.

Wayamba PC polls irregularities
I will deal with the culprits, says President

Many government MPs perturbed by the severe financial losses suffered by the Nuwara Eliya district potato cultivators left to Bangladesh led by Minister Jeyaraj Fernandopulle to learn from the successful Bangladesh potato cultivators to help local farmers.

The group included Deputy Minister of Agriculture, Salinda Dissanayake, and MPs T. B. Ekanayake, C. B. Ratnayake, Chamal Rajapakse, Felix Perera and Muthu Shivalingam.

The delegates were in for a surprise in Bangladesh when media personnel questioned them regarding the north western provincial council elections.

One media person wanted to know whether there was any truth in the allegation that even a government minister had attempted impersonation at the election.

Minister Jeyaraj worried over the allegations about happenings at the north western provincial polls on the image of Sri Lanka and specially on the government tried to contact the President at ‘Temple Trees’ over the phone on Saturday but the President had left to Switzerland to attend the World Economic Conference held at Davos City.

He then contacted ‘Lankadeepa’ daily on Tuesday and was informed that the President was highly perturbed over the election violence and was reported to have suggested fresh elections be held.

Meanwhile, leader of the Sri Lanka Muslim Congress and the Minister of Ports and Rehabilitations M. H. M. Ashraff criticised the conduct of the North Western Provincial Council elections through a newspaper release and wanted the wrongdoers punished.

The President returned to Sri Lanka on Tuesday evening. Immediately on her return she wanted several Ministers and Deputy Ministers to get first hand information on opinions regarding the North Western Provincial polls and after studying them asked for their views regarding the cancellation of election results and going for a fresh polls.

But the deputy ministers told her that cancelling the poll results and going for fresh elections would be playing into hands of the UNP, that had been their clamour.

The President thereafter contacted professionals and close officials for their views on the problem.

Cabinet meeting
The cabinet meeting as usual was held on Wednesday at ‘Temple Trees’, but the President was not present. Several ministers too were also not present as they had gone abroad. Those present criticised the news release by Ministers Jeyaraj Fernandopulle and Ashraff to the newspapers.

Minister Mangala Samaraweera said such action by the ministers would bring the government to disrepute and would erode the collective responsibility of the cabinet and that action should be taken forthwith to counter future repetitions.

Cabinet also approved a proposal to reduce the period of service from eight years to five years for Assistant Superintendents of Police to be promoted to the grade of Superintendents of Police. Also the period of an Inspector of Police to be promoted to Chief Inspector of Police was reduced by four years.

The President arrived at the tailend of the cabinet meeting and thereafter she took the chair and election violence and corruptions at North Western Provincial elections was discussed.

The president was very angry. She said sternly: "I asked lots of people about the allegations. They all blamed the way our party men behaved. Most of those allegations are true. Nobody had listened to what I have said. What all of them did was to get together and degrade me".

She further said: "Now I am being blamed for all these nefarious activities. I don’t want to do elections this way. It is my name that had been dragged in the mud. I don’t like to get my name spoilt because of misdeeds of some others. I will leave all these and go away".

A while later the President in a calm tone inquired whether the election results could be cancelled.

Though certain ministers nodded their heads it was Minister Batty Weerakoon who expressed his opinion.

He said "as President, Your Excellency can’t cancel election results. But it would be best if certain actions are taken to cancel election results. It would be a good occasion to show that the government is acting democratically".

At this point Minister D. M. Jayaratne followed by Minister Fowzie made attempts to blame the UNP as well for election violence and corruption.

But the President waving them aside said: "I know the culprits. I am not going to leave them aside lightly. Whatever their positions if they are proved guilty stern action would be taken against them".

She further said that a committee would be appointed to inquire into political corruption and action determined according to its findings.

It was Minister Lakshman Jayakody who said most of these corruption was due to the present election system. He urged that the preferential voting system be abolished. Certain other ministers who agreed with Minister Jayakody proposed that not only the preferential voting even proportional system be abolished.

Minister G. L. Peiris said that amendments to the electoral system had been a major point in the constitutional reform proposals and as there had been several alternative proposals no decision had been arrived at as yet. But he agreed that a change in the electoral system is imminent.

As several other ministers spoke in favour of amendments to the electoral system. President Kumaratunga appointed a committee to look into the proposals and make its recommendations. The committee appointed comprised Ratnasiri Wickramanayake, Prof. G. L. Peiris, Lakshman Kadirgamar, Lakshman Jayakody, A. H. M. Fowzie, Amarasiri Dodangoda, Maithripala Sirisena, M. A. M. Ashraff and Batty Weerakoon.

The President then inquired: "If the committee reports prove that there had been corruption then do we cancel the election results?"

Almost all present expressed their agreement by nodding their heads.

The cabinet meeting ended after fixing the dates for convening meetings of the SLFP Central Committee and People’s Alliance Working Committee.

After the meeting, on the instructions of the President, several ministers inclusive of D. M. Jayaratne, Mangala Samaraweera and Mahinda Rajapaksa stayed back to hold discussions for the appointment of the board of ministers to the North Western Provincial Council.

In addition to S. B. Navinne being appointed Chief Minister Jayaratne Herath, Priyankara Jayaratne, M. A. M. Navavi and Neranjan Wickramasinghe were appointed ministers.

Mervyn - Anura
Officers of the Criminal Investigations Department along with officers of the Narahenpita police arrived at the residence of Mervyn Silva to get a statement in connection with a murder committed in Palaviya as he was supposed to have been in Palaviya the day before the murder took place, while occupants in the residence had informed the police that Mervyn Silva had left for America on a private tour. Mervyn was at Los Angeles during the last weekend. When Anura heard that Mervyn was in Los Angeles he immediately paid a visit to Mervyn Silva.

