අඬමුද? සිනාසෙමුද?
This article critically examines the controversial tenure and actions of former Chief Justice Sarath Nanda Silva, detailing his abuse of judicial power for personal and political gain. It outlines his role in imprisoning S.B. Dissanayake to appease President Chandrika Kumaratunga, his subsequent legal betrayal of Kumaratunga following a personal insult regarding his behavior toward women, and his intimidation of treasury officials to secure an abnormally high pension. The author also provides a detailed investigative account of a 2004 incident near Diyawanna Oya, where police allegedly found the Chief Justice half-naked in a parked vehicle with a woman, using the cover-up of this event to highlight the systemic corruption and apathy within Sri Lanka’s political, parliamentary, and judicial systems.
Whither Justice?
A retired army commander and a respected engineer petitioned the Supreme Court over judicial appointments made without constitutional council approval. Victor Ivan records what happened: a bench including the Chief Justice heard the petition and then directed the Attorney General to establish whether the petitioners had abused the judiciary by bringing it. The message, as he reads it, is that nothing the President does may be questioned, and that asking is itself an offence. Neither man belonged to the UNP or sought party advantage; they went to the last place open to a citizen with a grievance about governance. The Court’s first duty is to defend the constitution against an executive assuming powers it does not have, and by making the protection of the President its duty instead it has annulled the constitution without replacing it — leaving the country, Ivan writes, with no fundamental law at all. Similar cases from the Organization of Professional Associations and the People’s Movement for Good Governance have met the same immunity ruling. What strikes him most is who is fighting: citizens who know they will lose, while the UNP, the JVP and the Jathika Hela Urumaya say nothing and parliament will not even debate it. A judiciary that abandons its supervision of the executive, he concludes, brings the country closer to Prabhakaran’s Reich, where no authority may investigate Prabhakaran.
The Future is Uncertain
Victor Ivan finds the President immobilised. He cannot abandon the JVP after the support it gave him at the presidential election, yet dropping it would mean placing full faith in Ranil Wickremesinghe, whom he does not trust; and a president dependent on the JVP is trapped in its framework, as Chandrika Kumaratunga discovered. Neither party can transform the other, so nothing moves without the JVP’s consent. Ivan sees the same deadlock between the government and the LTTE, each blocked by India — which will permit neither the oppression of Tamils in the north and east nor a separate state. He puts the negotiating gap in a simile: the LTTE asked for tens of thousands of buns, was offered thousands, refused, and is now invited to the table for one. A government proposing decentralisation within a unitary framework is offering less than the Bandaranaike-Chelvanayakam Pact of 1958, and cannot raise the offer while the JVP and Hela Urumaya hold it in place. With no negotiated route left, Ivan warns the LTTE may settle accounts by war and may seek borders drawn by community — an attack on the Sinhalese of the East making it impossible for Tamils to live in the south, and opening the way to massacre and mutual slaughter.
The President and the JVP
Victor Ivan argues that unless Mahinda Rajapaksa resumes talks in defiance of the memoranda he signed with the JVP and the Jathika Hela Urumaya, war will return. He has already tested the limits: Norway remains facilitator despite an undertaking to remove it, talks look likely outside Asia against a condition that they be held within it, and Anton Balasingham has been summoned without objection. But Ivan doubts the JVP will let him go much further, and explains why its leaders cannot retreat even if some now privately doubt their own conditions — admitting error would expose them to their own members as politically shallow, so they must keep defending a position that no longer fits. The President’s first problem, he writes, is choosing between the JVP and the country. He then draws the parallel with Chandrika Kumaratunga, freed from the UNP’s encirclement by the JVP only to find herself in its prison instead, and notes that Rajapaksa faces the same choice in far better conditions: the UNP fragmented, its alliances weakened, and the LTTE no longer friendly to it.
What Can Happen?
Victor Ivan returns to Johan Galtung’s warning that Sri Lanka might end up temporarily under United Nations administration if it fails to manage its crises. Having read Ivan’s An Unfinished Struggle, Galtung reasoned that a judiciary decayed to that degree implied equal decay elsewhere, and that only a failing state deteriorates so far. Ivan’s test is whether serious mistakes get corrected, and he finds no mechanism that does. An election was held without an elections commission because the President twice refused to approve a list the constitutional council had vetted and cleared; parliament and the judiciary both declined to intervene; and with the council’s own term expired, the police and public service commissions cannot be constituted either, making every transfer, promotion and disciplinary action in those services unconstitutional. A year after the tsunami, 6% of the required houses are built — seventeen years at that rate — and the country cannot yet say how many of its dead were men and how many women. He then reads the party system as collapsing: Thondaman reduced to seeking LTTE shelter, the UNP too decayed to reform itself, the SLFP surviving only on state power. Only the JVP and the LTTE retain vigour, and both, he argues, have spent their history accelerating the state’s decay.
