Possible scenarios after no-faith motion

By Victor Ivan

But on a parallel plain, the idea of forming a two party government — a PA-UNP dictatorship of sort — is also being floated. 

The chief spokesman of this idea is Minister and SLFP General Secretary S. B. Dissanayake.

The prime objective of the no-confidence motion against the government is to form an all-party government and then set up four independent commissions for elections, the police, the public service and the judiciary.

However, these aspirations of advocates of good governance and democracy, will not be fulfilled if the two major parties move towards forming a national government of dictatorial type.

In any event, the passage of the no-confidence motion against the government depends on the support of the JVP and even on the sole Sihala Urumaya vote. These two parties are yet to make their stand known in unambiguous terms.

If the 11 MPs of the JVP and Sihala Urumaya refrain from voting and all other MPs use their votes as members of the government and of the opposition, the government will be able to defeat the motion by a majority of five votes. But, even in such a situation, the opposition will need only three votes from the ranks of the government to defeat the government. If that happens the number of votes the government gets will be 106 and the opposition's vote will be 107. This means that even if the government succeeds in keeping the Sihala Urumaya and the JVP away from voting, there is a greater possibility of the government being defeated.

It is expected that a speedy and revolutionary change in the entire picture will start with the government's defeat at the no confidence motion. Although parties like the EPDP and the CWC which now remain with the government will back the new government for reasons known to the EPDP, will have to collaborate with any government that comes to power for its security while the CWC strategy had been to back the government and win its demands.

The most important question that arises next is how the MPs of the PA will act in the event of the government's defeat at the no-confidence motion.

No MP likes a dissolution of parliament. Nor does the President like the emergence of a government outside her control. She can avoid such a scenario only by holding on until Parliament completes one year and then dissolving it immediately.

A decision to dissolve parliament could give rise to a conflict situation with MPs opposed to such a move challenging it. It could even assume the nature of a conflict between parliament and the executive, and one of its outcomes might be the debilitation or the end of the system of executive presidency. 

In this conflict, a situation will inevitably arise in which a majority of Parliament will rise against the President, in the same way that Parliament rose against the interim injunction of the Supreme Court. It is that struggle that will determine the shape and the internal constitution of the government that will come into existence.

As a means of solving the present crisis, the President's could resort to the prorogation of parliament and then dissolve it after it completes one year.

However, if parliament wants, it can also act in defiance of the President's moves, in the same way the British parliament rose against King Charles I. The President's popular mandate is only 51%. However, the mandate of Parliament is 100%. It was Parliament which created an executive presidential system. It is Parliament which has the power to abolish it, if necessary. This conflict which is emerging between the Parliamentary system and the Presidential system might end either with the disappearance of the parliamentary system and the rise of a harsh dictatorial system or the disappearance of the executive Presidential system and the confirmation of the sovereignty of parliament. 

However, that conflict certainly will give a new dynamism and a new dimension to democracy.

There is a way in which such a conflict can be prevented. For that purpose, the President must become a D. B. Wijetunga. That is to say, she must protect her presidency by bowing to majority power and allowing those with majority power to form the government they wish. That is the best decision to be taken in the current situation.

The writer is the Editor of Ravaya

Dambulla dilemma

We thought we should write about 'cricket' cases- the rest of this newspaper is about 'constitutional' cases anyway. And the latest verdict in the former is that the Rangiri Dambulu International Stadium has been built without proper sanction from the relevant authority- who apparently is the Commissioner of Buddhist Affairs who refuses to give that permission because liquor will be consumed on the premises when matches are played!

The dispute in the Cricket Board has therefore literally spilled on to the playing field. Enter the Mahanayakes. They, along with the chief priest of the Dambulla temple- the Venerable Inamaluwe Sumangala Thera of Kandalama fame-threaten a protest campaign if Dambulla is scrapped as a cricket venue. Result- the matches are shifted back to Dambulla! 

So, what have we got here? A multi-million rupee stadium built on somebody else's land, A Buddhist commissioner saying matches cannot be played there because liquor will be consumed and Chief priests- who are anti-everything-that-is-British except cricket- fighting to have cricket played there. Stop the matches and you let an international stadium idle in sunny Dambulla weather. Play them and you violate 'Suraameraya majjapamaa dhattaanaa.' Tough one this, even for B. C. Cooray.