Mervyn was taken by surprise but expressed his pleasure at meeting Anura who informed him that as he was completely cured he would be leaving to Sri Lanka by February 10th.

Anura then inquired about the North Western Provincial Council elections. After Mervyn gave Anura detailed information of the elections he asked Anura as to what his decision would be after the North Western Provincial elections.

Anura who was taken aback asked Mervyn: "Why did you ask such a question?"

Mervyn replied: "There is a rumour in Sri Lanka that you will leave UNP and join the government". Anura said: "No. I will not leave the UNP. Once I go to Sri Lanka I will again get into active politics" he said.

Embassies in Sri Lanka
Corruption and violence at the North Western Provincial Council elections had been reported to foreign embassies in Sri Lanka. The American and British embassies openly expressed regrets over political violence and corruption. But the government was not well disposed towards embassies attempting to interfere in the internal problems of the country. The government therefore expressed its decisions under confidential cover to the relevant embassies. Though these letters had been addressed in confidential cover two prominent newspaper institutions in the country and the UNP had received copies of those letters.

Inside information had revealed that this letter had been sent without the concurrence of the Foreign Minister Kadirgamar as the letter had not been signed either by the Foreign Minister nor the Secretary to the Foreign Ministry.

The letters had been sent on papers with Foreign Ministry headings with a rubber seal stamped on it. But the relevant embassies seemed not much concerned with the letter sent from the Ministry of Foreign Affairs.

Independence Commemoration
The Independence Day celebrations this time was held under tight security arrangements as there was information regarding possible attack by the LTTE.

All roads leading to Independence Square on this day were placed under a tight police security net.

Life, Liberty and the Franchise

The Sinhala Kanthabhivurdi Sangvidanaya in a letter to the President stated thus:

The Sinhala Kanthabhivurdi Sangvidanaya (SKS) at its Annual General Meeting held on 13th December 1998 passed a resolution, unanimously, expressing concern about the ever increasing incidents of violence in the country, and especially against women. The members proposed measures to be implemented on a long-term basis to quell violence. It is today a matter of national concern.

Today our organisation is appalled at the virtual war waged against the voter of the NWP in the days before the Provincial Council elections and on election day (25th January 1999). We abhorr violence of every type and are shocked at the uncivilised manner in which women have been treated prior to and on elections day. The stripping of two women in public while they were performing campaign activities has not only violated all norms and values in our country but has shown the world the barbaric act of violence against women, such violence being led by holders of political office. This is partly shameful when there are several International Conventions designed to safeguard human freedom and dignity, especially the Convention on All Forms of Discrimination Against Women. This shameful act will forever remain a black spot in the history of election violence against women, anywhere in the world.

The large majority of our people yearn for just government, free and fair elections, and conducive conditions for the enjoyment of their Civil and Political Rights. It is even more unfortunate when thuggery is organised and thugs are led by politicians. These events have tarnished the image of our political leaders both at home and abroad.

A group of women observers who visited Wayamba have corroborated many of the horrendous events reported in the media. Our members with political affiliations to both parties have also reported acts of violence, independently, such as intimidation of voters and officials, robbery of poll cards, invasion of polling stations, stuffing of hundreds of ballot papers into ballot boxes and mass scale impersonation. Even school children under 18 years have been made to impersonate and this under the eyes of teachers.

Our approach to these issues are non-partisan and unbiased. Members of our women’s organisation hold different party affiliations. On 7th December 1998 we faxed Your Excellency about the injustice done to one of our capable members who was on the P.A. Provincial Council candidates’ list for Wayamba. Her name had been eliminated without informing her. Our appeal was too late for consideration, we later heard.

In the result, there has been no election in the NWP and therefore we ask that the announced result be annulled. We call upon the Government and the Opposition to

(i) help provide conditions for the free and fair use of the peoples’ right to vote

(ii) ensure that the Police discharge their functions without interference from politicians

(iii) end irrelevant public recrimination practiced by politicians

(iv) make electoral reforms with a view to amending the P.R. system and the elimination of Preferential Voting (popularly called "manape")

(v) introduce provisions to enable enlist a substantial number of women candidates to be elected to Pradeshiya Sabhas, other Local Government Bodies, Provincial Councils, and Parliament.

(vii) restore the Democratic right to voters of Wayamba by holding fresh elections

(viii) eliminate all associations between politicians and gang leaders

Prior to holding the next five Provincial Council elections we earnestly appeal that due consideration be given to the measures proposed above. If not, democracy would be lost forever to our people.

In view of the public importance of the issues, we are releasing copies of this letter to the media.

Indrani Iriyagolle (Hony. President)
Prema Weerasinghe (Hony. Vice President)
Somalatha Samaratunga (Hony. Secretary)

The Millennium Bug

by Dr. Stanley Kalpage
With the approach of the yer 2000 the modern computerised world is facing a problem whose occurrence is certain but whose effects are not so predictable. Also called the Y2K problem and the year 2000 problem, the millennium bug is not a computer virus such as those that are known to affect computer systems and can wreck computer software. It is a technical glitch - the possible uncertainty with which computer systems can deal with a date containing three zeros.

When computers were invented in the 1950s and computer memory in the large mainframes was scarce and much less than in modern personal computers, it was decided that dates should be abbreviated so as to include only the last two digits. This would work until the year 1999, because each succeeding year would merely add a single digit: for example 1959 became 1960. And the system would recognise the difference.

