By Professor A. D. V. de S. Indraratna
A Memorandum of Understanding was signed between the PA and the JVP on 5 September binding the two parties for one year ending on 4 September 2002 to the fulfilment of 28 conditions. Some, including these two parties to the agreement, hailed it as an historic agreement. We do not consider it so historic as few such agreements have been signed in the past between the ruling party and a minority opposition party, such as the Bandaranaike-Chelvanayagam and Dudley Senanayake-Chelvanayagam pacts in order to gain political stability for the ruling party in exchange for certain concessions to the Tamil minority It was also not so historic in the sense that, as some PA stalwarts maintained at the Press Conference immediately following the signing, many of the conditions contained in the agreement were nothing new but promises given in the PA manifesto of 1994, but which the PA has not been able to implement during its last seven years in power.

The public reaction to this MOU was mixed. Some expressed joy that two warring parties have come together which would give political stability followed by some economic stability. Some others were not happy that a marriage between two parties with diametrically opposite political and economic ideologies would never work. Others expressed a sense of scepticism. Among them, the leader of the Sihala Urumaya, Mr. Tilak Karunaratna was very conspicuous. Having flirted with the UNP and the PA alternatively, Sihala Urumaya leader was now warning the PA about an alleged secret agenda of the JVP behind this agreement. Mr. Tilak Karunaratna only would know what type of secret agenda he was referring to, having the experience of the type of secret agenda on which he had worked not too long ago. Minister D. M. Jayaratne who signed the MOU on behalf of the PA and the other two PA stalwarts by his side at the signing ceremony, namely Ministers Richard Pathirana and Nimal Siripala de Silva were with broad smiles (cynical though they might have appeared to some from the picture in the Island of 6 September) indicating that "We, the PA have trapped these fellows again" as in the 1994 agreement in regard to the abolition of the Executive Presidency). Mr. Tilvin Silva was reciprocating with a similar smile as if the JVP has got some political mileage out of this agreement while Mr. Wimal Weerawansa was very pensive as if wondering whether the agreement would work at all even this time.

Be that as it may, let me now very briefly (for want of space) look at the substance of this agreement clause by clause, before making some general comments at the end.

* The first clause merely specifies the period of validity of the agreement

* The first part of the second clause makes provision for the PA to deviate from the Agreement with prior concurrence of JVP, while the second part specifies JVP obligation not to launch any action which would destabilise the PA Government but to extend its support for its continued stability. It thus appears at the very outset that the main objective of this agreement with the so called "devils" was to tide over the political crisis threatening the Government at least until such time as it can dissolve Parliament and go for a fresh election.

* By clauses 3 and 4, the Government respectively offered the JVP two soft carrots of cancelling the referendum first fixed for 21 August and subsequently postponed for 18 October and, resummoning the Parliament on or before 6 September. In any case, the Government might not have succeeded in the referendum with some of its own party members against it in addition to all opposition parties and cancelling it thus was a face-saving device, and Parliament was scheduled to be reconvened for 7 September and summoning it one day before was not a big deal. Of course, the JVP would gain some political mileage out of this, by going round the country and telling the people that they have already got two of its demands fulfilled by the PA.

* Clause 5 provides for the establishment on or before 24 September of the 4 Independent Commissions relating to Public Service, Judicial Service, Police and Elections, and before October 5 of the Constitutional Council. The Government is bound to introduce the respective bills for the establishment of the Commissions on 24 September, the deadline, when Parliament is scheduled to meet again. These bills are not new but contained in the 17th amendment drafted by the full agreement of all Opposition parties . However, there is a little snag : that is before presentation, these bills shall be again subject to "essential amendments acceptable to both parties, "the PA and the JVP. Even if these bills subject to their amendments are passed by Parliament, for these Commissions to be really independent, their members must be appointed by the Constitutional Council which has to be appointed before October 5.

* Clause 6 specifies the agreement of the two parties to prepare legislation for the establishment within six months of an Independent Media Commission. Media Commission is the brainchild of the JVP.

