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L E G A L W A T C H
Qualified approval from independent jurists

By Nayana
Earlier this year the Geneva-based "Centre for the Independence of Judges and Lawyers" which is a component of the International Commission of Jurists (ICJ) published the report of a three-member mission which visited Sri Lanka in the latter part of 1997.

The team comprised Lord William Goodhart, Q.C. of the United Kingdom, former Indian Chief Justice P.N. Bhagwati and South African jurist Phineas M. Mojapelo. Titled "Judicial Independence in Sri Lanka" their report actually covers a wider range of subjects that its title would suggest, and reviews such matters as the use of emergency regulations and preventive detention under the PTA, the provision of legal aid, and the laws delays.

While one must not over-value the impressions of foreign experts gained from a relatively short stay in this country, the report is balanced and factual and its authors have interviewed a wide selection of Government officials, representatives of the Bench and Bar, and private activists, as they acknowledge in a list of names at the end of the report.

The first point of interest, in the light of recent controversy, is the report's introductory note on this Island's history, the first two paragraphs of which read as follows:

"The first known inhabitants of the island of Sri Lanka (formerly known as Ceylon) were the Veddas, of whom only a few hundreds still survive as an identifiable ethnic group, living in remote forest villages. The majority ethnic group - the Sinhalese - are believed to have come from northern India during the 6th century B.C. Some three hundred years later Buddhism spread from India to Sri Lanka. Although Buddhism was later almost entirely displaced from India itself by Hinduism and Islam, the Sinhalese have remained strongly Buddhist. Under Article 9 of the present Constitution of Sri Lanka, Buddhism is given 'the foremost place'.

"From about 200 B.C. a sophisticated Sinhalese civilization developed, with its capital in the great city of Anuradhapura. However, there was constant movement across the narrow strait separating Sri Lanka from South India and over the centuries Hindu Tamils came to occupy the north of the island and a strip of land along the eastern coast, while the Sinhalese occupied the south, west, and most of the interior of the island."

Thus when the President made her recent remarks to a South African interviewer which have generated so much controversy, she was merely voicing the generally accepted account of this country's history. While history may not provide a solution to modern problems, at the same time history cannot be denied.

Turning now to the law: The well-researched critique of the manner in which Emergency Regulations and the Prevention of Terrorism (Temporary Provisions) Act tend to be used echoes much of what has been said by the Civil Rights Movement and the Nadesan Centre over the years and probably owes much to those two organizations for the wealth of factual detail.

The authors of the report accept that the current situation in parts of Sri Lanka justifies the proclamation of a state of emergency, being a situation which "threatens the life of the nation" within the meaning of the relevant clause in the International Covenant on Civil and Political Rights to which this country is a party.

However they are critical of the lack of publicity for, and Parliamentary scrutiny of, emergency regulations, as well as the use of such regulations for purposes extraneous to the security situation (a practice which they acknowledge to have gone on under successive governments). Amongst their recommendations is for all such regulations to be laid before Parliament for approval. They also recommend that the authorities maintain an updated text of all such regulations in all three languages in a manner accessible to the public.

The report also accepts that there may be a need for preventive detention but recommends a greater degree of judicial control, e.g. that an initial order of preventive detention should be subject to approval by a Magistrate within one month and that all renewals of the order should be made by a Magistrate, with a limit on the maximum duration of such detention.

In a more far-reaching move the jurists also recommend that the PTA should only be made applicable where a state of emergency is in force. At present this Act (passed in 1979 as a supposedly temporary measure) allows for the exercise of what are virtually emergency or extraordinary powers of arrest and detention without the need for a state of emergency to be declared or approved by Parliament.

In addition the report also advocates doing away with the special provisions that allow for the admission of confessions made to the Police in cases under the PTA and emergency regulations. The normal rule under our criminal law is that such confessions are inadmissible unless made in the presence of a judicial officer. The recommendation is based on evidence that this practice has tended to encourage the use of torture in police stations.