However, the year 2000 would cause the addition of two zeros and there is a doubt as to whether computer systems would treat the change from 1999 to 2000 by the conversion of 99 to 00 as a step up to 2000 or a reversion to 1900. Since microchips which drive modern computers are embedded everywhere, the possibility of a failure to recognise the year 2000 can cause effects whose exact nature and extent are uncertain.

The year 2000 also happens to be a leap year. One of the ways devised by Christopher Clavius, a 16th century Jesuit mathematician, to align human time with astronomical, was to make every fourth full century year a leap year. As luck would have it, 2000 will be the first year to which this rule applies. Some programmers are said to have overlooked this fact and to have programmed for only 365 days in the year 2000 instead of 366. And this adds to the complexity of the Y2K problem.

Late awareness
In the computer’s early days, even those who foresaw the Y2K problem chose to ignore it, for two good reasons. First, abbreviating dates made overwhelming economic sense at a time when computer memory was scarce. This is hard to imagine now that computer memory seems almost limitless.

The Gartner Group, a consultancy in Connecticut, estimates that the cost of one megabyte of magnetic disk storage (enough for a solid novel) in 1965 was $761, compared with 75 cents today and perhaps 34 cents in 2000. The two-digit date thus bought productivity gains in those early years but the cost of that decision has now to be reckoned with.

The second reason for not worrying about abbreviated dates was that nobody expected software to last so long. Other investments like buildings and machines, after all, wear out in time; buildings fall down, machines rust. When they do, they can be scrapped and replaced. But computer software turns out to be a different sort of investment. It hardly ever wears out. No one realised that computer systems would be upgraded and enhanced, not replaced. It has been a big surprise to discover how long software lasts.

Little preparation
Only Tony Blair and Bill Clinton, among prominent politicians, have referred to the Y2K problem in their speeches. The Group of Eight top industrial countries and the European heads of government both added a few lines on the millennium bug into communiques early in 1998. But for most politicians, the issue is barely on their radar.

More recently, officials in the foreign ministries of the world’s richest countries have begun to worry seriously about the way the millennium bug might affect nuclear weaponry and nuclear power stations in the former Soviet Union countries and the developing world, where key nations seem to have done almost nothing to prepare for the Y2K problem.

However, the Y2K problem has begun to manifest itself in many countries around the world and is now causing concern and a burst of activity. Date-related computer problems in such disparate activities as harbour traffic control in Hong Kong and taxi fare collection in Sweden have begun to show up.

Consequently, Y2K compliance monitoring organisations such as Cap Gemini and the Gartner group have reported progress over the past year, in addressing the growing threat of the bug but much more remains to be done. On the other hand, Microsoft chairman Bill Gates says that most worries are overblown. Despite that kind of complacency, certain dates to watch out for in the countdown to Y2K have been set. For example, the deadline for all US aviation systems to be made Y2K compliant is 30 June 1999.

The developing world
According to World Bank reports, most developing countries are unprepared for the looming problem. Too few of them have taken the actions needed to immunise their computer systems. Failure to do so could endanger the health, security, and economic well-being of people in the developing world. It may not be possible to fix all the Y2K problems before 1 January 2000. The scarce resources available should be used to set priorities - power generation and transmission, banking, transport and communications, health and education and fuel distribution.

The World Bank has released information of developing country awareness of the problems posed by the millennium bug. Among South Asian countries, India, Pakistan and Sri Lanka are in the category of countries with medium to low awareness while Bangladesh and Nepal are among countries with no World Bank ranking.

The least developed countries face special difficulties. Sometimes their software was pirated; sometimes they were given equipment as aid, and the providers do not want to pay for repairs. Hardware is generally ancient, leaving them with no option but to scrap and replace. That is hard for countries whose currency has collapsed against the dollar, which is widely used for invoicing new software and hardware. International concern about the world’s readiness for the year 2000 has grown to such a pitch that the United Nations is pressing member countries into action.

Timing predictable, not the effects
The millennium bug is predictable in its timing but is completely unpredictable in it effects. Other calamities like earthquakes, for example, that are being forecast in the new millennium are not so predictable and may cause slight or extensive damage.

On the other hand, it is certain that the millennium bug could possibly occur with the transition from 1999 to 2000 at midnight on 31 December though the extent of the havoc it might cause is only in the realm of speculation. Fortunately, there is hope that unless prevention has been unduly delayed or faces special difficulties, disaster can be prevented.

Economic disaster feared
When a century changed in the recent past, economic recessions were the order of the day. At a time when gloomy economic scenarios are prevalent in East Asia, Brazil and Russia, there is a fear that the computer glitch may add to global economic difficulties.

Over the past three hundred years, the end of a century has been a time of economic unease. The British and Dutch stockmarkets in 1699 and 1799 and the Dow in 1899 all saw sharp falls in prices, according to ING Barings, a Dutch bank. In fact, between 2 and 18 December 1899, the Dow fell by 23%. A millennium, even more than a centennial, would be spooky enough without the fear of computer failure. Perceptions, rather than reality, may turn out to be the most dangerous aspect of the pesky millennium bug.

Some years ago, the problem would have been less serious. Now, computers are all pervasive. They fly aeroplanes, handle air traffic control systems, monitor bank deposits and investments. They make the Internet and modern telephone service possible and even assist merchants to restock their shelves with fresh goods. Embedded computer chips are ubiquitous and are found in many industrial processes and consumer appliances. Computers watch over the operations of almost everything from air-conditioning to electric and nuclear power plants.