But we are not without precedents here. Remember, the much-in-the-news CJ has ruled in a fundamental rights case that jobs are not for Bhikkus. That is a lay pursuit, says His Lordship. Then how come these respected reverends are agitating for cricket at their doorstep, Your Honour? Maybe you could constitute a three judge bench to deliver a restraining order on cricket being played at Dambulla. Then again, may be not, Your Honour; you don't need anymore sermons from Shakespeare, do you?

But then, who needs intervention from the courts of law when we have the indefatigable Mangala Samaraweera? Maybe he hasn't still heard of this problem; if he had, Dambulla would probably have been razed to the ground by now, courtesy the UDA.

Why, it has now been proved that the stadium is an 'unauthorised structure' and Mangala's Law No. 1 states that if a structure is unauthorised it shall be demolished- protests, jobs, ethics and religious sentiments notwithstanding.

Mangala's Law No.2 states that if protests are of sufficient intensity, the demolished structure shall be rebuilt at state expense and re-opened by Mangala three months later. Now, wouldn't that be ideal for Dambulla? They can even rename it the Chandrika Stadium- to complement the Chandrika Weva in Embilipitiya!

Then, the moral of this whole building-on-someone-else's-land story? The moment the administration changes, everything done previously will be questioned and proven not to be above board. 

Thereafter, the project comes to a grinding halt-even if it's a construction worth millions, nay, billions. So, the Mahaveli died with Dissanayake, Gam Udawa perishes with Premadasa and now Dambulla is side-lined with Sumathipala.

Ah, I can picture Balapatabendi, PC, running hither and thither to get the deeds of the Kotte palace verified. After all, goodness knows what would happen to the palace if the Kotte Municipal Council votes green at the next election!

One road ends where another begins

Susantha Goonatilake

As this adventurer began his foray into Sri Lanka, I put out two very matter-of-fact articles. One was that our constitution that the Norwegians at the behest of separatists were keen on revamping, was far more accommodating of minorities than the Norwegian one. The second was that Solheim was an irrelevancy, at best, a joke imposed on us.

The government much to the chagrin of the LTTE seems to have realised the latter. But they seem to still embrace the Norwegian initiative thinking that the Norwegian Foreign Minister as well as Ambassador Westborg are to be trusted. But this is life in cloud cuckoo land.

Solheim's "unauthorised" trips to the US and Britain was one reason that the government dropped him. But this was not a private enterprise by Solheim. He would not have met US officials and got travel facilities to the US without the approval of the Norwegian government. Or does our government think that Solheim spent his private money on the trip and that he could get an appointment with US officials as a private citizen without the backing of the Norwegian foreign ministry? The government in addition seems to have embraced to its heart the sinister figure of Westborg who through Norwegian Redd Barna had planted the soldiers now fighting for Prabhakaran in the Vanni. It should immediately raid Redd Barna offices and trace their activities from Westborg's days as its head. If the government wishes, I could give confidential sources that will spill the necessary beans.

In 1994 the Norwegian University of Tromso entered into an agreement with Jaffna University for, it stated "the development of the Tamil Eelam areas". Professor Thurairajah who built the three storied air-conditioned headquarters of the Tigers signed this agreement. At this very moment the Norwegian embassy and this same University of Tromso are trying to sell the government a project that will use Norwegian ships to have round-the-Island surveillance of our seas under the cloak of helping our fisheries. I only hope that the government - and the Indians - are aware of this plan and its consequences.

The diplomatic demise of the buccaneer Solheism coincided with several other significant events. One was the call by Tamil political parties for postponement of the census. The reason is easy to see. Tamil separatism had killed many Sinhalese and Muslims, but far more Tamils. If the LTTE drove all Sinhalese and Muslims from Jaffna peninsula, their policies drove far more Tamils to Sinhalese areas and to the world outside. Last week the UN announced that there are 817,000 Tamil refugees in foreign countries and about 800,000 intently displaced people, the majority of the latter being Tamils living in Sinhala predominant areas. 

This would leave the once Tamil-only "liberated zone" of Jaffna peninsula with far less population than Tamils in Canada who today number 400,000. And the more the Canadian Tamils intensify their support of the Tigers, the more Jaffna would get depopulated and flee to Canada. The Wanni's Wetsborg soldiers could soon rival Jaffna's population.

As Tamil separatists were fighting a rearguard action against the truth that a correct census would reveal, they were following other desperate measures. Their dreams of putting into effect lies like the fake traditional homelands in tatters, they now wanted the LTTE to be recognised as the sole representative of the Tamils. This recent move by other Tamil parties was not motivated by fear of the LTTE - that is a crude interpretation. It was simply the only avenue left to keep alive an impossible dream. It was not a dream hatched in 1983 as our enlightened President keeps telling us, but a dream that goes back over a hundred years to Tamil separatism in South India and Sri Lanka. This was before the Fifty-Fifty proposal; an "attempt by artificial means to convert a majority into a minority" as the Soulbury Commission put it. Like the 50/50 dream, the separatist project to paraphrase that Commission again now seems "not only inequitable, but doomed to failure".

