When the JVP politburo met last week, they were vociferous in their support for the recent decisions of the Supreme Court on matters relating to the import of crude oil and petrol prices. When cabinet met last Tuesday, they once again put off making any comments on the SC decision. The government appears to have adopted the hoary strategy of ignoring a problem until it disappears of its own accord. And this seems to have worked.

When LIOC first reduced their prices in keeping with the court ruling, some thought that would force the hand of the government; but it didn’t. Now with LIOC backtracking, the situation has changed suggesting that for a representative democracy to function effectively, the separation of powers doctrine has to be respected. Without that there would be chaos. At this particular moment in time, there is enough economic chaos worldwide and enough problems at the local level with collapsing commodity markets and so on without having additional problems in the form of a power struggle between the judiciary and the executive.

 Petrol dansela closed

One might safely say that there never has been a showdown of this magnitude between the Judiciary and the Executive ever before in this country’s history. The government controlled CEYPETCO dealerships never lowered their prices because of the court order but the foreign owned Lanka Indian Oil Company did, and for a few days, Sri Lankan motorists had a once in a lifetime chance to obtain discounted fuel. The government was to make a decision on the court ruling last Tuesday but the cabinet put off making a making a decision until January 7 in what can be seen only as a deliberate move to slight the SC.

The gamble worked and soon afterwards LIOC increased their petrol prices once again despite the court order that they had earlier obeyed. It appears that the LIOC realized that even LAUGHS whose chairman was a party to the fuel issue litigation in the SC was not selling petrol at the rates recommended by the court.

Last week, the government was making much of the fact that UNP national organizer S.B.Dissanayake’s brothers including Saliya Dissanayake was supporting it. This is not the first time that Saliya Dissanayake went his separate way. Around 1997/8 he joined the UNP briefly when SBD failed to have him appointed chairman of a pradeshiya sabha despite the fact that he had polled the highest number of preference votes. For the first time in his political career, SBD will be moving out of the Hanguranketha electorate and the Nuwara Eliya district to contest an election. He will be contesting from the Kandy district this time. For a man like SBD who aims at leading the UNP one day, the number of votes available in the sparsely populated Nuwara Eliya district is just not sufficient to make a national level statement.

When SBD was elected in 1994, he got a mere 38,372 preference votes from Nuwara Eliya. In 2000, at the height of his power, and without a single UNP polling agent in any polling booth, in the electorate, he got 78,903 votes as the PA candidate for Hanguranketha. In 2001, he came into parliament on the UNP national list. He came in through the Nuwara Eliya district once again in 2004, with 71,723 preference votes. Given the population density of the Nuwara Eliya district and the ethnic composition of the voting public, there is no way that he can even hope to come up to the 80,000 mark so long as he remains in Nuwara Eliya. Hence the shift to the Kandy district which has a much bigger voter base and is a bastion of the UNP to boot. By shifting to Kandy, SBD is obviously expecting to at least match the number of preference votes that Keheliya Rambukwelle got when he was leading the UNP in the Kandy district. SBD’s departure from the Nuwara Eliya district for the forthcoming provincial election will be a permanent departure.

It is reported that both Tissa Attanayake and Lakshman Kiriella are unhappy about SBD’s intrusion into the Kandy district. Even before SBD unexpectedly turned up in the hill capital, both Attanayake and Kirella were engaged in a cold war for supremacy in the district. Even though according to the party leader’s rules, the key office bearers of the party should relinquish their electoral organiserships, Attanayake refused to give up his electorate after he became general secretary and still continues to be the organiser for Kundasale. Despite the fact that Kiriella does not hold any key positions in the party, he appears more often than anyone else at UNP press conferences. It would appear that the party leader was keeping Attanayake in check by giving as much prominence as possible to Kiriella. SBD’s arrival in Kandy, now adds a completely new dimension to this struggle in the hill capital. Had it not been for the difficulty in finding chief ministerial candidates for the UNP, it is unlikely that SBD would have been allowed to switch districts.

