Byline: Victor Ivan

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.

චන්ද්‍රිකාගේ ජනාධිපති සමය

A critical assessment of Chandrika Kumaratunga’s presidency: her half-hearted support for Mahinda Rajapaksa, the Cabinet decision to give her land beside Parliament, property dealings in Britain and France, her failure ever to declare her assets, her habits in office, her handling of the peace process and the ‘war for peace’, tenders and procurement favouring friends, and the argument that a president can have no immunity for crimes against humanity.

රෝමය ගිනි ගනිද්දි නීරෝ වීණා වාදනය කළා සේ, රටට ඉතිරි වී ඇත්තේ ද වීණා වාදනය පමණය

Like it or not, the Sri Lankan state is close to complete collapse, and what can be done depends on understanding why. Ivan works through examples of institutional failure, adding the Chief Justice, the Public Trustee and the Commissioner of Registration of Persons to cases already discussed, to show that every arm of the state is breaking down.

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.