get
membership in the JVP. I am watching these people," she said.
A deputy minister presented a similar
argument at this point. He said when Sirasa TV had contacted a
national list parliamentarian for his comments about an attack on
the President by the JVP, he had refused to comment. "Recently,
Somawansa and Wimal had attacked you and the Bandaranaikes in public
and this had been aired on Sirasa. When Sirasa contacted Mervyn
Silva to ask for a comment, he had evaded them for two days,"
said the deputy minister.
Angered by this news, the President
said, "Oh, I see now Mervyn is also playing a double
game," adding that she had also heard reports that Silva had
lately taken to going over to Minister Mangala Samaraweera's
residence by night. She asked to speak to Silva on the telephone
then and there. About 10 minutes later, Silva came online.
"What is this I am hearing Mervyn, about you refusing to
comment about a nasty statement Wimal and them had made about me?
You have refused when Sirasa contacted you apparently," said
the President, launching straight into the attack.
Silva in his usual style commenced a
long winded response. "Here Mervyn, I have no time to be
listening to your long story. Tell me now, are you going to counter
that attack on Sirasa or not?" demanded Kumaratunga.
"Madam President, if you ask me to, I will even catch the stars
for you. If you tell me to attack Wimal, I will. I am not like these
other wimps. I always protect you," whimpered Silva in
Ten minutes later, Silva called Sirasa
and told them that he was ready to make a statement about the JVP's
attack on the President. Accordingly, a Sirasa camera crew went over
to Silva's residence to obtain the comment. Speaking to those
gathered around her, the President said she was going to take
matters into her own hands. "I have summoned the state media
chiefs. I will give them the necessary instructions. And that's not
all, I will make some good decisions in favour of those who defend
me," vowed Kumaratunga.
to counter Jana Bala Meheyuma
UNP's Jana Bala Meheyuma brought the biggest crowd of people to the
capital Colombo on July 12 after a 11 day march from Devinuwara.
About a million people joined in this massive mobilisation of
people-power to demand a presidential election at the legitimate
time. The success of the Jana Bala Meheyuma proved to be a
reawakening for the main opposition UNP and also loss of face for
certain anti-UNP lobbyists within the government ranks.
Soon, the humiliation began to cause
rifts in the ranks. Hearing about the massive success of the
operation about three days after the march began, President
Chandrika Kumaratunga was flustered. Realising that more and more
were joining in the march with each passing day, the President
summoned the security chiefs for a meeting to obtain daily reports
of the march.
She asked for comprehensive reports on
the success of the march and the way it was gathering momentum every
day. As a result, from July 5 to July 7, she received a report every
day regarding the UNP's agitation campaign. After reading two or
three of these reports, Kumaratunga began to get really worried. She
was now wondering how on earth to prevent the flood of people
converging on Colombo.
Would they end their protest at the
Lipton Circus or would they walk right on to President's House and
cause a stir? And what could the President do to stop them? She
decided to put UPFA National List MP Mervyn Silva on the job to find
out, knowing that he maintained certain ties with UNP MPs. Calling
up Silva, the President instructed him to use his contacts within
the UNP to find out what their game plan was.
The reports she was getting from the
security chiefs indicated that given the massive success of the Jana
Bala Meheyuma, it was looking more and more possible that the crowds
would bypass Lipton Circus altogether and converge on President's
The security chiefs gave the President
specific instructions about what to do in such an event.
This was why Kumaratunga decided to send a message to the UNP
through Silva. She said the UNP should not attempt to use the Jana
Bala Meheyuma to cause problems in Colombo, adding since the JVP was
already putting pressure on her, the UNP causing trouble would only
strengthen the Marxists' hand.
Silva faithfully carried her message to
the UNP although he received a lukewarm response from its
leadership. With the march gaining ground and strength every day,
the President was really starting to get nervous. Summoning a few
faithful security men for a meeting, the President held discussions
about how security should be handled the day the Jana Bala Meheyuma
reaches Colombo city.
She was also of the opinion that before
the march reached Colombo, a notice of some kind should be issued
stating that marching to President's House would not be tolerated.
But her security chiefs informed her that a gazette notification had
already been issued demarcating President's House and its environs a
high security zone by the President's own signature.
But Kumaratunga remarked they could not
expect the people to remember such a notice, adding a new
notification needed to be issued, stating specifically that anyone
attempting to march towards President's House would be severely
punished. This was agreed upon and on July 8, a new gazette notice
Jana Bala Meheyuma also led to other conflicts within the UPFA. To
begin with, it looked to be only a shifting of positions within the
party, but as time passed it became bigger that there was a larger
political agenda behind the moves.
Last week, President Chandrika
Kumaratunga summoned UPFA General Secretary, Susil Premajayanth and
several other ministers to President's House. The meeting was to
discuss the way in which matters should be conducted following the
JVP's exit from the alliance and how their propaganda campaigns
should be countered.
At the meeting, President Kumaratunga
pointed out that according to the MoU signed between the two parties
at the time the alliance was formed, there were certain conditions
that had to be adhered to even if one party quit the UPFA. One such
condition was that the JVP had to inform the UPFA General Secretary
about its decision to quit 14 days before. One other condition was
that before quitting, the two parties were bound to hold several
rounds of talks about the impending decision to leave. The President
said the JVP had broken the two promises made when the alliance was
She also ventured an opinion on the JVP
obtaining 39 seats in the last election. "If the JVP had
contested alone, they would never have got 39 seats. They got 39
seats only because they formed the alliance, because of our vote
base. Having done that, now they are being arrogant and scoffing at
us. So we have a right to show our strength," said Kumaratunga.