* By Clause 7, the two parties also agree to present to Parliament within six months, constitutional amendments for the abolition of the Executive Presidency and vesting of executive power in Parliament, changes in the electoral system to ensure reasonable representation to all ethnic groups, and holding the next General Election

under a caretaker Government. The first two need two thirds’ majority. The UNP and most of the minor opposition parties have already expressed their opposition to the complete abolition of the Executive Presidency. What is reasonable representation to minority ethnic groups may be a contentious issue. Who will form the caretaker Government? Would negotiations for such a Government fail as the negotiations between the UNP and PA failed? There may thus be many a slip between the cup and the lip in regard to implementation of some of the conditions of the MOU.

* Clauses 8(a) specifies that within the period of validity of this agreement steps should be taken to prevent escalation of prices of goods and services (vide list in MOU) which impinge on the cost of living of the people. From the items listed, it appears that this may have to be done by resorting to consumer subsidies. Already bus operators have threatened to raise their fares if diesel is not sold to them at a subsidy. What happens if the Gas Company raises its prices again? Can the Government get away by stating that it cannot intervene and ask the people to use firewood, as it did before? On the other hand, can the Government resort to subsidies in view of the already unsustainable budget deficit?

* 8(b) debars the Government from any privatisation of public or social property. Then what about the institutions listed in the Letter of Intent (LOI) to the IMF?. How could the Government collect US$ 275 million by 2002 March under this LOI? Can these be taken care of by Clause 8(c), which allows existing agreements and those flowing from them? In which case, how can one explain the firm stand already taken by the JVP that it would not allow the sale of the remaining Telecom shares within the period of validity of the MOU?

* Clause 8c, in any case, forbids any new "trade or financial agreements that could be detrimental to the interests of the country" Who is going to be the arbiter of this? With regard to the 2001 April agreement with the IMF, the views expressed by the JVP were diametrically opposite to those of the Government. Couldn’t the same thing happen with regard to any future trade or financial agreement/s also?

* By Clause 9, the Government has agreed to waive before the end of this month all cultivation loans given to farmers. This will, no doubt, place a corresponding fiscal burden unless a corresponding amount of additional revenue is not raised from some other sectors, or all parliamentarians sacrifice half of their salaries to the Consolidated Fund as stipulated in Clause 13. Why haven’t the two parties thought of the other segments of society like the fishermen equally burdened with debt?.

* By Clauses 10 and 11, the Government is obliged to appoint within three months respectively, a Task Force to investigate into long outstanding loans of Government Banks and other Institutions with a view to recover them, and a Parliamentary Select Committee to examine the problems of the members of the domestic business and industrial communities and recommend ways of rehabilitating them, which the Government has to implement. Such measures have been, in fact, long overdue.

* However, I do not see much point in appointing Specialist Committees to all ministries as specified in Clause 12. It would only raise the already unduly high ministerial costs without a corresponding increase in return. Moreover, there is already the practice of appointing advisors/consultants to ministries in addition to experts in the Central Bank and other Government Institutions whose services can be called upon as and when necessary.

* Clause 14 speaks of five cost-saving or expenditure-cutting measures. They are nothing new. They have been spoken of by many parties. Even the President has recently alluded to them but has not been bold enough to effectively implement.

Even the ban on the importation of luxury vehicles, though "is already in operation", according to the PA, the stable door has been shut only after the horse has bolted. Orders have been made a few months ago for the importation of 71 luxury vehicles by new MPs. Even the MP of Sihala Urumaya, which has pledged in its election manifesto (Section IX 2) to abolish all the perks such as luxury vehicles now enjoyed by parliamentarians, has ordered a Toyota Land Cruiser whose market price with duty is more than Rs. 6 million (according to media reports), much to the horror and dismay of many who supported Urumaya. He should have at least emulated his former allies, the JVP. They have not gone beyond a double cab, costing around Rs 2.8 million, even though they themselves are reported to have earlier said that they would be happy with a half million worth Indian Maruti.