This failure is seen in a logical outcome of the Tamil separatist project, namely the growth of Islamic fundamentalism to counter the Tamil project. And when Hakeem asked for his pound of flesh in the form of the Muslim unit in the Eastern province and Chandrika seemed to grant it, he upset both history and Tamil separatists. He upset history because the multicultural Sinhalese had settled the Muslims in the East as the latter fled persecution at the hands of the Portuguese. 

But the local Talebans had forgotten all this and had invented another fictitious history to rival the inventions of the traditional homelands of the Tamils. This text unbelievably was being distributed by the government's own Muslim Affairs Ministry. 

The two rival fictions clashed and the Tamil Internet sites began spewing a thousand curses on Hakeem and the Muslim unit.

But the Tamil fiction had been supported by the outsiders that swamped the SLFP in l994 to turn it to the PA and brought in Chandrika as their champion. These included the writers of the Christian Worker and Yukthiya, two Christian and foreign funded rags as well as a whole set of others whose rise to importance was directly related to foreign NGO money. 

Supporters of the traditional homelands fiction included Jayadeva Uyangoda and Charles Abeysekera - the government's negotiators at the last peace talks as well as Dayan Jayatilleke and Joe Seneviratne, both convicted for waging a separatist war on the basis of this fiction. The latter two were rewarded by the Indians for their efforts and became ministers of the Indian puppet regime in the North and East. 

Many of this group attempting to control Sri Lankan opinion migrated to government media.

In the meantime, much to the chagrin of the government Rayappu Joseph, Bishop of Mannar, and Malcolm Ranjith, Bishop of Ratnapura and chairman of the Catholic Bishops Conference of Sri Lanka, advocated in London the de-proscription of the LTTE. Bishop Oswald Gomis announced that this was not true, saying that the Colombo Bishops Conference had done nothing of the sort. But this was disingenuous.

The Catholic hierarchy had traditionally been against the integrity of this country ever since they came as adjuncts of the Portuguese. They opposed all democratic reforms that would give the majority of the people equal rights. They vehemently opposed the granting of free education in the 1940s against the position of Buddhist monks and concerned Hindus. In the early l960s they vehemently opposed another democratic trend, the transfer of state assisted schools to the state. Father Thaninayagam built up Tamil separatist ideology. In 1987 when hundreds of thousands protested against the Indian incursion, the Catholic hierarchy welcomed the loss of sovereignty. Fr. S.J. Emmanuel has been a key figure in the Tiger propaganda machine.

The NGOs the other group that helped transform the SLFP official ideology was also now declaring through the Mahaveli Centre that the biggest stumbling block for peace talks was the proscription imposed on the LTTE. They had once taken Buddhist monks to Thailand to be trained by Norwegians on Buddhism. They then had been extensively exposed in the Sinhalese press including his attempts to brainwash monks with separatist propaganda. 

Surprisingly strong opposition to deban the LTTE, has come from the LSSP who with the CP constitute the dead, old left. Surprising, because they had been directly flirting with those groups now crying shrilly to unban the Tigers. The reason for the change, I do not know. And frankly, in historical terms one should not care. 

The LSSP is past history. The winds of the sails of the groups that brought Chandrika to power have gone out. Only stark reality remains, principally that Jaffna Tamils are probably less than half their earlier population. 

And that is the real end of the separatist road. Time to call the big bluff and declare true multiculturalism and true democracy. Time to dismantle the monocultures of the "Tamil only" enclave in Jaffna and "Muslim Only" enclave in Akkaraipattu and have other ethnic and religious groups there. Time to make these anachronisms more like multicultural, multiethnic Western Province.

Issues in contempt of court

One of the more ludi crous byproducts of the ongoing tussle between Parliament and the courts is the airy manner in which certain members of the legal profession in Sri Lanka, named and unnamed, have seen it fit to toss around threats to cite lawyers and laymen who critique the institution of the judiciary, for contempt of court.

This, of course, is nothing new. We have been distinguished in the past for our singularly claustrophobic inability to tolerate criticism of our institutions, particularly the judiciary. In this particular instance, suffice to say that the absurdity of the threat is very apparent by the inclusion of the Speaker of Parliament within the category of people who would be dealt with. That particular reference has now taken on an impetus of its own and one awaits with bated breath to see just how far Parliament would go to protect its own authority.

