SC ruling shows a way out

Political uncertainty has gripped the country once again especially after the attack on the Kanchirankudah STF camp by LTTE-instigated mobs. The incident triggered a series of protests in the Trincomalee district and elsewhere with the LTTE inciting schoolchildren and civilians to take part in them, making it difficult for the authorities to use force to bring the situation under control.

The government acted patiently but the LTTE tried to fish in the troubled waters to gain political and military mileage.

The Tamil National Alliance blamed the police and the military for being just onlookers when those they claimed to be 'innocent' protesters were attacked by Sinhala mobs at Abeypura in Trincomalee.

All this could be a part of a complicated process of the LTTE to force the government to move out military installations from strategic points in the East.

It would seem to be evident that the motive behind the Kanchirankudah instigation was to clear the area of any military presence so that the LTTE could have leverage in the Muslim dominated Akkaraipattu.

The Muslims, however, insisted that the STF camp should remain there for their protection. The STF shooting took place only after the civilians broke into the camp premises and set ablaze some makeshift structures. It was an act of self defence. That the Sri Lanka Monitoring Mission found four bodies within the parameters of the camp confirm this claim.

The STF after all cannot be blamed for the shooting and it did so only after its patience ran out and got orders from above.

Though an inquiry has been initiated by the government, according to available evidence, there is very little that any government could do under these circumstances.

These offensives launched by the civilian mobs are somewhat similar to the manoeuvres of the Irish Republican Army in Northern Ireland to push the military installations out of the areas coming under their writ.

"The STF is an elite strike force and we should not get them to do normal policing which is the duty of the police," one senior minister told this column.

Though there are no immediate plans to replace the STF with Police in the East the government is now looking at the possibility of training the police to meet the challenges there.

The government admits that police need special training to tackle delicate situations. This is why Sri Lanka's High Commissioner in London Faiz Musthapa has been told by the government to establish contacts with Northern Ireland Police and to train our own Police on those lines to meet the challenges posed by the LTTE.

It is important to find out how the Irish Police are facing the challenges there with the IRA, because eventually we too would have to have our police instead of any elite force to do the policing in the East, a senior defence official said.

The present situation in the East is volatile, the LTTE first attacked the Muslim settlements in the East despite an agreement between Prabhakaran and Hakeem for peaceful cohabitation in the East.

During the week the situation turned out to be even more so.

To Muslims in the East, their grievance is that the government had not sufficiently and adequately addressed the problems faced by them, and to pave the way for Muslim participation in the administration of the North-East. They don't want to be dominated by the Tamils and be a minority under a Tamil majority administration. The length and the breadth of the Muslim problem is that they want to be equal partners in the administration of the East. But the LTTE Eastern political hierarchy thinks otherwise. It appears sometimes that the LTTE leadership in the Vanni is loosing its grip over the East or most of the decisions taken by the top brass in the Vanni do not trickle down to the ground forces of the LTTE in the East.

In this situation, SLMC Leader Rauff Hakeem is facing a daunting task. On the one hand, he has to be with the government to strengthen the hand of Prime Minister Ranil Wickremesinghe and on the other, he is tackling a bigger problem of keeping his flock together in the East.

Some of his own parliamentarians are rebelling against him.

How Mr. Hakeem will tackle this problem is the concern of the UNF today. Nine SLMC MPs boycotted Parliament for one week demanding a written assurance from the Prime Minister that their grievances would be looked into on a priority basis and the Muslims would be given their due place in a final settlement to the ethnic problem.

In this scenario it appears that the PA is not merely monitoring the political developments but is also fishing in troubled waters to scuttle the efforts made by the UNF for a durable settlement of the conflict.

The SLMC rebels did not want to vote with the 19th Amendment to the constitution, especially the Conscience Bill which will give any parliamentarian the right to vote according to his or her conscience thus defying the party whip. The amendment debarred the party from taking disciplinary action against such members.

The SLMC rebels felt that the bill would devalue their bargaining power and eventually lead to the dissolution of the party with the two major parties preying upon their members.

Though the amendment was for the particular purpose of vesting the power of dissolution of Parliament within its own authority, legal experts argue that this provision would be 'alive' as long as the constitution is in force, and it could create problems within the very foundation of the party system.

Whatever the fears entertained by the SLMC rebel MPs, they have been academic according the Supreme Court bench which scrutinized the 19th Amendment.

The court struck off the conscience vote bill from the Amendment upholding the arguments put forward by two eminent lawyers - H.L. de Silva and R.K.W. Gunasekera.

It is a special achievement for both these lawyers, especially Mr. de Silva after he challenged the constitution of the Special Presidential Commission set up during the J.R. Jayewardene period to probe charges of abuse of power by the late Prime Minister Sirima Bandaranaike.

Mr. de Silva's arguments were upheld by the Chief Justice and the rest of the judges and the ruling naturally had shaken the UNF government.