Wayamba vacant

 The mere fact that SBD volunteered to contest for the Central Province chief ministership, highlights the UNP’s lack of a similar candidate for the Wayamba province. It’s only a few days more to the closing of nominations, but the UNP still does not have a suitable candidate for Wayamba. The difficulty is that with a man of SBD’s calibre contesting the Central Province, a candidate of similar calibre at least from some other sphere of activity, has to be found for Wayamba or the battle would be lost even before it began. There was a desperate attempt last week to get Sajith Premadasa to resign from parliament to contest as the chief ministerial candidate for Wayamba but Premadasa had refused. He has always been averse to any suggestion that he should contest at any level below parliamentary level. In the late 1990s, when he was active in Hambantota as a UNP organizer, but did not hold any elected office, Premadasa was invited to be the UNP’s chief ministerial candidate for the Southern Province but even at that time he turned down the invitation.

Its going to be pretty hard to get any UNP MP in Wayamba to resign from parliament to contest the PC election because the fate of the last person to do so, Asoka Wadigam-angawa, is still too fresh in everybody’s minds. In 1998, Wadigamangawa resigned from parliament at the request of the party leader to contest the Wayamba PC election of that year. He failed to win the council in what can only be termed as one of the worst elections ever held in this country and Wadigamangawa, who began his political career in the early 1980s as a parliamentarian has been stuck for the past decade in the provincial council.

Not having been in parliament, he was not able to enjoy the two and a half years of UNP power in 2001-2004 and has been in opposition throughout the past fifteen years. On top of that, the loss of parliamentary status also means that he has not been on the centre stage of politics for the past decade, an unimaginable position for a senior politician to be in. Even the media takes no notice of opposition leaders or even chief ministers at the provincial level. How many such individuals even make it to TV talk shows, or get interviewed by newspapers? The basic dictum is this: out of parliament, out of sight. In such circumstances, to expect someone like Sajith Premadasa, an aspirant to party leadership and one day the presidency itself, to contest as the chief ministerial candidate for Wayamba is asking for too much.

The only reason why S.B.Dissnayake is contesting as the chief ministerial candidate for the Central Province is because he is not in parliament anyway, and he sees the PC election as a way of getting his civic rights issue put to rest once and for all. Had he been in parliament and without a civic rights problem, it is unlikely that he would have resigned from parliament to contest at the provincial level.

A surprising development on the government side is the hitherto unannounced decision of Anura Priyadarshana Yapa to resign from parliament to contest as the chief ministerial candidate of Wayamba. The problem that the ruling party has is that the present chief minister of Wayamba is in no position to contest as the chief ministerial candidate and they need someone else to lead the election campaign. They have the ideal candidate for this in Asoka Wadigamangawa who crossed over to the government at the NCP provincial elections earlier this year. But Wadigamangawa was the UNP leader of the opposition of the Wayamba PC until recently, and he cannot be designated as the chief ministerial candidate without howls of protest from other SLFP candidates. What will most probably happen is that minister Yapa will contest as the chief ministerial candidate and then after the election, he will resign for Wadigamangawa to be appointed chief minister. Wadigamangawa’s claim to the chief ministership will be based entirely on the number of preference votes he will be able to garner in the Kurunegala district.

 Mangala’s show

 The SLFP dissident Mangala Samaraweera held a successful rally in Matara last week at the Uyanwatte stadium which was attended by UNP leader Ranil Wickremesinghe. This was one of the more successful public meetings held by the UNP in recent times and the crowd was estimated to be over 2,000. Samaraweera’s supporters had been bussed in from all over the district along with many UNPers. This rally, underscored the UNP’s problem. Samaraweera will be an asset to the UNP in the Matara district as he is the only person the UNP has in the district who has held high ministerial office and has as a consequence, a base of people who benefited from his patronage and are grateful for it. Moreover, having fought (both metaphorically and literally) several district wide elections, Samaraweera has a base in the whole district with co-ordinators in many electorates. For the UNP to be able to win elections, they have to have many such people in all electorates. It is the lack of people with such a background that is causing problems for the UNP at the organisational level.