* Clause 15 restricts the number of Cabinet Ministers to 20 including obviously both Prime Minister and President who also hold ministerial portfolios, and to an equal number of Deputy Ministers, and does not allow project or any other type of ministries, during the period of validity of the agreement. This is also nothing new. This proposal was first made by Sihala Urumaya in its Manifesto (see Section IX 1), in the preparation of which I myself had a great deal to do. There, it was for the entire parliamentary period. Why should it be confined to only one year as here?. In any case, the JVP should be congratulated if it can get the Government to implement this measure at least for one year both in its letter and spirit (see next para.)

The reasons for such restriction in the number of Cabinet Ministers and Deputy Ministers should be a significant reduction in Government expenditure (as presumably would have been in the minds of the parties to the agreement), and better co-ordination and increased efficiency. These objectives, however, will not be realised, if (1) the same perks and the same-sized staff, as enjoyed by the present Ministers are extended to the new deputies who would be assigned specific ministerial tasks, as reported in the Times of 9 September, (2) some of the very same inefficient and corrupt ministers (the President herself has referred to them on several occasions) are reappointed merely because of their sycophancy and loyalty. It is also reported in some quarters that, (quibbling on words) the President would appoint 20 ministers other than the Prime Minister and herself. Would the JVP be fooled by such manipulation in the MOU?

* Clauses 16 and 17 specify the appointment within one month of a panel to deal with investigation and prevention of fraud and corruption in the Government including the Armed forces in regard to procurement of equipment and material, and a Committee of trade unionists to review and suggest modification to labour legislation on the basis of the recently signed ILO Convention and the Government’s obligation to place on the statute book the necessary legislation to effect the recommended reforms. It is interesting to see what the Government would do in this matter, having avoided the introduction of the much-spoken Labour Charter for so long.

* Clause 18 obligates the Government to be transparent so as to ensure that all appointments, promotions and transfers are made without discrimination on any ground, while Clause 19 binds the Government to take speedy measures to ensure prevention of crimes by disarming all individuals and underworld gangs in possession of illegal arms. The PA , which came into power promising to do these, has failed to do so during the last seven years. What is the guarantee that it would fulfil them now within one year, the period of validity of this MOU?

* Clause 20 is a very problematic one. According to this, the PA cannot within one year from now introduce any proposals for devolution of power or any other controversial proposal without getting the consensus of all segments of society for such proposals. Implicitly this forbids the Government from having any peace talks with the LTTE. How can the Government then say that the JVP has no objection to it immediately resuming Norway-brokered peace initiatives? Is not the Government proposing to talk peace with the LTTE through a broker? Who is trying to fool whom?

* Clause 21 provides for the appointment of a high-powered Task Force to intervene in the amelioration of the living conditions of all communities and enhancement of relief for those affected by the terrorist war. To talk of amelioration of living conditions without talking of measures to cure the ailing economy is talking in a vacuum. Would then this Task Force also be merely one more addition to the large number of Task Forces already appointed by the President!

* Clause 22 spells out the Government undertaking to withhold any plans for privatisation of school education or university education. In this connection, the Government has emphatically denied that there are any such plans at present. However, the Government is allowing mushrooming of international schools, and tutories for foreign degrees without any monitoring. It is also surprising that no mention is made here in regard to the presently debated issues regarding the policy of media of instruction and the levy of education fees.

* Clause 23 requires the dissolution of Parliament on completion of one year of the MOU and the conduct of a free and fair election, under the new electoral system and a Caretaker Government proposed under Clause 7. This depends upon the smooth functioning of the Independent Commissions and the nature of the electoral system and the Caretaker Government about which we have already commented.

* Clause 24 repeats in different words what has been stated already in Clause 2 specifying the obligation of the JVP to help ensure the stability of the Government and thereby political and economic stability of the country. Clause 25 provides for the right of either party to withdraw from the agreement in case of failure to implement any part thereof or inability to resolve by negotiation any conflict that arises in regard to implementation.

