Ball and chain syndrome

The failure of the latest round of talks on 10 December between the warring political foes in Colombo dashed any hope for an early solution to the over-a-month-old political impasse. After the expiry of 15 December 2003 deadline set by the two leaders, no fresh deadline has been set. Earlier on 5 November, President Chandrika Kumaratunga, who belongs to the opposition Peoples Alliance (PA), in a constitutional coup declared emergency in the country. Prime Minister Ranil Wickramasinghe of the United National Party (UNP), which holds majority in the parliament, was on a visit to the United States and it was in his absence that on 4 November 2003, President Kumaratunga sacked the ministers for information, defence and home, suspended parliament for two weeks upto 19 November and ordered deployment of the troops at key installations.

President Kumaratunga has so far been able to sell her drastic measures on the grounds of the alleged threat to national security arising from the submission of the proposals for the Interim Self-Governing Authority (ISGA) by the Liberation Tigers of Tamil Eelam (LTTE) on 31 October. While most political analysts and Sri Lanka watchers bought her story, the question remains whether allowing the LTTE to put across its proposals constitutes what President Kumaratunga calls "making too many concessions", and warrants the imposition of emergency. The president's drastic action in reality has more to do with the UNP government's adventurism in submitting a motion for impeachment of the controversial Supreme Court Chief Justice Sarath N Silva. The move sought to arrest an impending judgement from the apex court as to who really is the 'boss' of the defence forces as well as the government of Sri Lanka. Since any impeachment motion against the president ultimately has to be referred to a referendum by the chief justice, many Peoples Allaince (PA) leaders saw the impeachment of the chief justice as the first step towards impeaching President Kumaratunga. The president has asked for the impeachment motion to be withdrawn.

Old rivalry and biased judiciary

The rivalry between the president and the prime minister in Sri Lankan politics has been continuing for over a decade. But it has become even more apparent since the UM' came to power after the last general elections held in December 2001. While President Kumaratunga welcomed the start of negotiations with the LTTE, she gradually hardened her stand. Meanwhile, the government and the LTTE signed a ceasefire agreement in February 2002 and formal peace negotiations started in September 2002. The talks broke down in April 2003, in large part because of Kumaratunga's increasingly provocative actions, in league with sections of the armed forces. The last two rounds of talks were disrupted by naval incidents involving the seizure or sinking of LTTE vessels. To add to it, on 25 October 2003, Kumaratunga wrote to the Norwegian prime minister, Kjell Magne Bondvik requesting the recall of the head of the Sri Lanka Monitoring Mission (SLMM), Major General Tryggve Tellefsen. The president also wrote to the armed forces chiefs on 24 October 2003 directing them not to follow any of the SLMM's instructions or advice.

Since the UNP came to power, President Kumaratunga has sought to maintain her direct control over key elements of the state apparatus, particularly the security forces. For long, the government and the president have been engaged in a feud over who decides top appointments. Kumaratunga's extention of the service of navy vice admiral, Daya Sandagiri and army commander, Lionel Balagalla—regarded as her supporters—beyond their due retirement dates and her overruling a proposal by interior minister, John Amaratunga for a similar extension for the present inspector general of police were significant. In an attempt to counter the president's move, the defence minister promulgated regulations to retire commissioned officers of the Sri Lanka Army at the age of 55, which, however, was promptly referred by the president to the supreme court under Article 129 of the constitution.

In September 2002, the UNP government sought to clip the power of the president by bringing the controversial 19th amendment to the constitution, which, among other things, sought to amend Articles 49 and 70 of the constitution to curtail the president's powers to dissolve parliament unilaterally after one year of the previous elections. About 20 odd members of parliament from Kumaratunga's own party reportedly supported the government's move. The amendment also empowered parliamentarians with "cross-voting rights" so that they could vote according to their conscience without being deprived of their seats for defying party discipline.

On this occasion, the supreme court led by Chief Justice Sarath N Silva came to the president's rescue and shot down the proposed 19th amendment. The court ruled the sections empowering MPs with cross voting rights as unconstitutional. As for the president's power to dissolve parliament, the bench ruled that apart from ensuring the support of a two-thirds majority in parliament for it, the nation at large has to endorse it in a country-wide referendum for the 19th amendment to become law. The court however added a caveat that no referendum was necessary if the present one-year period restricting the president from dissolving parliament was extended simply to a three-year period—a two-thirds majority alone would suffice for the purpose if the 19th amendment were on those lines. Since constitutional amendments could be made with two-thirds majority, the order of a referendum raised questions about the independence of judiciary.

The supreme court also struck down the proposed 18th Amendment which provided that "no legal suit or proceedings shall be instituted against the Constitutional Council (CC), its chairman, a member, the secretary or an officer of the council regarding any act done or omitted by them in performing or discharging any duty or function, conferred or assigned to them under the Constitution or any other law". It also sought to empower the Constitutional Council to make rules to set out procedure and guidance to be followed by it while performing duties and actions assigned under the constitution. The 17th amendment, which through which the Constitutional Council of Sri Lanka was constituted, provided for legal action to be taken against council members under the fundamental rights provisions in the constitution. The supreme court, however, upheld constitutional validity of such impunity under the Prevention of Terrorist Act (PTA) of 1979, and allowed the judiciary to function under the order of the attorney general and the defence minister.

