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17th July, 2005  Volume 12, Issue  1

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                                    

Issues

Presidential 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......

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 Top Issues Stories

  > Sripathi's last chance (....Pot Shots)

  > BASL challenges the CJ

  > An eight million dollar question

  > Marine Drive threatens STC 


Presidential poll and the Elections Commissioner

Karu 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.

Supreme law

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, Karu Jayasuriya.  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 2005.  The 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.

Significant documents

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. Silva's signature.

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.

Illegal

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 by politicians. 

"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 administrators.  SLFP 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.

 Support

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 claim.   Contesting 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 agitation."  "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 lawyer.

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?

Sovereignty 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 Lanka"

Article 3:

      "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."

Article 4:

 "(a) The legislative power of thepeople shall be exercised by parliament, consisting of elected representatives of the People and by the people at a referendum:

 (b)      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:

(c)   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 to law;

 (d)The 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 Court."

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 of parliament."

Article 63

      "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."

Article 83(b)

      "(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."


Elections 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 official said.

Historical factors

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 itself.

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 South  which 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.

Provisions 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 22, 1999."

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.

Article 233

      "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."

Article 234

      "(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."


BASL challenges the CJ

Chief 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. Weerasooriya.

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."

Not consulted

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 not consulted."

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 comments.

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.

In contempt

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 abstained.

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 inquiries."

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 Wellawaya Magistrate.

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 the wheel.

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.

Volatile situation

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 a "booruwa."

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.


An eight million dollar question

By Frederica Jansz

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 highest bidder.

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.

Urgent tender

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 container.

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."

President's note

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 competitors.

Specifications Changed

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.

Commission

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.


Marine Drive threatens STC

The 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 the country.

The school  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 implemented.

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 rejected.

"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 road  where 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 news.

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 later.

"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 added.

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," he said.

History of STC

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   three score  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 their game.

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.

 Among 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...


Sripathi's last chance

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.

The 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," she said.

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 Peiris.

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 President.

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 President. 

Mervyn's double games

Even 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.

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 response.

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. 

Gazette to counter Jana Bala Meheyuma

The 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 House itself.

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 was issued. 

Sidelining Susil

The 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 formed.

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 concluded.

By all counts, next week will bring a new UPFA general secretary to the fore. 

JVP's P-TOMS challenge

While 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 up.

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 Mangala's sake."


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