The potential legal liabilities may be far-reaching. Computer systems are so pervasive in modern life and due to the unpredictable malfunctions that may occur due to the date problem, litigation is likely to be widespread. Insurance companies, on the other hand, are wrestling with the need to cover an unprecedented but eminently foreseeable risk. The more mind-boggling estimates of the future costs of litigation and damages go up to US $1 trillion.

Handling the problem
The millennium bug problem is being handled in three stages: locating the bug, repairing or replacing it and testing the new system to ensure that the problem has been solved and that the systems are Y2K compliant. The main difficulty is that no one knows how many embedded systems there are and where they are (except that they are "everywhere"), and they are not always easy to detect. No one knows which embedded systems have devices in them which depend on date-related information; There are so many different ways in which the problem might show up, and new aspects continue to be found.

The Securities and Exchange Commission (SEC) has advised all listed companies in Sri Lanka to declare in their quarterly statements to what extent they are millennium bug compliant and to disclose what contingency plans they have, if any, or will be developing before the end of 1999. The potential liability to third parties if its systems are not Y2K compliant are also to be revealed.

L E G A L W A T C H
S.C. judgment slams Elections Commissioner

by Nayana
The case brought by journalists Varuna Karunatilake and Sunanda Deshapriya against the Commissioner of Elections marks the transformation of fundamental rights jurisdiction from a vehicle for winning individual rights to a means for securing decisions of major public importance.

The Supreme Court judgment upholding their challenge to the postponement of the five Provincial Council elections for which nominations had been called and received last August has provided a wide-ranging analysis of the Constitution inclusive of the right to vote, the powers and duties of the Elections Commissioner, the scope of emergency regulations and the extent of presidential immunity.

The 21 page judgment also reveals certain facts hitherto publicly known which throw new light on the matter.

For instance, on June 25 last year the Elections Commissioner called a meeting of political party representatives and the Inspector-General of Police at which he made known his intention to conduct the elections in all five provinces on the same day. According to the minutes of that meeting, the IGP had undertaken to provide security and had not mentioned any difficulty in having all the elections on the same day.

As pointed out by critics at the time, and also noted by Court, the Government went on to host the SAARC Summit in July. The absence of any evidence of an increased security threat was one of the principal reasons for holding the August emergency regulation to be invalid.

The position of the Elections Commissioner was that when confronted by the emergency regulation suspending the date of polling in all five provinces, he believed he had no option but to comply.

However it emerges from the judgment that the Returning Officers for all the relevant districts (2nd to 13th respondents) by telegrams dated 3 August 1998 suspended the issue of postal ballot papers which had been scheduled to be issued the next day.

On August 4 the President issued a proclamation under the Public Security Ordinance (PSO) declaring an islandwide State of Emergency and thereafter by a further Gazette notice of the same date issued a purported Emergency Regulation suspending the date of polling.

This sequence of events suggests that, far from being confronted by a Presidential fait accompli on August 4, the Elections Commissioner and his staff had assisted in the Presidential design at least a day before the Gazette notices under the PSO were issued.

The Supreme Court judgment contains a strong indictment on the Commissioner for failing to live up to the independent role assigned to him by the Constitution. Justice Fernando, delivering the judgment in which the Chief Justice and Justice Gunasekera concurred, had this to say about the suspension of the postal ballot:

"It is most unsatisfactory that neither the 1st respondent (Commissioner) nor the 2nd to 13th respondents have explained to the public and to this Court why the issue of postal ballot papers was suspended. Article 103 of the Constitution guarantees to the Commissioner of Elections a high degree of independence in order to ensure that he may duly exercise - efficiently, impartially and without interference - the important functions entrusted to him by Article 104 in regard to the conduct of elections including Provincial Council elections. But the constitutional guarantee of independence does not authorize arbitrariness. That guarantee is essential for the rule of law, and one corollary of independence is accountability. Accordingly, the Commissioner could not withhold the reasons for his conduct - just as the constitutional guarantee of independence of the Judiciary does not dispense with the need to give reasons for judgments."

The apparent absence of any endeavour on the part of the Commissioner to fix a fresh date for the five postponed elections even after August 28 when the Gazette notice ceased to have any meaning, came in for particular criticism from the Court.

Section 22(6) of the Provincial Councils Elections Act of 1988 states that where due to any emergency or unforeseen circumstances the poll in any administrative district cannot be taken on the due date, the Commissioner may by Gazette notice appoint another date for the poll.

This provision was adverted to by another Bench in the Supreme Court’s determination on the Government’s proposed Provincial Councils Elections (Special Provisions) Bill last November, the presentation of which indicated the Government’s apparent willingness to hold elections by that date, albeit with some amendments to the provincial elections law which were struck down as unconstitutional.

However the Commissioner did not take the hint and instead went on to fix a date for the election to the North-Western Provincial Council whose term of office had expired several months after the other five Councils. This was held to be discriminatory against the voters of those other five provinces and a denial of their fundamental right to vote which the Court held to be part of the right to freedom of speech and expression.

While appreciating the difficult position of the Commissioner, the Court pointed out that his constitutional guarantee of independence was for the purpose of enabling him fearlessly to ensure compliance with the law, if necessary by applying to the Court for judicial orders.

Public Security
The petitioners argued that both the Presidential proclamation declaring an islandwide State of Emergency as well as the Emergency Regulation suspending the date of poll were ultra vires the PSO as they were for a purpose other than public security.