Since such confessions can in any event be set aside at the trial stage when there is evidence that they were obtained under torture, the provision allowing them to be admitted at first instance serves little purpose except to allow the police to claim that they have caught various suspects whose guilt may never be proved in a court of law. Recently in the Colombo High Court an indictment had to be withdrawn because the medical report showed that the female accused who was alleged to have confessed to the crime had sustained twenty-four injuries to her body.

The recommendation of the international jurists which is least likely to find favour with Government is that a Presidential proclamation of a state of emergency should be challengeable in court if it can be argued that there is no reason to believe that a state of emergency exists or is imminent. At present Section 3 of the Public Security Ordinance (PSO) appears to preclude such a challenge.

Ironically, it was just under one year after these jurists had visited this country, that the President made what was probably the most controversial PSO proclamation of her Government's term of office, when the state of emergency was extended islandwide last August to enable the postponement of provincial council elections in the five provinces where they fell due.

With regard to judicial independence - the subject of the report's title - the jurists found "a strong culture of judicial independence" in Sri Lanka and expressed satisfaction at the Supreme Court's effective use of the fundamental rights jurisdiction. On the question of institutional safeguards, the report voices concern that the dismissal of superior court judges lies in the hands of Parliament and not "an appropriate judicial body".

With respect to the learned jurists, this is easier said than done because one would still be faced with the question of who appoints such an "appropriate body". If it is not to be the President or Parliament, it would have to be the Chief Justice; but then what would happen in the event of an allegation against the Chief Justice? In any event, a situation where judges or ex-judges look into the conduct of their own brethren might not inspire public confidence either.

Impeachment by the elected legislature is the accepted sanction for judicial misconduct in many democratic countries. The unsatisfactory feature of the Sri Lankan system is that it only requires a simple majority in Parliament, unlike, for instance, in the United States of America where impeachment requires a two-thirds majority in the Senate. This would make the difference between a politically partisan vote and a cross-party consensus.

Having reviewed the various legal aid schemes that are presently provided by both the Bar Association and non-governmental organizations, the report concludes that measures for providing legal assistance to persons charged with serious offences and to petitioners in fundamental rights cases are "reasonably satisfactory, taking into account Sri Lanka's relatively poor economy".

It would be interesting to know what our Justice Minister cum Deputy Finance Minister would say about that assessment!

However the report is very critical of the law's delays, especially in the Court of Appeal. From information they claim to have received from a number of sources, the jurists have concluded that one of the principal reasons for these delays is the fact that "most appellate work is in the hands of a small number of leading lawyers who often have clashes of hearing dates and are all too happy to help each other out by agreeing to their opponents' requests for an adjournment when this happens."

The other main reason for delay according to the report, is a shortage in the cadre of Appeal Court judges, partly caused by the appointment of some judges to sit on special commissions, which, of course, is an aspect of the problem that has already been highlighted to little effect.

The jurists have expressed particular shock at the prolongation of habeas corpus applications which in their view should be treated as matters of the utmost urgency, involving as they do, the fundamental right to freedom from unlawful arrest and detention. Here particular criticism is reserved for the Attorney-General's Department, for the unduly long time taken to file their objections (more than a year in one case) which is but the first step in the process leading to a hearing. Delays are also said to be caused when the parties needed by the State to swear affidavits or give evidence are serving in, or have been transferred to, the conflict areas.

The week that was
Cold War in SLFP hots up

by Shan Wijetunga
The fifth budget of the PA government was passed in Parliament with a majority of 36 votes relieving the gov-ernment of a lot of anxiety. The budget debate came into special limelight with the announcement of the TULF that it would vote against it. How-ever, it was passed by the parliament with a bigger majority than last time. Yet, it was not without its share of suspense.

A few days before the debate, Nihal Galappaththi got a letter from the Sri Lanka Progressive Front requesting him to vote with the government. Galap-paththi contested the election from the 'Front for saving the nation', a joint organisation comprising JVP and the Progressive Front. He had to use the symbol of the Progressive Front. Therefore, it had the authority to send a directive to him.

This was a problem for Galappaththi and he had intended to seek legal advice on the matter. But the situation took a different turn when Galappaththi suddenly fell sick while speaking in parliament on Tuesday afternoon.