During the hearing on the defence minister's regulations on retiring commissioned officers at the age of 55, the chief justice criticised the government's conduct and indirectly tried to cast aspersions on the government-LTTE ceasefire agreement. As the outcome of the verdict on the issue was clear, on 3 November, the ruling UNP announced its decision to place the motion for the impeachment of the chief justice. The motion was scheduled to be tabled in parliament on 6 November after the government parliamentary group sources claimed that, as required by the constitution, they already had the signatures from the required number of parliamentarians to move the impeachment. President Kumaratunga decided to strike back and suspend parliament. By suspending parliament, the president effectively stalled any impeachment proceedings against Justice Silva or herself.

On 4 November, the supreme court sent its determination on the defence minister's proposal for retirment of commissioned officers to the president. As expected, the supreme court held that the president shall exercise the executive power of the people including the defense of Sri Lanka, and that the minister of defence has no legal authority to amend the existing regulations under the Army, Navy and Air Force Acts. The power to frame regulations is vested only with the president, said the supreme court.

'Emergencies' of convenience

On 31 October 2003, the ME submitted its proposals which, among other things, calls for the establishment of an Interim Self-Governing Authority (ISGA) which some political commentators describe as "nothing but a restatement of the LTTE's demand for Tamil Eelam, or an independent Tamil state in north-east Sri Lanka". While questions have been raised about democratic pluralism, Article 2 of the proposals refers to the composition of the ISGA as nominated by the LTTE and government of Sri Lanka and members appointed by the Muslim community in the north-east. At the same time, the LITE proposals include control over marine resources, which would mean access to the seas, the power to engage external economic relations, direct access to funds for the reconstruction of the northeast and full administrative powers for the Tamil-majority northeast.

The LTTE proposals are all set to test the limits of permissibility of the right of self-determination within one constitutional framework. On 1 November, the Sri Lankan government said the LTTE proposals "differ in fundamental respects" from its proposals made on 17 July 2003, which offered the LTTE a Provisional Administrative Structure, but specifically excluded control over land revenue, police and security. But in an attempt to restart the process, the government said it was "convinced that the way forward lies through direct discussion of the issues". Given the substantive divergence between the proposals of the government and the LTTE, the declaration of emergency by the president on the pretext of threat to national security must be described as nothing but an attempt to block the peace process.

Sri Lanka was under emergency between 1983-2001 until the UNP came to power in December 2001. Thousands of people have suffered under the emergency regulations. Although the emergency regulations were allowed to lapse in July 2001 due to the lack of support in parliament, the president issued regulations under the PTA providing that "any person who had been remanded…in terms of any other written law, and has also been connected with or reasonably suspected… with any unlawful activity within the meaning of the PTA, shall be deemed to have been remanded under the PTA".  In effect, all those who were detained under the emergency regulations were thus brought under the PTA.

Immediately after the declaration of the state of emergency on 5 November, President Kumaratunga asked the chairman of the government-owned media group, Lake House, Nalin Laduwahetty to leave, making it clear that she seeks to stifle freedom of expression and opinion. Back in 1994, President Chandrika Kumaratunga had established a number of committees to look into matters relating to the media. The committees' aims included broad-basing of the Lake House newspaper group; reform of laws relating to the media and to media freedom; establishing a media training institute and improving conditions for media personnel. The reports of all these committees were handed over to the president by the end of 1996. However, implementation of the recommendations set out in these reports has been slow.

On 9 December 2003, the president's spokesman, Harim Peiris said, "The president does not intend to and will not hand over defence responsibilities to anyone… Even if she wanted to, constitutionally she cannot". The judgment of the supreme court headed by Justice Silva on the defence minister's order on retirement age for commissioned officers has virtually ruled out any possibility for negotiation on matters related to the defence ministry. Prime Minister Wickremasinghe can neither meaningfully negotiate with the LTTE without total control over security forces nor can he accept Justice Silva's continuation in office by acceding to the president's demand for withdrawal of his impeachment motion. At the same time, President Kumaratunga does not have the necessary support in the parliament to ratify the emergency regulation by the parliament within 10 days as required under Article 155 of the constitution nor can the PA form a government. Therefore, the only option before the president would be to either back down for the sake of democracy and peace; or dissolve parliament and call for snap polls. As of now, despite the international community's concerns over the fragile peace process Prime Minister Wickremasinghe's government has virtually been crippled.

In reality, Sri Lanka is inexorably heading towards snap polls but the all-important question remains as to who will take the initiative. The president is unlikely to invite further international condemnation by calling snap polls. As she holds the constitutional authority to sack ministers and dismiss the government at any time one year after holding general elections on various pretexts, the prime minister may be constrained to take the controversial decision of calling for snap polls. However, the opinion of the international community may not influence Sri Lankan electoral politics. The rightwing Janata Vimukti Perumuna has already urged the president not to hand over home and defence ministries. Given such polarisation, not surprisingly, although both UNP and PA considered the holding of snap polls on many occasions since the December 2001 general elections, neither was confident of outright victory, let alone a two third majority.