The Court declined to make a finding on the proclamation on the basis that it raised various legal issues that had not been fully argued, and also because the Court in any event held the Emergency Regulation suspending the date of poll to be ultra vires the powers given to the President under Section 5 of the PSO to make regulations in the interests of public security or the maintenance of public order.

The Court found that the petitioners had established a prima facie case that the impugned regulation was not based on any threat to security and the respondents had failed to adduce any evidence to the contrary.

The Solicitor-General appearing for the respondents also raised the argument that the regulation could not be impugned due to Presidential immunity. This ill-considered move opened the door to a comprehensive judicial pronouncement on the scope of Article 35 which is likely to reduce much of the aura of impunity that has tended to surround the executive presidency.

Examining Article 35 in detail, the Court stated that this immunity was neither absolute nor perpetual, being only a prohibition on instituting or continuing proceedings against the President as long as he/she remained in office. Article 35(2) provided that the limitation period for the filing of suits would not run during the President’s term of office, thereby expressly keeping alive a party’s right of action until such time as the President ceased to hold office.

The Court was also emphatic that this immunity "is a shield for the doer, not the act". It does not preclude the Court from reviewing the legality of the act itself, nor does it protect any other person (such as the Commissioner of Elections in the present case) who seeks to rely on such an act done by the President in order to justify his own conduct.

Landmark judgement in Sirisena Cooray case

A 3-judge bench of the Supreme Court on Friday held in favour of Mr. B. Sirisena Cooray against Messrs. G. R. Tissa Bandaranayke and G. W. Edirisooriya and the Attorney-General in his application of a Writ of Certiorari to quash the findings, determinations and recommendations made against him by the Commission which investigated the Lalith Athulathmudali assassination.

Cooray contended that the commission’s finding on contempt against him and its decision that he stood deprived of his civic rights was made in excess of the commission’s jurisdiction; that its finding of complicity against him in the assassination, political victimisation, corruption and subverting justice was made in the absence of any credible evidence or allowing him the right of legal representation. He said that this was contrary to the principles of natural justice and contrary to the mandatory provisions of the Special Presidential Commission of Inquiry Law.

The judges held in Cooray’s favour on all matters urged in his petition to the Appeal Court which was transferred to the Supreme Court as Commissioner Bandaranayake was a judge of the Supreme Court when he was appointed to the Commission.

Following are some excerpts of the judgment by Dheeraratne, J, with Gunawardana J and Weerasekera J agreeing.

The findings of the commission in respect of the petitioner were summed up in the report at page 215 as follows:-

"These crimes have been planned not by a volcanic type of personality who just explodes and subsides. The planner has waited his time patiently after careful preparations, and gets others, perhaps under obligation, to commit crimes to sustain their corrupt regime. We observe Mr. Sirisena Cooray’s conduct in avoiding the commission with a ‘letter’ and an ‘affidavit’ the contents of which are revealing. His excuses contained in the ‘affidavit’ are not acceptable. His presence was required. These documents are valueless.

In the background of all the evidence taken together we draw the irresistable inference, supported by Mr. Cooray’s own conduct in avoiding the commission by going abroad that he was one of those responsible for these assassinations and was directly concerned in and a member of the conspiracy to assassinate Mr. Athulathmudali in consequence of which conspiracy Athulathmudali was assassinated. All of the facts and circumstances taken together are not consistent with any reasonable theory of his innocence.

The commission would ordinarily have recommended that this act of murder amounts to political victimisation, the procurement of police officers such as the police to assist amounts to corruption, and making up a false scenario in respect of Ragunathan’s death, a fraudulent act to subvert the course of justice and: He (sic) should be subject to civic disability. But this result has already taken place by operation of Law (i.e.) by reason of his conviction for contempt of the commission. We recommend that he be made subject to civic disability if our view of the consequences of the finding of contempt of the commission are unacceptable. There are also Penal Code offences that may be considered by the Attorney General. Those offences are conspiracy with others to commit murder, and abetment of the offence of murder".

It was contended on behalf of the petitioner, firstly, that the commission’s findings on contempt and the decision that the petitioner stands deprived of the his civic rights by operation of Article 89 (i) (ii) of the Constitution, have been made, in excess of jurisdiction of the commission. Secondly, it was contended, that the commission’s findings of complicity with the assassination of Mr. Lalith Athulathmudali, political victimisation, corruption, and subverting the course of justice, in respect of the petitioner, and the recommendation for the imposition of civic disability on him, were made, in the absence of any credible evidence, and without permitting him the right of legal representation, contrary to the principles of natural justice and contrary to the mandatory provisions of section 16 of the SPCI Law.

Findings by the Commission on the offence of contempt

The SPCI Law draws a distinction between, on the one hand a witness (sec. 7) and on the other a person (a) who is specified in the warrant (of the President) as a person whose conduct is the subject of inquiry or (b) who is in any way implicated or concerned in the matter under inquiry or (c) who is in the opinion of the commission, is in anyway implicated or concerned in the matter under inquiry (section 16). In the case of the former, the commission has the power to summon him to attend any meeting of the commission to give evidence, or to produce any document or other thing in his possession and to examine him as a witness or require him to produce any document or other thing in his possession (subsection 7 (1) (c). Very person on whom a summons is served shall attend before the commission at the time and place mentioned therein, and give evidence (subsection 11(3)). In the case of the latter person (for convenience I may call person implicated), he shall be so informed by the commission and after he was so informed, be entitled to be represented by one or more attorneys-at-law, at such stage of inquiry as is relevant thereto. There is a third category of persons contemplated in section 16, who are neither summoned or informed, that is persons who consider desirable that they should be represented at the commission; such persons may be represented only with leave of the commission. The SPCI Law thus makes provision for persons who may be affected by determinations and decisions of commissions to be heard and to be represented by lawyers.