It happened as he was engaged in a hot exchange of words with Vijithamuni de Zoysa. He suddenly collasped into his seat clutching his chest. Sessions were suspended and MPs from all sides surrounded him to render first aid. Finally he was rushed to the Intensive Care Unit of Sri Jayewardenepura hospital where the problem was attributed to an injury he had suffered in a car accident. The end result was that he was unable to be present in the parliament at voting time and the attempt of the Pro-gressive Front to push him came to nought.

Vasudeva Nana-yakkara had informed the Speaker in writing that he would not vote on the budget. In addition to him, Ravi Karunanayake was also absent at voting time. On the UNP side, Vincent Perera was in hospital and this fact had been reported to the party leadership. Wijeyapala Mendis kept away without any notice.

Cooray in the news
Political circles are buzzing with rumours about a meeting between Sirisena Cooray and a leading UNPer. The meeting had been arranged, it is reported, by a city councillor. The two parties met at the MMC's residence and discussions had gone on for about an hour. No details were available as the meeting was one to one and the participants were tight lipped.

It is not known whether this meeting was arranged with the nod of the party chief. The participants had arrived separately and departed separately within about an hour.

Last Sunday, Sirisena Cooray paid a sudden visit to the Dalada Maligawa and met the Nayaka Theras of Malwatte and Asgiriya. He had come there to discuss the repair work at the Maligawa and also to discuss the current political scene. In the course of the discussions, he had advocated a non-party president responsible to parliament at all times. He should be selected by all parties both of the government and the opposition.

While these discussions were going on, Lakshman Kiriella arrived there to inquire about the Nayaka Thero's health. Cooray asked him to sit down and said that there are no secrets between them. Yet, they talked to each other only for a short while as Cooray had to return to Colombo.

A large number of UNP stalwarts including the party chief had been invited for a commemoration function for Davindra Mendis, son of Wijayapala Mendis. Ranil Wickremesinghe was not there and Karu Jayasuriya represented the party. Dr. Jayalath Jayawardane had visited the place in the morning and left before the function started.

From Kandy, Cooray made a beeline to Katana. There was Sarath Kongahage and Srima Dissanayake also present at the function attended by a large number of Mendis supporters. Since there were no leading UNPers present, Cooray did the honour, distributing dry rations to the needy.

Ven. Elle Gunawansa criticised the UNP leadership and the party in the course of his address. Kongahage had left the place quietly. Towards the end, the function took on a political colour.

Although a large number of UNPers had planned to be present at the pirith ceremony scheduled for the following day, they decided to keep off on account of the political flavour of the speeches at the function. Among those present on Monday night were Susil Moonasinghe, Dharmadasa Banda, M. H. Mohamed, Sarathchandra Raja-karuna and Joseph Michael Perera.

Fowzie plays CMC politics?
Proceedings of a meeting held at the Temple Trees on Monday clearly indicated that the cold war between a group of SLFP municipal councillors and Fowzie's group has now reached problem proportions. The meeting between the two factions was arranged by the former Chief Minister of Western Province, Susil Prem Jayanth. A notable feature was that a very large number was dressed in white. When asked for the reason came the reply "That shows their strength".

One speaker pointed out that there are two groups, one of them supporting Karu Jayasuriya secretly. This comment led to a long exchange of words. When Vedage remarked that the entire problem had arisen because of Fowzie, who according to him has now forgotten the support they gave him, proceedings began to warm up. All members of Vedage's group spoke against Fowzie. Some made accusa-tions against Ganeshalingam too. The president who chaired meeting said that all this must stop. There is only one group and the leader of that group is Gane-shalingam. All must accept his leadership and work accordingly, she said.

Ganeshalingam criticised certain activities of Karu Jayasuriya and said that a certain project planned by the Mayor should not be allowed. The president concurred. Several others expressed opposition to some of the activities of Jayasuriya such as a programme to be launched with the cooperation of private estates and the idea of handing over refuse collection to the private sector.

Next, Imitiaz com-plained about an attack made on him by a representative of the underworld and displayed the injured leg in support. It was also said that a particular police officer mentioned by name refused to record his complaint. The President requested him to detail the matter to her secretary.