* Clause 26 provides for the appointment of a highly representative supervisory panel to monitor the implementation of this agreement and develop modalities for a supervisory mechanism. This is the first time we have heard of a supervisory panel to monitor the performance of an elected Government. Has the need for it been agreed upon, because the Government has been placed on " probation" for one year!

* The last two clauses, 27 and 28 respectively provide for consensual agreement after discussion in case of dispute with regard to interpretation of any clause, and for any amendment or addition to the MOU by mutual agreement.

Concluding Comments

I have so far briefly commented on each of the 28 clauses of the MOU signed between the PA and the JVP on 5 September. This is an agreement of an unprecedented nature. The ruling party and a minority party of the opposition with diametrically opposite political and economic ideologies have agreed to work together for the performance of certain tasks, for a limited period of one year.

The agreement contains several good feasible measures as well as some controversial issues, but does not refer specifically to the burning problems of the country at present, such as the collapse of the economy, the terrorist war and the unbearable cost of living (including sky-rocketing fuel and electricity prices) the complete solution of which, we are aware, may require longer term measures than could be accommodated in a one-year agreement. A few measures have been proposed to redress the grievances of farmers and rehabilitate small enterprises, and to prevent the further rise of the cost of living. These would create an additional fiscal burden. This burden can be eased only if the cost saving or expenditure reducing measures are strictly and fully implemented. It is not enough to merely halve the number of cabinet ministers and deputy ministers to effect substantial saving. The expenditure incurred on each of them should be more than halved by even reducing the perks and privileges enjoyed by each of them at present. The MOU has - may be deliberately - avoided proposing any measures for the resurrection of the economy and generation of more employment and income. Nothing at all has been suggested to end the terrorist war either.

The main objective of the agreement thus seems to be mere political expediency to provide a new lease of life of at least one year to the ruling party which was losing its ground in Parliament. In order to ensure this new lease of life the PA has undertaken to fulfil within one year so many tasks which, despite its promises, it had failed to perform during the last seven years. The ruling party, almost by implicit admission, therefore, has agreed to be on probation for one year under the monitoring of its performance by a supervisory panel comprising non-legislators. In this sense, it is unprecedented in the political and constitutional history of any country!

What is the reciprocal benefit to the JVP, the other party to the agreement? They say that they have entered this agreement without any reciprocal benefit but to save the country from its present political and economic crisis. They have apparently chosen to join, from their point of view, the lesser of the two evils, the PA and the UNP, to extend the life of this parliament by a further year during which they themselves can build their strength and enhance their credibility. Demands made upon the PA by the JVP are by no means easy. Attempts to fulfil some, in fact many, of them would clash with the Government’s obligations to multilateral lending institutions, donor Governments and the international community. Conflicts and difficulties are bound to arise in the course of implementation of the MOU and the completion of its full year would indeed be an arduous task.

This was quite evident even from the ominous remarks made by Minister D M Jayaratne just after putting his signature to the MOU that " We cannot say that we will be able to keep to every comma of the agreement. Given the fast changing nature of the society we may not be able to do so. Where we can’t fulfil the terms of the agreement, we will seek the assistance of the JVP to make successful changes"(Island of 6 September). Such occasions are bound to be many and whether all will be successful is anybody’s guess.

Some ask the question why, did the PA, realising this, ever enter into this agreement with the JVP, may be their worst possible ally. The answer given is this : it is to avoid any defeat in Parliament until such time as the PA can dissolve Parliament and go for a fresh election - A case of playing for time. As long as this can be achieved, the PA may not mind even if the full year of the MOU is not completed. JVP, on the other hand, has nothing to lose. By the very fact that the PA has embraced them, JVP credibility has been enhanced, and whether the MOU is implemented in full or breaks down in mid course, they would be the winners. For they would capitalise on this MOU in an attempt to create an image before the people at the next election that they are the real saviours of the people. It is only a matter of time when we know who has fooled whom!.
11 September, 2001