So a witness is summoned to give evidence, whereas a person implicated is informed (but not summoned) and permitted legal representation. The law appears to be predicted upon that salutary principle tenetur seipsum accusare - the law compels no man to be his own accuser or to give any testimony against himself. See also Karunatilleke V. Ameen (1943) 44 NLR 213.

If any person fails, in answer to the summons, appear before the commission, such a person is liable to be arrested and upon his arrest be produced before the commission and the commission may order the remand of that person to the custody of the fiscal of the highest Court exercising original jurisdiction within the judicial zone of Colombo or any other convenient zone, or order his release upon such terms as a commission may determine (subsection 11 (4)). Subsection 12(1) provides that a person on whom a summons is served, fails without cause, which in the opinion of the commission is reasonable, to appear before the commission at the time and place mentioned in the summons, such person shall be guilty of the offence of contempt against, or in disrespect of the commission. (The proviso to that subsection relates to other types of contempt). Where the commission determines that the person has committed any offence of contempt, the commission may cause its secretary to transmit to the Supreme Court, a certificate setting out such determination (subsection 12 (2)). Subsection 10(1) provides that every offence of contempt committed against the authority of the commission, shall be punishable by the Supreme Court, as though it were an offence of contempt committed against such Court. In any proceedings for punishment of a offence of contempt "which the Supreme Court may think fit to take cognizance" as provided by section 10, any document purporting to be a certificate (setting out the determination) shall (a) be received in evidence without further proof, unless contrary is proved, and (b) conclusive evidence that the determination set out in the certificate was made and the facts stated in the determination (subsection 12(3)).

I may straight away mention here that the Supreme Court does not act as a rubber stamp; first, it may take cognizance (or may not), second, it will inquire into whether an offence of contempt was committed, before it proceeds to convict and impose a sentence. (See Re U. N. Wijetunga (1976) 70 NLR 515 - contempt in respect of a commission appointed under the Commissions of Inquiry Act).

There is an added consequence of a conviction for contempt, whatever penalty the Supreme Court may impose. That is, the person so convicted, in terms of Article 89 of the Constitution becomes disqualified from being an elector, if a period of seven years has not elapsed since "the date of his being convicted". In terms of Articles 90 and 91, if a person is disqualified to be an elector he is disqualified to be elected as a Member of Parliament.

Let me now come to the facts leading to the petitioner being found guilty of contempt of the commission. On 12th April 1996, a report of evidence given by an unnamed witness before the commission, that the petitioner was connected with alleged criminal activities of a person known as "Soththi Upali" and that some arms etc. were found hidden in the garden of the petitioner’s premises, was published in the Daily News. On 15th April 1996, the petitioner wrote to the secretary of the commission, refuting those allegations. He wrote "I write to inform the commission that the evidence is absolutely false. I am prepared to appear before the commission and testify that the evidence of this witness, so far as I am concerned is a total fabrication". Referring to this letter the commission in its report at page 207 stated:-

"As far as the commission is concerned that item referred to by Cooray may have been mischievously reported. There was in fact no such evidence on record or according to commissioners’ notes. The commission therefore had no reason to communicate with Mr. Cooray on the subject. The proceedings would have been available for scrutiny. Therefore his reference merely to a newspaper report and not to the proceedings is both suspicious and suggestive".

On 1st May 1996, the petitioner left the Island and returned on 18th June 96. On 26th June 96, the petitioner left to the USA. On 12th July 1996, by notice dated 12th July 96 sent to the petitioner’s residence, the commission informed the petitioner, that it was of opinion that the petitioner was a person whose conduct should be subject of inquiry and that he was entitled to legal representation. The petitioner was not required to appear before the commission. The 1st and 2nd respondents have admitted in their affidavits that this notice was issued in terms of section 16 of the SPCI Law. On 2nd August 1996, when the petitioner was still out of the Island, the secretary of the commission by its order wrote letter P3 to the petitioner, addressed to his residence, stating that:-

"I refer to your letter dated 15.4.96 requesting me to afford you an opportunity to appear before the commission to give evidence.

Please attend the office of the commission on Friday 9th August so that your statement may be recorded in the 1st instance".

This letter was written despite the fact that "there was no such evidence on record or according to the commissioners’ notes". But that is not the issue; was P3 a summons? There was no summons requiring the petitioner as a witness to attend before the commission and to give evidence. Learned DSG was unable to assist us with reference to any law which enabled the commission to require a person to attend the office of the commission in order to record a statement preparatory to giving evidence. Even if that was possible, such a communication was no summons.

On 8th August 1996, the petitioner’s son replied to P3 to say that it was received on the 7th August and it would be handed over to the petitioner on his return to the Island. On 19th December 1996, the commissioners got the document P5 (in Sinhala) and P5A (in English) pasted on the front door of the petitioner’s residence, while the petitioner was yet out of the Island. Material parts of P5A reads:-

"Whereas the commission has written to you (by) registered post that you are a person whose conduct should be the subject of inquiry in respect of matters referred to in the warrant issued by Her Excellency the President of Sri Lanka, to wit, a conspiracy to assassinate or aid and abet the assassination of the late Lalith Athulathmudali and other connected matter and informing you that you are entitled to representation by attorneys-at-law.

Whereas the said commission further request you by letter of 2.8.1996 to attend the Commission office on 9.8.1996 to make a statement.