Prabhakaran and the Presidential Election
Victor Ivan argues that the 2005 presidential election was decided not by the Sinhala people, the SLFP, the JVP or the Hela Urumaya but by Prabhakaran, who spoke on Heroes’ Day only after the result of his decision had been announced. Reading that speech, he traces why the LTTE leader wanted Wickremesinghe beaten: the ceasefire began boldly on both sides — roadblocks lifted, the ban withdrawn, a strategic route opened, demining agreed — but the Sri Lankan government would not even press for the Washington aid summit to be held on neutral ground, and talk of a ‘safety net’ confirmed a suspicion that nets are for catching fish. Campaigning on defeating separatism, invoking the lion flag while discussing federalism, and never once appealing on behalf of the Tamil people, Wickremesinghe lost, in Ivan’s phrase, both the branch he held and the branch he stood on. Prabhakaran instead installed the man the Sinhala people had chosen as their Dutugemunu against him. Ivan runs the Dutugemunu-Elara parallel through to its limits — this Elara is the younger man and will not request a duel — and sets out the options open to him, noting the warning that this was a final notice before a decisive struggle in the coming year.
Trends in the Presidential Contest
Three weeks from the 2005 presidential election, Victor Ivan sets out what each outcome would produce. Defeat ends the political life of whichever man suffers it, and fragments his party. A Wickremesinghe victory brings immediate dissolution and a parliamentary election that would cut the JVP and Hela Urumaya down, after which Ivan expects him to seek an SLFP coalition anyway to shield his peace programme from objection. A Rajapaksa victory requires no dissolution, since the Hela Urumaya could simply be added to the Alliance — though Ivan finds him harder to read, uncertain whether he would accommodate the JVP and Hela Urumaya or pursue an agenda of his own. He then turns to the arithmetic: the Alliance’s 45.60% in 2004 falls some 500,000 votes short of a presidential majority, and its 2004 total merely preserved what the SLFP and JVP had polled separately in 2001 rather than adding to it. The UNP’s losses since 2001 match the Jathika Hela Urumaya’s gains almost exactly, making those voters decisive. And the Tamil National Alliance vote, which nearly doubled in 2004, rests with the LTTE — which may back neither candidate, in which case turnout in the north and east will fall.
Sinhala Buddhist Vote Base and the Presidential Election
Six weeks before the 2005 presidential election, Victor Ivan works through whether it can be won on Sinhala Buddhist votes alone. He begins by conceding the JVP’s pre-2004 argument was arithmetically sound: had the SLFP, JVP and EPDP contested together in 2001 they would have outpolled the UNP-led alliance by 27,579 votes. Contesting as one in 2004 they gained only 5,019 votes on their separate 2001 total, took 108 seats without a majority, and were outpolled by the combined opposition by some seven lakhs — 46.04% against 53.96%. But a presidential election is a different instrument: two contenders, one national constituency, and a winner who must clear half the vote. Ivan estimates the Sinhala Buddhist electorate at 6,094,667 of roughly 9.16 million valid votes, meaning a candidate relying on it alone would need 75% of it — a target he does not think easily attainable. He notes too why minorities prefer the presidential system: with the Sinhala vote split between the main parties, their votes can decide who becomes head of state.
A Country Destroyed by Leaders
Victor Ivan argues that Sri Lanka has become, or is fast becoming, a failed state — a term its academics resist because they fear UN administration, while making no serious intervention to correct the country’s course. His test is the constitution: legislature, executive and judiciary alike decline to respect it, and none treats honouring it as a condition of the system’s survival. The 17th Amendment provides his illustration. A presidential campaign is underway with no elections commission in place, the President having refused to approve a name the constitutional council investigated and cleared. The elections commissioner, past retirement age and unable to leave his post because no commission exists, went to court and was told there was nothing the judiciary could do; parliament did not debate the matter at all. The constitutional council itself has been dormant for months, leaving Court of Appeal vacancies unfilled, with the IGP retiring in November and the terms of the Police and Public Service Commissions expiring. Appointing new members falls to the Prime Minister and the Leader of the Opposition — the two men now contesting the presidency, neither of whom appears interested.
The Mahinda – Anura Equation
The President has named Mahinda Rajapaksa her party’s presidential candidate and her own brother its prime ministerial candidate, though only the first nomination was asked for — and done while an amendment making her SLFP leader for life was being introduced. Victor Ivan reads it as a chess move of some cunning: in every sequence of elections, a defeated Mahinda loses even the seat he holds while Anura Bandaranaike emerges as leader of the opposition, and family control of the party survives the defeat. Behind it sits the unresolved question of whether the presidential election falls in 2005 or 2006, and a chain of unanswerable questions about what the Elections Commissioner will decide, whether the President will seek a Supreme Court interpretation first, and what either will do if they disagree. Ivan then turns to the parties themselves, arguing neither main party is democratic — the SLFP run by one family, the UNP by several — and traces the pattern of leaders seeking to escape their term limits: Jayewardene collecting undated resignation letters from a five-sixths majority and dreaming of a third term until Premadasa stood against him, Kumaratunga collecting the same letters from twenty-three deputy ministers in 2000 with the judiciary’s support. Her dreams end, he concludes, only if Mahinda can become a Premadasa.