Again the name of Fowzie came up and finally the President ordered the members to stop complaining about him and to do their work properly. Next, there was an alteration between Ganeshalingam and Vedage, supported by several others. A bone of contention was the venue of meetings. It was finally agreed, with the consent of the President to have the meetings at SLFP Headquarters.

The discussion could not be prolonged as the President was due to meet provincial council members who had been summoned for a meeting at 5 p.m.

Problems of Provincial Councils
Except for a few members, all those who had been invited were present at this meeting which had to be started late due to the delay of the previous meeting of municipal councillors. The provincial councillors meeting proceded on an agenda prepared by the chief minister and most of them centered round friction between local MPs and provincial councillors. Members complained that the MPs ignored them and that was at the bottom of all problems. The President listened to the long discussion and promised to prepare a code of conduct for both parties.

Next came the question of projects launched before the dissolution of the councils and are now more or less suspended. The President instructed that the projects go on and agreed to provide the needed funds.

Some complained about the straits they have been reduced due to the postponement of elections. The Pre-sident accepted the fact that the situation would not have arisen if the elections were held on time. She also stated that although she was against the idea of postponing provincial council elections, she had to heed the advice given to her. However, she refused to divulge the name of the advisor.

"However, I will take this matter into my hands and hold the elections very soon. All must be ready for that," she concluded.

Cabinet meets
Last week's cabinet meeting was held under the chairmanship of Ratnasiri Wickra-manayake and it happened to be his birth day. Hence the meeting began with good wishes for the minister.

In the course of the discussion, the ministers were sur-prised about an unexpected exchange of words between Thondaman and Wickramanayake. The issue was an estate in Ingiriya. The minister had taken steps to distribute the estate land among villagers. Thondaman opposed this saying that there was an agreement during Premadasa's time to give it to estate workers.

"I don't care about what happened during Premadasa's time," replied the minister, but Thondaman main-tained that it is wrong to break an agreement already made. For about 15 minutes the battle of words continued. Peace prevailed after it was decided to take up the matter at the next meeting.

The President arrived while most of the members were getting ready to disperse. However, there was time to discuss what the UNP might do on the following day at the budget debate. Accordingly, parti-cipants at the debate were nominated and instructed by her.

Mulberry Group
A meeting of the Mulberry Group comprising around 20 members held a meeting at the residence of Felix Perera at Ja-Ela on Wednesday evening. One of the main items on the agenda was the inaction of committees appointed to redress grievances of political victims. They decided to present this matter to the President at the next meeting with her.

Reactivation of committees appointed to grant relief for political victims, detection and reporting on corruption in state agencies, increase of import duty on luxury vehicles and reduction of duty on vehicles such as vans used by ordinary people, and the increase of the funds granted to an MP from the decentralised budget by Rs. 10 million were among the issues to be taken up.

Invitations were not exclusive to the Mulberry Group members. There were local councillors as well. The discussions were followed by a get-together. There was a music group and the drinks to liven up the action. Some of the invitees decided to turn vocalists. Among them were Bennet Cooray, Jayatissa Ranaweera, Tissa Karaliyadde, Felix Perera etc. who displayed their vocal prowess. Jeyaraj Fernandopulle on his way home after the cabinet meeting dropped in. The musical session was followed by dinner and the party continued into the small hours of the morning.

UNP and the budget debate
There was an emergency meeting of the UNP parliamentary group on Wednesday, presided over by the Leader of Opposition to plan the strategy for the debate. Wickre-masinghe explained that since the debate at the committee stage is organised by the opposition, every member must be present in parliament.

"We must maintain the quorum at all times. We were able to take advantage at every stage during the second reading. The gov-ernment was unable to answer a lot of questions. They were not even interested in maintaining the quorum" he said. He insisted that the party must exploit this situation.

Next a briefing was given on the conference due to be held in Kataragama on Nov. 19.

Premaratne Gunasekara got up to complain about the proceedings at the pinkama held at Wijayapala Mendis' house. He said that something should be done about the criticism of the party at this function. The party leader's reply was that no further action can be taken as Mendis' membership had been suspended. He had advised several members who raised this matter not to make it an issue.