The court has unanimously held that the 'conscience vote' is illegal. The court has also adopted the Indian system whereby it has held that certain sections could not be changed even by referendum. Senior lawyer R.K.W. Goonesekera made a strong argument during the proceedings which the court would seem to have accepted, striking off clause 6 which states thus:

"A Member of Parliament who speaks or votes or abstains from voting on any amendment to the Constitution contained here according to his own belief or conscience or free will shall not be expelled or suspended from membership or be subject in any disciplinary action by the organised political party or the independent group as the case may be on whose relevant nomination paper his name appeared at the time of his becoming such member of Parliament for having so spoken or voted or abstained from voting and the provisions of such paragraph (a) of paragraph (13) of Article 99 shall not apply to such member and the seat of such Member in Parliament shall not thereby become vacant."

But an independent lawyer argues that this part of judicial review adopted by the Indian Supreme Court, sometimes gives drafters nightmares by striking off chunks from draft bills. "It is not the practice in our country since there is no provision for judicial review here". But he concedes that the Supreme Court decision is towards the right direction.
The Supreme Court has, also ruled that the rest of the provisions in clause 2,3,4 and 5 need to be approved by the people at a referendum.

Many legal experts have expressed their reservations on the subsequent suggestion made by the Supreme Court that the fetter imposed on the President by the constitution that the incumbent should not dissolve parliament for one year could now be extended to three years by a two thirds majority, terming it as unsolicited advice by the Supreme Court.

One legal expert told this column that the court may have wished to please both sides, by striking off one provision completely and making a suggestion on a matter of policy.

Another lawyer who is close to the PA ranks said the court could have listened to the other parties too before making a suggestion which he believed to infringe on the policy. "It is more political than a judicial decision," he added. The court may have had second thoughts if they provided an opportunity to others on this question which never did come up for a judicial decision.

However, it appears that the 19th Amendment itself is a indictment on the UNP lawyers and drafters who gave their mind to it for a long period.

The question is who drafted the 19th Amendment especially clause 6 of this amendment on behalf of the UNF government? No doubt they put their hearts and souls to it, but to no result.

Some analysts believe that Chief Justice Sarath N. Silva is now in a stronger position after the judgement on the 19th Amendment. During the past two years, there have been moves to impeach him while even recently charges were made against him at a BMICH ceremony attended by British and Sri Lankan legal luminaries.

Can the government now proceed with the move to impeach the Chief Justice?.

All this will leave Prime Minister Wickremesinghe little flexibility to decide as to what they should do next.

The answer may be a snap poll. But the President once again challenges the UNF, saying that she would not dissolve parliament.

Under Article 70 there is a discretionary power given to the President to prorogue, and dissolve Parliament, but a fetter has been placed in a subsequent section saying the President however should not dissolve Parliament within the first year after a general election unless resolved by Parliament.

This section has now become the subject of discussion among political circles. Some believe that even if parliament resolves to dissolve itself within its first year, the President has the discretion to take her own decision after assessing the situation in the country.

PA lawyers argue that the President's power is discretionary and not mandatory though Parliament resolves by itself to dissolve it since the Article by intention gives the discretionary power to the President when it said, "the President may from time to time.."

But others argue that this discretion has been placed with a fetter when a subsequent provision states that President shall not dissolve Parliament… unless it is passed by a resolution in Parliament.

They argue the only instance the President could dissolve parliament within the first year is when Parliament resolves by itself to do so and therefore it is mandatory on the part of the President to dissolve it.

However, since there is a controversy over this section, this also is likely to go before the Supreme Court for a determination - but only if the President challenges the UNF decision to go for a snap poll.

A snap poll, places a burden on the entire country and its economy which has faced two general elections in as many years. In the circumstances it may be more appropriate for the government to go along with the suggestion made by the Supreme Court to extend the limitation placed on the President from one year to three years.

For this too a two thirds majority in Parliament is required and it would be done after having discussions with the President on the strength of the letter issued by the President to the Speaker in terms of the constitution.

Most of the analysts are of the view that a three-year period would be sufficient for a government to make itself popular if they really want to work for the benefit of the people.

Now that the crossovers may not happen after the Supreme Court ruling on the 19th Amendment, the government could work towards the alternate solution offered by the Supreme Court which would lead to practical cohabitation between the UNF and the executive President.

One politician said that in that sense the court had acted in a responsible manner understanding that there is a crisis brewing between the legislature and the executive.

"The court ruling has offered a way out through dialogue and co-habitation. In fact the President at one stage expressed her willingness to extend the fetter on dissolution. So in the circumstances, the court has acted in the interest of the country," he added.

However, all in all, the judgment had discouraged crossovers, which had in the past reduced small parties to nothing or dead letters.

On the other hand experts are of the view that the drafters have faulted when drafting the preamble to the constitution.

In their opinion, the preamble to the amendment should justify the amendment in terms of the constitution which was lacking in this piece of legislation.

However, eventually if the government is unable to go for a snap poll, it would need to consider cohabitation because it would be rather difficult for the government to muster a two thirds majority to pass the other provisions in the amendment.

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