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.
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.
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.
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.
The Joint Mechanism and the Coming Political Crisis
Having promised the Kandy aid conference she would sign the joint mechanism for tsunami relief in the north-east regardless of extremist pressure, the President has been called. The JVP, under internal pressure that has made the issue one of survival and dignity, has resolved to quit the government if she signs. Victor Ivan sets out the arithmetic: the JVP’s departure costs 39 seats, the Hela Urumaya’s likely departure another nine, and the Tamil Alliance’s 22 do not cover the gap. Refusing to sign preserves the government but damages her standing internationally, in her party and among the people. Her alternatives are a coalition with a UNP leader who will not strengthen her hand, inducing a large group of UNP MPs to defect — for whom, Ivan notes, she could probably secure judicial protection through the Chief Justice — or dissolving parliament, possibly resigning the presidency and contesting as prime ministerial candidate herself. He judges a parliamentary election would hurt the JVP and Hela Urumaya most, and warns that whichever course she takes the turmoil will not end soon, still less if the LTTE abandons the ceasefire.
Overcoming the disaster
Victor Ivan treats the December 2004 tsunami as a test the Sri Lankan state failed. Warning instruments existed and went unused; the armed forces were instructed too late to be effective outside the north-east where they were already concentrated. Forty-eight hours after the waves the government allocated Rs 100 million in urgent relief — a hundred rupees a head for a million destitute — and eight days later the President’s office put reconstruction at Rs 100 billion against the Central Bank’s provisional Rs 400 billion, a sum equal to a full year of government spending or three years of Tokyo consortium aid. In twenty minutes the country lost lives and property comparable to twenty years of war. Ivan argues the two catastrophes cannot be addressed separately, since housing tsunami victims alone would affront those displaced by the fighting, and calls for a two-year all-party government charged with physical reconstruction and with enacting a new constitution — something he thinks civil society will have to compel the parties to accept.
Does Prabhakaran have an answer?
Victor Ivan reads Prabhakaran’s Heroes’ Day speech as a shrewd account of southern politics. The LTTE leader traces the breakdown back to Washington, where the UNP’s participation in the aid conference denied his organisation equal-partner status; he rejects every interim administration draft the government produced, insists talks resume on the LTTE’s own ISGA proposals, and refuses to see an interim authority tied to a final settlement — suspecting the President of wanting to please the JVP, mislead the international community, or simply prolong matters indefinitely. He then challenges every southern party to state publicly where it stands on territory, nationhood and self-determination, and warns that Tamil patience has limits. Ivan judges the ball now in Sinhala hands and finds none of them willing to hold it: Wickremesinghe wanting the talks to last until he is President, the President subordinating the ethnic question to her own invalidation problem, and neither able to move without the JVP’s consent. He closes with a warning that the Sinhala people may come to detest their own leaders enough to say Prabhakaran is good for us too.
When must the Presidential Election be held?
Was Chandrika Kumaratunga’s second term due to end in December 2005 or December 2006? Victor Ivan works through the constitutional arithmetic. G.L. Peiris holds that the public oath of 22 December 1999 governs, making the election due in 2005; Mangala Samaraweera replies that a two-term president is entitled to twelve years, placing it in 2006 and resting on an oath the President is said to have taken in secret on 12 November 2000. Ivan tests the twelve-year claim against J.R. Jayewardene, who served two terms and got eleven: having gone to the country early in October 1982, he took his second oath in February 1983 and lost a year. Article 31(3A)(d), quoted in full, sets the term from the date of the oath. He then explains why she took the December oath at all — after the bomb attack on her campaign, her advisers invoked the doctrine of necessity so that her death would not force a fresh election, an insurance that has since become a liability. A secret oath cannot invalidate a public one, he concludes, and any attempt to make it do so will bring on another crisis.