"Whatever it is Davindra Mendis was a former member of our party and a provincial councillor and he was arrested. There is nothing wrong in participating at a pinkama held in his name", he further said. He would have gone there if not for a prior engagement, but he visited the place in the morning he added "It started as a religious function. No one said that there would be politics. If these things get repeated, there is no need to participate. We do not want to take any further steps either and we have no power to do so", Ranil concluded.

US Mid-term elections
Democrats break with tradition

by Dr. Stanley Kalpage
Since 1934 no party of an incumbent US president has gained seats in the House of Representatives during a mid-term election. Contrary to expectations, at the mid-term elections on Tuesday 3 November, the Democrats gained five seats in the House. In the Senate, they broke even; the final tally remained as before, 45 seats for the Democrats and 55 for the Republicans.

Republicans were expecting to pick up five to fifteen house seats and at least four or five Senate seats, sufficient to make up the 60 Senate seats required to stop a Democratic filibuster.

Although Republican losses were not significant they underscored the problems of a party riven by factional and regional differences, divided over its agenda and facing a Democratic Party that was using the strategies so successfully employed by Clinton in the presidential campaigns of 1992 and 1996.

State governorships
Democrats also captured the single biggest prize of the mid-term elections by winning the governorship of California for the first time since 1982. Democratic Lt. Gov. Cray Davis easily defeated Republican state Attorney General Dan Lungren, by 20 percentage points, in a race that became a model for the party. Davis ran a centrist campaign that pushed his opponent to the right and coasted to victory in the nation's biggest state.

In fact, Republicans lost governorships in California, Alabama and South Carolina, Despite these losses, the incumbent republican governors of Texas, New York, Pennsylvania, Michigan and Oklahoma won big re-election victories. George W. Bush, elder son of former president George Bush, strengthened his expected presidential bid with a handsome win in Texas, cornering 69 percent of the vote. His brother Jebb Bush captured the governor's mansion in Florida.

Republican majority in House reduced
After Speaker Newt Gingrich had predicted a gain of 20 House seats for the Republican Party, the ultimate result was a stunning blow for the Republicans.

Immediately after the election, Newt Gingrich had a ready explanation as to why the Republicans did not perform as well as expected. He blamed the media for flogging the Monical Lewinsky scandal. He was not far wrong when he deplored the media's 'Monica madness'. In the nightly talk shows and in the front pages of the major newspapers the dominant theme was of "the president and the intern". Democratic voters were evidently disgusted and turned out in large numbers to support a beleaguered president.

Some Republicans likened the election defeats to "hitting an iceberg" They questioned: "Do we retain the crew of the Titanic or look for some new leadership."

Newt Gingrich
The most astonishing development in the aftermath of the election was the sudden decision of Newt Gingrich to resign. Acknowledged as the "heart and soul of the Republican Revolution", Gingrich had brought the Republicans to power in 1994 for the first time in 40 years.

However, in less than a year after he led the GOP to its stunning 52-seat win, the new speaker found himself presiding over a miscalculation of equally stunning proportions - a government shutdown that infuriated the public and all but guaranteed a second term for President Clinton and a nine-seat gain in the House for Democrats in the 1996 election.

Further misfortunes lay ahead. The end of 1996 brought Gingrich an ethics reprimand and a $300,000 penalty, a controversy that infuriated republicans anxious to hold the high road above what they saw as the ethically compromised Clinton administration. Gingr-ich paid a price for holding on to the speaker's chair, as rank-and-file Republicans clamoured for internal changes that diluted his power and rebels staged an unsuccessful, but damaging, coup attempt.

Gingrich, a student of history who spent part of his youth in France, supported president Clinton on foreign policy. He offered what Thomas E. Mann, the Brookings Institution scholar on Congress affairs, called "instinctive, patriotic support to a president of the opposite party on the big international questions of trade and foreign policy."

Bob Livingston to succeed Gingrich
On 18 November House Republicans elected their leaders for the 106th Congress which convenes in January. Most attention was focused on the post of Speaker of the House of Representatives, said to be the second most powerful political position in the United States.