All those who attended the meeting had
several suggestions to make. However, Premajayanth rejected them
all. He was most reluctant to make decisions that would hurt the JVP
in any way. As a result he came under heavy criticism from the
others. Premajayanth maintained however that as the UPFA General
Secretary, he had an obligation to ensure the two parties came
together and not that they drifted further apart. As a result,
Premajayanth was not invited for any of the other meetings.
President Kumaratunga was keen to
remove Premajayanth from his position as secretary and appoint
someone else in his place, thereby teaching the JVP a lesson.
Rejecting everyone's suggestions, the President nominated
President's Counsel Wijedasa Rajapakse to this position. Everyone
agreed that because of his legal background, Rajapakse was the ideal
man to take the battle to the JVP.
Several ministers also pointed out that
since Rajapakse had openly supported the P-TOMS, he had already
earned the JVP's ire. But the President was still reluctant to make
a final decision on the matter until the case before the Supreme
Court against the P-TOMS was heard and decided on. She decided that
by Friday (15) when the case came up, the problem would be solved
one way or the other.
She also made a statement about
Minister Mangala Samaraweera. "I have heard that Mangala is
trying to restart talks to strike up a deal with the JVP again. He
has said that I asked him to do it. For the record, I never did say
anything like that. And that Wimal Weerawansa is going here and
there saying rude things about me and the government. How can we
join people like that again?" she asked.
The President added that although
Minister Mangala Samaraweera and Wimal Weerawansa were keen to fix
the broken marriage between the SLFP and the JVP, she had no
intention of doing so.
"I have heard that this Ruwan
Ferdinands and Wimal Weerawansa turn up at Mangala's in the night.
They go and tell him not to appoint anyone else in place of the four
JVP ministers. They are saying we should ally ourselves again in the
Western Provincial Council and work together," she told her
ministers. Kumaratunga went on to say the JVP had also sent word
they were willing to accept Reginald Cooray as chief minister once
more. "They think they can fool me. That won't work," she
By all counts, next week will bring a
new UPFA general secretary to the fore.
Colombo was swamped by thousands of UNP supporters taking part in
the Jana Bala Meheyuma, there was tension inside the Supreme Court
complex where the JVP's challenge against the P-TOMS was being taken
On the first day the JVPers walked into
the court complex with the likes of Dinesh Gunawardena, Sripathi
Sooriyaarachchi and Segu Issadeen, but on July 12, they were nowhere
to be seen. However, next to Nandana Gunatilleke and Wimal
Weerawansa was an important personality - none other than Minister
Mangala Samaraweera's Coordinating Secretary, Ruwan Ferdinands, who
sat right next to Weerawansa.
Soon after the proceedings concluded,
the JVP decided to have a meeting of the political committee the
same day. The committee met around 6 p.m. with Somawansa Amarasinghe
at the head. On top of the agenda was the Jana Bala Meheyuma.
Weerawansa used his Rs. 150,000 phone and got in touch with several
friendly journalists and others to get information. The discussion
also centered on what course of action should be taken when the
Supreme Court gave its determination on Friday.
Gunatilleke had been put in charge by
the party to handle the court case and he briefed the party on the
progress. "Lawyers say that there are some positive signs. But
we should not have high hopes, according to them. The President is
concerned about the case and might take various actions," he
said. Weerawansa briefed the members on what transpired in courts
and said the situation could change once the Attorney General states
his position and the party should not have high hopes.
While the discussion was moving along,
Amarasinghe was curious to find out some other information. He kept
on interrupting Weerawansa asking him, "What is the
estimate?" repeatedly. "A lakh, lakh and half,"
Weerawansa replied. "One and a half lakhs is a big number, has
the tide turned towards the UNP?" Amarasinghe queried. The
reply however came from Gunatilleke who said the momentum shifted to
the UNP with the exit of the JVP from the government.
"It is not clear how long the UNP
can keep this going, but if it continues we would have to come up
with a plan," he added.
Amarasinghe observed it was very clear
that the President had become unpopular. "If the government
continues for two or three months it will become really unpopular.
If we are going to have Mahinda (Rajapakse) for the presidential
election we need to send a message to start a campaign inside the
party. The longer the delay, Mahinda will be losing."
Weerawansa also spoke of another
telephone call. "Not only the President, but we are also
getting hammered at the Jana Bala Meheyuma."
The discussion once again shifted to
the court case. The decision arrived at was that if the judgment
went against the party, the battle should shift to parliament. An
indication of the shift was to be indicated at a press conference as
well. Weerawansa also informed the members that Samaraweera had
printed anti-UNP posters on the Maj. Tuan Muthaliff murder and had
handed it over to the JVP to be pasted.
He said that earlier also there was a
plan to paste such a poster but the JVP did not go ahead when the
news leaked to the media. Weerawansa said that even if the party
refrained from distributing the poster, a decision should be made on
their stance on the content. Amarasinghe finally decided to go ahead
with the project simply because he did not want to disappoint
Samaraweera. "We can't disappoint Mangala, but we can't paste
other people's posters. So only for this time let's do this for