Whereas your son Mr. Ajith Cooray has informed the Commission that the said letter of 2.8.1996 written to you was received at your residence No. 226, Lake Drive, Colombo 8.

And whereas your son Mr. Ajith Cooray has informed the Commission that you are aboard.

And whereas the National Intelligence Bureau has informed the Commission that you left Sri Lanka on 24.6.1996 with your wife Srimathi and your son B. M. Prasanna Cooray for one months vacation to Hong Kong.

And whereas statements made to the Commission by your son Mr. Ajith Cooray show that you have been in Washington in the United States of America and that you are moving from place to place in India where he met you in New Delhi.

And whereas the evidence so far pleas (placed) before the Commission disclosed your complicity in the murder of the late Lalith Athulathmudali.

These are therefore to command you to be present and appear in person on 9.1.1997 at 11 a.m. before the Commission".


Mr. Cooray		 This document can neither be construed as a summons to a witness "to attend any meeting of the Commission to give evidence" (subsections 7(1) (c) and 11 (3)), nor a notice to a person implicated (section 9) where no personal attendance could be required. Was the petitioner told why he was commanded to appear? Certainly he was not; but the commission has provided the answer in its report at page 209:-

"We would have liked to have Mr. Cooray’s views on the sacking of Athulathmudali from the UNP in August 1991 and his views on the so-called impeachment motion under Article 38(1) of the Constitution, which was never in fact presented to the speaker.

The Commission would also have liked to question Sirisena Cooray on the running of the Housing Ministry, the allocation of houses and flats to public officers, the source of the money to run Gam Udawa’s, why he transferred his pistol which was personal to him to Soththi Upali, about his dealings with the Mahaweli Marine Agency, the complaints of the public that by his political patronage Soththi Upali received protection from police officers, the state of his assets and finances abroad and in Sri Lanka since 1976. These are some of the matters he could have assisted the Commission on. The Commission would also have questioned him about the Terms of Reference in the Warrant and his views on the testimony of witnesses who tend to implicate him in the conspiracy to assassinate Athulathmudali. But it was not to be. He did not even answer the summons and kept away from the Commission altogether. Instead he tried to introduce attorneys-at-law into these proceedings to watch his interest whereas he was required to be present in person".

The commissioners quite erroneously overlooked the fact that under the law the petitioner had the right of representation by lawyers; it is not a cheap "introduction" but a cherished right recognized throughout the civilized world. Most of those matters mentioned by the commissioners clearly fell outside the ambit of the warrant. To come back to the narrative of events, on the 3rd January 1997, in response to P5 A, petitioners attorney-at-law, sent to the secretary of commission a letter informing of the inability of the petitioner’s retained counsel to appear before the commission on 9th January and seeking another date. On the 9th Mr. Anil Silva, attorney-at-law appeared before the commission on behalf of the petitioner and moved for a date to enable senior counsel to appear for him. That application was refused on the ground that lawyers had no standing as the petitioner had failed to appear on summons. The commission thereafter proceeded on the same day to issue a warrant of arrest of the petitioner. I may mention here that for the reasons given by me earlier, the summons was flawed; and therefore the warrant too was flawed.

On the 18th of January ‘97, the commission purported to make a determination that the petitioner was guilty of the offence of contempt in terms of section 12 (1) of the SPCI law. On hearing of the refusal to permit lawyers to appear for him and the issue of the warrant against him, the petitioner, who was in Australia at that time submitted through his attorney-at-law, to the commission on 14th February ‘97, an affidavit sworn on 29-1-97 in Australia explaining, among other matters, why he chose to be away from the Island. The contents of that affidavit are immaterial for the decision of this application in view of our finding that the so called summons has no validity in law. The commissioners expressed their suspicions even on the stamp affixed to the petitioner’s affidavit, though they had a statement from the Inland Revenue Department that it was properly issued by that department on 13-2-97. Commissioners observed "The stamp on the affidavit is also controversial. We have a statement from the postal authorities that the stamp has long been invalid. It is ancient" (Page 210).

The commission in its report, thereafter, proceeded to make a series of astounding propositions of law regarding its determination on contempt. It is right to say that the commission is not required by law to transmit a determination made on contempt to the Supreme Court. The commission says "there is a good reason for this discretion remaining with the commission. There is a legal principle that an offender should not be punished twice for the same offence" (Page 210). The commission has no punitive power whatsoever. Its determination will remain a "damp sqib" if the Supreme Court does not take cognizance of the offence. The commission then went on to say "Certain Constitutional provisions now take over. The commission now considers certain provisions in chapter 14 of the Constitution. The chapter deals with The Franchise and Elections" (Page 211). Then the commission having cited portions of Articles 89-91 relating to disqualifications from being an elector and being elected as a MP, on being convicted of an offence of contempt, stated: - "This Disqualification applies to Mr. Cooray as he was convicted by this commission for avoiding the summons without reasonable cause. In the result Mr. Sirisena Cooray is disqualified from being elected to parliament for a period of 7 years from the date of his conviction....This result the commission considers to be in the nature of a punishment". (Page 212).

The commission has no power to "convict" any person of any offence and that is a power vested exclusively with the regular Courts (see Article 13 (3) of the Constitution). If legal representation was permitted on behalf of the petitioner, probably even the most junior lawyer would not have taken much time to convince the commission that it had no power to convict a person of an offence. The commissioners could have entertained doubts in their own minds as to their competence to convict a person and that is why probably they made a qualified recommendation in saying "we recommend that he be made subject to civil disability if our view of the consequences on the finding of contempt of the commission is unacceptable". That view is unlawful and unacceptable in law.