The still unresolved conflict between the executive and the judiciary shows what can happen even in the best of circumstances. We have a president and a chief justice who are both identified with the Sinhala Buddhist cause. The president is leading a war against Tamil separatism and the chief justice de-merged the east from the north while the president liberated the de-merged east from the LTTE. The president appointed the Eastern Tamil leader Karuna Amman to parliament and the chief justice ensured that he remained there. The chief justice preaches Buddhism on TV but is not seen by the minorities as being against them and he has Tamil lawyers as some of his strongest supporters as they feel they will always get a sympathetic hearing from him on fundamental rights cases. Similarly, even though the president is waging a war against the LTTE, he is not seen as being anti-Tamil by non-LTTE Tamils. Even with two who have much in common at the helm, a conflict has arisen between the judiciary and the executive of such nature that it even threatened to bring the whole country to a standstill.

This conflict has nothing to do with any peculiarity of the present constitution because the separation of powers doctrine applied in the case of the 1978 constitution was more or less the same as that applied in the 1972 constitution. If this is what can happen even under normal constitutional provisions, one dreads to think what will happen to this country if the 17th amendment is given effect. In the view of the present columnist, the 17th amendment is like a disaster waiting to happen. Nobody will question the good intentions behind the 17th amendment. But the mechanisms put in place to achieve these good intentions could turn out to be extremely impractical and could be even more disruptive of normal life than even the present conflict between the judiciary and the executive over petrol prices.

The 17th amendment provides for a ‘Constitutional Council’ which will be entrusted with the task of effectively making all the top appointments in the country. This was with the good intention of doing away with the practice of the president or the ruling party stuffing the top positions with their lackeys and supporters and running the country as they wished. Because of the noble intentions behind this piece of legislation, it has become the holy cow of Sri Lankan politics. To some, it is above criticism. Even if one criticises the constitution, the prevailing attitude is that nobody should criticise the 17th amendment. But the present columnist has serious doubts as to how workable the 17th amendment will be.

 Amendment from hell

 The constitutional council is made up of ten persons, the Prime Minister, the Speaker, the Leader of the Opposition in Parliament, one person appointed by the President, five persons appointed by the President on the nomination of both the Prime Minister and the Leader of the Opposition and finally one person nominated upon agreement by the majority of the Members of Parliament belonging to political parties or independent groups other than the respective political parties or independent groups to which the Prime Minister and the Leader of the Opposition belongs and appointed by the President.

It should be noted that the president who according to the constitution, is supposed to be the head of the executive, is not a member of the constitutional council and will be represented on it by just one member appointed at his own discretion. Needless to say that when the head of a political party, who is also the head of state and the head of the government is kept out of the decision making process with regard to key appointments, he will be a baneful and resentful presence in the background. The question that arises is that the president as the elected executive will be responsible for the implementation of policy while those who have to carry it out will be independent of his control. How then can the executive implement what it promises the people?

Then, five members of the CC have to be appointed by the president on the recommendations of both the prime minister and the leader of the opposition – which means that both the prime minister and the leader of the opposition have to agree on five individuals to appoint to the constitutional council. In the context of the extremely adversarial politics of this country, it is a moot point whether the prime minister and the leader of the opposition will be able to agree on five eminent persons who are not members of any political party, to appoint to the constitutional council once every three years. Human nature being what it is, each party is going to try to stuff the CC with those partial to itself and if the other party objects, then these appointments are going to be an ongoing source of conflict and contention within the body politic.

The question one has to ask here is that if the framers of the 17th amendment had so much faith in the better side of human nature that they could assume that the prime minister and the leader of the opposition could lay aside their political agendas for a moment to appoint five members of the constitutional council, then why could they not have assumed as the framers of the 1972 and original 1978 constitution did, that the executive will be of such integrity, that it would only appoint people of suitable eminence and qualification to the top positions in the country? It is impossible to legislate without reposing one’s trust somewhere. The earlier framers of the constitution reposed their trust in the executive elected by the people. The framers of the 17th amendment do not obviously trust the executive, so they have sought to keep the president out of the picture with trust being reposed on the prime minister and the leader of the opposition.

