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Give back the ministries and safeguard democracy
By Desmond Fernando

File photo: Checkpoints appeared briefly as President Kumaratunga took over several key Ministries and rumours spread of Emergency regulations being declared.

In late October 2003, the LTTE had sent its proposal for an Interim Administration and the Government was preparing its response. Suddenly on November 4, 2003 while the peace process was in progress President Kumaratunga took over the Ministries of Defence, Interior, and Mass Media.

Civil society and religious groups are now trying to repair the damage done by this move. It is therefore important that the more obvious consequences of the takeover should be kept in mind by these groups and the people. The first consequence is its impact on the peace process. The second consequence is its impact on parliamentary democracy. The foundation of the peace process is the Ceasefire Agreement of February 2002. Clearly it is vital that whoever is in charge of the peace process should be in charge of Defence, the Police Force, and the Prisons. A plain reading of the Ceasefire Agreement makes this clear.

Control of the Armed Forces a Prerequisite for Peace Negotiations
The obligations undertaken in the Ceasefire Agreement clearly includes articles 1.2, 1.3, 1.4, 2.2 and 2.3.

Article 1.2 provides that "neither party shall engage in any offensive military operation. This requires the total cessation of all military action and includes, but is not limited to such acts as:

a) The firing of direct and indirect weapons, armed raids, ambushes, assassinations, abductions, destruction of civilian or military property, sabotage, suicide missions and activities by deep penetration units;

b) Aerial bombardment;

c) Offensive naval operation.
Thus clearly whoever is in charge of the peace process must be in charge of the Army, the Air Force ( to comply with article 1.2 b) and the Navy (to comply with 1.2 c).

The Agreement also includes separation of forces articles 1.4 and 1.5.
Articles 2.2 and 2.3 also include undertakings which also have to be complied with by the Armed Forces before certain deadlines. These undertakings may not have been completely fulfilled as yet.

Control of Police a Prerequisite for Peace Negotiations
For example article 2. 12 provides that "The Parties agree that search operations and arrests under the Preventions of Terrorism Act shall not take place. Arrests shall be conducted under due process of law in accordance with the Criminal Procedure Code".

Control of Prisons a Prerequisite for Peace Negotiations
Again article 2.13 provides that "The parties agree to provide family members of detainees access to the detainees within D-day + 30".

Responsibility of Civil Society and Religious Groups in respect of the Peace Process
The Prime Minister has already pointed out that the control of the Armed Forces is a prerequisite for negotiations. The Prime Minister has also stated that he is willing to allow the President to be in charge of the peace negotiations if she is to retain the defence portfolio. This position is logical.

It is vital for civil society and religious groups to persuade the President to be logical in the interest of the country. If it is her position that the Prime Minister and Government should be in charge of the peace process she should return the Defence Ministry, the Police Force and the Prisons to the Government. If she insists on retaining the Defence Ministry she must also take over the Peace Process. This will apply even more strongly to future negotiations where the negotiators will have to arrive at agreements with regard to the Armed Forces, Police etc.

Impact on Parliamentary Democracy
Why the person responsible for the Ministries of Defence, Interior, and Mass Media should be answerable to Parliament. Under our Constitution only a Minister is answerable both to the Cabinet and to Parliament (Article 45 (3))

The President is responsible to Parliament (Article 42), but there is no provision in the Constitution to ensure how such responsibility can be ensured. The President is not answerable to Parliament.

Ministers are answerable to Parliament and thus the people. The following are examples of how ministers are answerable to Parliament and thus the people. (1) Questions can be asked in Parliament from a minister on any matter coming within the purview of his/her ministry. Parliament is open to the public and the press. Such questions and answers are frequently reported in the press. Under the Constitution no questions can be asked in Parliament from the President about a ministry which is under her.

(ii) Parliament has to approve the budget estimates for each minister. The minister has to defend the performance of his/her ministry. When the estimate for a ministry is taken up Parliament is free not to vote any particular sum of money for a purpose within his/her ministry. In practice each minister is questioned about the performance of his/her ministry in Parliament. Parliament is open to the public and all proceedings are reported in Hansard. The press is also free to report and does report on such proceedings.

(iii) On urgent matters there can be a debate on any matter relating to a minister in Parliament on an "adjournment". (iv) A minister is answerable to the Public Accounts Committee of Parliament if any items of expenditure do not meet with approval of the Auditor-General.

(v) A minister is answerable to the public Petitions Committee. For example an employee of the ministry could complain to the Public Petitions Committee and the minister has to explain.

(vi) A minister is answerable to the Consultative Committee of his/her ministry which includes members of the Opposition.

Thus it is vital for the functioning of Parliamentary democracy, accountability and transparency that the Ministries of Defence, Interior, and Mass Media be returned by the President to the Government.

Religious groups and civil society have a duty to persuade the President that in the interest of democracy these ministries should be returned to the Government.

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