The average Sri Lankan appears to be tired of successive elections and war, having voted for a presidential election in December 1999, general elections in October 2000, another round of general elections in December 2001 and local elections in March 2002. If snap polls are not held, Sri Lanka is unlikely to find permanent solutions either to the Tamil problem or the conflicts between the president and the prime minister. Any devolution of power to the LTTE will require a constitutional amendment, ie, a two third majority which the UNP does not enjoy. Justice Silva and company had already declared cross voting unconstitutional. In any event, President Kumaratunga would have opposed any deal signed by the UNP government as unacceptable for being a threat to territorial integrity.

The peace process with the LTTE has undoubtedly been influenced by the 'War on Terror' in the post- September 11 period and the lack of legitimacy of the LTTE and its methods at the international level. The LTTE has so far maintained a "judicious silence" and has refused to play the UNP ball game by blaming the southerners. As the southerners appear all set to fail the north and easterners once again, the question is whether LTTE will wait. There have been credible reports about forced conscriptions (including 80 child soldiers in October 2003 alone) by the LTTE, indicating its preparation for an impending war. But, neither the LTTF. nor the Sri Lankan government is keen to take the blame for starting another war. As the LTTE seeks international legitimacy, peace will have to remain in suspended animation at least until the expiry of the current president's term at the end of 2005. Even if there were no snap polls and the LTTE and Sri Lankan government were to "talk" to each other, a final settlement with the LTTE will remain a mirage because of the inherent contradictions in Sri Lankan politics and a flawed constitution and biased judiciary.

Chief Justice Sarath Nanda Silva

Admitted as an advocate of the Supreme Court of Sri Lanka in June 1967, having served as the attorney-general as well as on the president's counsel in 1996, Justice Sarath Nanda Silva was appointed the Chief Justice of the Supreme Court of Sri Lanka by President Chandrika Kumaratunga on 16 September 1999 and has since then been the sharpest weapon in the armoury of the president and a thorn in the flesh of the UNP.

On 3 November 2003, the UNP government decided to move an impeachment motion against Justice Silva on the basis of a complaint filed by nine retired judges from the high court, district court and magistrate's court before the speaker, Joseph Michael Perera in March 2003 to redress their termination from the courts and victimisation by the chief justice.

The nine judges—Mahanama Thilakaratne (ex-high court judge), HW Liyanage, (ex-district judge), C Hegoda, (ex-district judge), DM Siriwardhana (exdistrict judge), SP Bandaranayake (ex-district judge), DMTB Dissanayake, (ex-district judge), SW Surendran (ex-magistrate), LC Costa (ex-magistrate) and Hiran Ekanayake (ex-magistrate) —complained that some of them were terminated without any inquiry and others after pseudo inquiries that served prepared agendas. Justice Silva serves as the ex-officio Chairman of the Judicial Services Commission (JSC) which is in charge of appointments and disciplinary control of the district judges and magistrates and transfers of high court judges. The judges alleged that Justice Silva was "personally instrumental in getting rid of judges towards whom he was ill disposed as the Attorney General or influenced by political personalities". Some of the arbitrary acts said to have been committed by the chief justice include issuing circulars to judges threatening them with disciplinary action for not complying with his action on court hearings; resorting to disciplinary action against judges who have given judgments against the attorney general's department; taking action against judges based on complaints made to him by politicians close to him; and victimising judges who made judicial orders that did not find favour with him.

Justice Silva allegedly plays favourites in appointments to key positions, irrespective of seniority. In June 2001, a parliamentary opposition impeachment motion to remove him was restrained by the supreme court, which he heads. In August 2001, the International Bar Association (IBA) maintained that judges were removed by the chief justice without enquiry. Further, the IBA concluded that there was "an overwhelming need for an independent credible judicial system" in Sri Lanka. It detailed instances of lack of accountability, breach of natural justice and potential for undue interference and pointed out that institutions which should be protecting the rule of law, including the president, government and the chief justice, were acting to undermine it.

Justice Silva also "stunned" and "shocked" global civil society including then UN Special Rapporteur on the Independence of Judges and Lawyers, Param Cumaraswamy, by hearing a case against himself filed by trade unionist, Michael Anthony Fernando and later sentencing Fernando to jail for one year in February 2003. Fernando was treated like a hardened criminal while at the National Hospital for treatment and was tortured inside the prison bus by the jail guards while returning from hospital. Cumaraswamy said, "No one can be his/her own judge", adding that he did not know what crime Fernando had committed to warrant a year's imprisonment. Fernando was later released in October 2003 for "good behaviour".

In 2002, Victor Ivan's book The Unfinished Struggle exposed extensive misconduct and abuse of authority by Sarath Silva when he was the attorney general and as chief justice. However, Justice Silva has maintained a studied silence with regard to the revelations in the book. There has been no official denial of the allegations made in the book nor has the author been subjected to legal action.