Even that would have been alright if that trust had been reposed on one side. But because the framers of the 17th amendment are suspicious of the intentions of both sides in parliament, they have brought in that clause that the prime minister and the leader of the opposition have to agree on five appointments and this is where the problems will arise. We have in this country a chief justice who has been a long standing friend of the president and the former had even signed as a witness at the latter’s wedding. We now see the kind of conflict that is possible even in such circumstances. So how can we expect two individuals whose official, acknowledged role in the country is to oppose one another, to see eye to eye, year after year, on the appointment of five members of the constitutional council? The 17th amendment has not provided for an escape route if a stalemate occurs.

 A moment of indiscretion

 As if expecting habitual opponents to cooperate was not bad enough, the 17th amendment has added more burdens upon them by introducing the clause that in nominating the five persons referred to, the Prime Minister and the Leader of the Opposition shall consult the leaders of the political parties and independent groups represented in Parliament. Three of such persons shall, in consultation with the Members of Parliament who belong to the respective minority communities, be nominated to represent minority interests! So it is not as simple as the PM and the leader of the opposition having to agree with one another for a change, instead of disagreeing as their roles require, they also have to talk to the various political parties in parliament, to get them to agree on the appointment of the five members, three of whom have to be from the minorities. In other words, they are not only expected to agree among themselves, but expected to get the JVP and the TNA to agree on suitable candidates as well! If the day to day running of this country is going to hinge on such a convoluted process, which flies in the face of human nature itself, then every citizen of this country should be very concerned. The entire functioning of the public service, the police, the elections office could come to a standstill if the appointment of the constitutional council hits a snag as the constitutional council has to recommend the appointment of the chief justice, the attorney general, the auditor general, the inspector general of police among others.

The 17th amendment is inconsistent with the presidential system of government and indeed even with the parliamentary form of government. It is designed to remove the power of appointing top officials of the state from the president and to bring it back to parliament. But even in a parliamentary system of government, the PM and the leader of the opposition are not expected to agree on such appointments. This constitutional amendment was a knee-jerk reaction to the abuse of power under the first seven years of the Chandrika Kumaratunga presidency. At that time, it may have seemed a good idea to all concerned, to curb the powers of the executive, regardless of the disruptive effect it will have on the day to day functioning of the country, because the biggest source of political instability in the country at that time was president Kumaratunga herself. The impracticability of the 17th amendment was lost sight of in the general confusion prevailing at the time with everyone rushing headlong to escape Chandrika Kumaratunga.

But in calmer retrospection, this constitutional amendment does not seem a good idea at all. The 17th amendment was passed by parliament only because of the pressure brought by the JVP on Chandrika Kumaratunga to adopt it in exchange for giving the PA a parliamentary majority for the ‘pariwasa aanduwa’ in late 2001. The JVP is not too careful when they impose conditions like this. At one point, they were trying to get Mangala Samrawera appointed prime minister in exchange for JVP support for the Rajapakse government – a demand they would have regretted later. Likewise, imposing the 17th amendment on this country was a major mistake made by the JVP.

Legislation that is brought in with a gun held to the head should always be reconsidered once the gun is removed. It became law in late 2001 and the person who ruled the country for the next two and a half years was Ranil Wickremesinghe, who showed no interest in implementing the 17th amendment. This was followed by one and half years of rule by Chandrika Kumaratunga, who also showed no interest in implementing it. President Rajapakse has been in power for three years and he reportedly loses his temper at the mere suggestion that the 17th amendment should be implemented. In the view of the present columnist, all three leaders should be congratulated for not having implemented this unworkable piece of legislation.

There is one problem though. In the absence of the constitutional council the president can continue to make appointments like the Inspector General of Police. But the appointment of the next elections commissioner has to be done by the elections commission, which has to be appointed by the constitutional council. So long as the present elections commissioner stays on in office, things will be alright, but if he retires or dies, the whole country is going to be in a mighty mess, because to replace him, the 17th amendment will have to be implemented. It’s harrowing to think that the only thing that stands between us and anarchy is one man, already past retirement age.