Republican congressman Bob Livingston (55) of Louisiana, chairman of the influential House Appropriations Committee, who had announced his candidature for the post of Speaker even before Gingrich opted out, was chosen unanimously by a voice vote.

Livingston has said: "I want to be speaker of the whole House. We Republicans lose nothing by reaching out to the other side... we must co-operate to move forward. Republicans must compromise with president Bill Clinton and other Democrats next year rather than try to dictate legislation to them". He continued: "We must acknowledge that voters effectively rejected much of our conservative agenda in the election when they cut our House majority by giving Democrats a net gain of five seats."

Impeachment of Bill Clinton
Many Republicans agree that their party had put too much emphasis on impeaching Bill Clinton and had failed to place an aggressive conservative agenda before the voters. In national exit polls, 65 percent of the voters said Clinton should not be impeached and almost as many said Congress should drop the matter rather than hold hearings which commenced on 18 November.

James M. Hyde, Chairman of the House Judiciary Committee which is considering Clinton's impeachment has declared his interest in wrapping up the impeachment process with a few public hearings. The Judiciary Committee has heard the testimony of independent counsel Kenneth W. Starr and has called a few others to testify.

President Clinton called the election results "astonishing" and said that they were a vindication of his policies of "putting people before politics" House Minority Leader, Richard Gephardt exulted "the days of the Republican majority in the House are numbered. I am convinced that we will regain our majority in 2000."

Clinton showed it was possible to appeal to middle-class swing voters while maintaining the enthusiasm of core Democratic constituencies such as organised labour, African Americans and Latinos. Many Democratic candidates from Gray Davis in California to various southern Democrats, copied that approach in successful election campaigns. They stressed the soundness of the economy and issues like social security, health care, and education.

Democrats' spirits revived
Democrats who once thought they were facing the firing squad in November's mid-term elections woke up instead after election day with a new lease of life, a gift from voters who simultaneously registered their strong disapproval of impeaching president Clinton.

Far from being hurt by the Lewinsky controversy. Democrats were assisted by an anti-impeachment backlash - particularly with an increased turnout among African American voters.

Even independent-minded voters appar-ently held Republicans more responsible than Clinton for the past year's largely dormant domestic policy agenda. One voter commented: "This election is voters saying get back to work - end the scandal strike."

An unusual result
A rather strange result was the victory of Jesse "The Body" Ventura, a professional wrestler, who won a three-way race for governor of Minnesota, delivering a harsh body blow to the professional politicians.

From out of nowhere, Ventura, a 6-foot-4, Porsche-driving populist running under the Reform Party banner, defeated two formidable opponents - republican St. Paul Mayor Norm Coleman and democratic political scion Hubert H. Humphrey III, the state attorney general and son of the late vice president Hubert H. Humphrey. Ventura is a Vietnam war veteran, actor and radio talk show host.

Ventura will be the Reform Party's first governor. He will face a state legislature in which his party has not a single representative. Ventura appears to have little, if any, connection to Reform Party creator Ross Perot, sharing only the spirt of the Texas billionaire's shout against the status quo. Ventura's Democratic and Republican opponents raised $4.3 million for their campaigns; Ventura spent only $250,000.

Presidential election 2000
Speculation is already rife about possible presidential contenders for 2000. Texas Governor George W. Bush coasted to victory with phenomenal numbers among women and minorities, two groups that have not always been strong for Republicans on the national level. That makes his presidential prospects very strong although he has not suffered the scrutiny or rigours of a presidential campaign.

Senator John McCain of Arizona is another presidential hopeful who may seek the Republican nomination. He says that the most daunting obstacle is trying to raise the $18 million to &20 million a serious candidate will need to enter the 2000 Republican presidential primary.

There was plenty of good news for the Al Gore camp too. High on the list were some prominent Democratic victories in governor's races, such as Gray Davis in California and Tom Vilsack in Iowa, very important presidential states where Gore worked hard for those two winners.

As possible rivals to Al Gore, Bill Bradley is said to be testing the waters while Senator Bob Kerry and House Minority Leader Dick Gephardt are likely to join the race for the Democratic nomination.

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