Regardless, as far as the lesser citizens of this country are concerned, one should not underestimate the potential that threats of this kind possess to inhibit public discussion of the prevalent crisis in the legal system. These are continuing inhibitions that lend themselves very particularly therefore to ongoing media lobbying for enacting a specific Contempt of Court Act as part of the reform of media laws, which the People's Alliance government promised in 1994 but never implemented.

For the moment, however, the issue of contempt of court will continue to be very much in the forefront of discussion as the country heads towards what promises to be a climaxing of the present conflict between the institutions of the legislature and the judiciary.

In this context, it is relevant that in developments of concern to Sri Lanka, activists and lawyers in India are now calling for a public debate and review of the Indian Contempt of Court Act, 1971. 

Their outrage has been fuelled by the increasing use of the Contempt of Court Act against journalists and social and human rights activists and movements in that country.

One case in point was the harsh punishment of six month's simple imprisonment meted out recently by the Madhya Pradesh High Court to a social activist, and four journalists of a Madhya Pradesh based English Daily.

They were sentenced following their outspoken comments regarding the acquittal of eight persons charged with the assassination of a firebrand labour leader who had angered leading industrialists in the area. Three prominent industrialists, four of their thugs and the hired assassin were charged with the crime. Paltan Mallah was sentenced to capital punishment while five others were sentenced to life imprisonment, including the two industrialists. However, the Madhya Pradesh High Court went on to acquit all the accused leading to a resurgence of protests throughout the country.

Rajendra Sail, a social activist and four journalists were then cited in a contempt petition by the Bar Association for remarks that they had made citing the judgement as 'rubbish' at a rally and public meeting and were subsequently sentenced by the High Court. The court, in sentencing, commented that, " Their conduct is so reprehensible that it would be a travesty of justice if the courts were to allow gross contempt of court to go unpunished without adequate sentence. Hence, having given our most anxious consideration, we are of the opinion that each of the contemners deserves deterrent punishment for the maximum term of six months".

The judgement has invoked massive protest in India by lawyers, activists and laymen. As one writer to The Times of India commented, "Justice has become a cynical game of checkers, confined to the theatre of the court. It intimidates dissent and resistance, and to that extent, it derides and uproots democracy, and clobbers people's constitutional rights, human rights, and civic freedoms. If the court is not seen as administering but disfiguring justitia omnibus, it is a sure sign that the whole of the judiciary badly needs either radical overhaul or total overthrow." 

The Sail judgement is not the only decision causing concern in India in recent times. Thus, the Indian Supreme Court has initiated similar contempt proceedings against members of the Narmada Bachao Andolan, a people's movement which had protested vociferously against a judgement of the Supreme Court on the Narmada Dam, permitting the wall of the dam to be increased. 

Those cited for contempt included well-known activist Medha Patkar and author Arundhati Roy. Thus, Amnesty International, in a special report published in early 2000 on the harassment of human rights activists, speaks of the Contempt of Court Act becoming a handy tool for the rulers and official development protagonists to silence the voice of dissent. These developments are in stark contrast to the past where the Indian judiciary has been careful to allow public scrutiny of its judgements and actions to an extent indeed unprecedented in the sub-continent. Indian liberality had, indeed, been used in Sri Lanka to urge a displacement of a strict interpretation of the rule of contempt of court. This had not, however, been evident in the decisions of our courts, which except for clearly political exercises like the S. B. Dissanayake contempt of court matter have been inclined towards conservatism.

The parallel ongoing developments in India and Sri Lanka regarding contempt of court are concerns that the lobbying campaign for a separate Act in Sri Lanka would do well to take serious note of. The campaign for separate legislation in Sri Lanka on contempt of court has hitherto proceeded on the basis that no institution, including the judiciary should be free from criticism and comment. Thus, where there is obvious injustice apparent in the functioning of the legal system the media can and indeed has a duty to highlight it. Fair criticism of judicial acts or judgements accordingly would not amount to contempt. Thus, it has been authoritatively stated in the United Kingdom that there must not be gagging of bona fide public discussion in the press, of controversial matters of general public interest, merely because there are in existence contemporaneous legal proceedings in which some particular instance of these controversial matters may be in issue. 

These are crucial questions that remain to be determined in this country at this moment in time, where more than at any other time in the past, the authority of the institution of the judiciary has been seriously damaged in the eyes of the public.

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