Decision that the petitioner was directly concerned in and was a member of the conspiracy to assassinate Mr. Athulathmudali and other decisions leading to the recommendation that the petitioner be made subject to civic disability.

The Penal Code states that a person abets doing of a thing firstly, if he instigates any person to do that thing; or secondly, if he engages in any conspiracy for the doing of that thing; or thirdly, if he intentionally aids, by any act or illegal omission, the doing of that thing (section 100). The natural meaning of "to aid" is to give help, support or assistance to; and of "to abet" is to incite, instigate or encourage (Smith and Hogan 8th Edition). The offence of conspiracy is committed, in terms of the Penal Code, when two or more persons agree to commit or abet or to act together, with a common purpose for or in committing or abetting an offence, whether with or without any previous concert or deliberation (section 113A).In his written submissions, learned counsel for the 1st respondent submitted that the ingredients to prove "abetment" and "conspiracy" at a commission appointed under the SPCI Law are different from what is required under the Penal Code; they are less in gravity; the reason for this difference, he stated, was that a violation of the penal laws entail in penal consequences; whereas if the recommendation of the commission is accepted by the legislature, it will impose only civic disability on the petitioner; civic disability is not a punishment. We reject this dangerous heresy for two reasons. Firstly, norms of criminal culpability should be certain and they cannot take different shades depending on who applies them. Secondly, learned counsel’s submission is based on the belief, (like the scant respect the commissioners had to the right of representation by lawyers) that the right to vote is an inferior kind of right of no consequence and therefore that a person could be deprived of that right less seriously. Article 21 (1) of the Universal Declaration of Human Rights states "Everyone has the right to take part in the government of his country, directly or through freely chosen representatives". In Bandaranaike v. de Alvis (1982) 2 SLLR 664 at 673 Samarakoon CJ called that right "the most precious of them all". That right should not be lightly interfered with.

The petitioner in his petition stated that the reasons for the commissioners’ conclusion regarding his complicity with the assassination of Mr. Athulathmudali are set out at pages 213 and 214 of part 1 of the report (para 21). This was admitted by the 1st and 2nd respondents in their affidavits (vide para 19 of each respondent’s affidavit). I mentioned this matter here, because when we inquired from the learned counsel for the commissioners, in the course of the hearing, reasons for the conclusions reached by them, he did submit that some more reasons may have appeared in the proceedings, which were not stated in the report.

I shall now set out those reasons verbatim from the report, stated after the point at which the commission purported to "convict" the petitioner of contempt.

"The question is, why is he avoiding being questioned respect of the terms of reference and other relevant matters? His conduct is not consistent with his innocence. Quite apart from the legal consequences that have followed his foolish conduct, the evidence before us concerning him shows;

(a) that President Premadasa found him a loyal ally, one who co-operates with and supports and helps him.

(b) President Premadasa had strong motive to eliminate Athulathmudali, a strong political opponent, one who has insulted him by the so-called impeachment motion, one whom he had sacked from the UNP, one who has severely criticised his co-operation with the enemy, the LTTE, by supplying them with modern weapons; cash and handcuffs to be used as instruments of torture, one who was seeking to expose him before international community. Mr. Sirisena Cooray sided with Premadasa on all these issues.

(c) being badly defeated by Athulathmudali in the number of preferential votes cast in the Colombo district which was Mr. Sirisena Cooray’s stronghold, Mr. Sirisena Cooray as general secretary of the UNP moves to oust Athulathmudali from representing the Colombo district and send him to Kalutara district. That was the evidence. Mr. Cooray would have his own motives to get Athulathmudali out of the way.

(d) strong political links are shown among Messrs. Premadasa, B. S. Cooray, Weerasinghe Mallimarachchi and U. L. Seneviratne. Mr. Seneviratne is still not at national level. The other three were Ministers, leaders and his masters;

(e) there is reliable evidence which we accept, coming from several sources that Mr. U. L. Seneviratne played a key role in the assassination that took place in Kirulapone on 23-04-93; he has sought to contract a person to kill Athulathmudali; he has requested bombs to be made and supplied all the materials for same and they were in fact made and given to him. All the while the assassin Janaka alias Sudumahattaya was present and it was in U. L. Seneviratne’s own flat within President Premadasa’s premises named "Sucharitha" in Keselwatta;

U. L. Seneviratne had earlier organised the physical attack on Athulathmudali at the Fort Railway Station on August 7, 1992 and the raiding party which formed an unlawful assembly had started off from his flat at Sucharitha. He too was present during the assault. But this shows the level of his organisational skill - an obvious frontal attack quite openly done, without guile with no effort made to disguise the operation or make identification difficult. But was such a man capable of all the elaborate planning and all the lies and deception that has unfolded? Deception has been a paramount consideration! We think not.

On the contrary, that direction has to come from elsewhere, from people with exceptional organization skills, capable of having the support of a large number of public officials such as policemen to make such an event (ie); an assassination of a political leader in with a chance, a credible winning candidate, possible and to supply cover-up. Here we see just those things. The police withdraw security. After the event police tamper with evidence and continue to present a false picture to the public. Another person is killed and falsely presented as the assassin. Without this help the event is not possible. And to what length they have gone to falsely implicate the LTTE.

To get the cooperation of all these public officials needs someone at a high political level who would protect them by using his political powers, with money, with newspaper publicity, with weapons etc. Seneviratne, the field manager of this enterprise using the underworld characters, thugs, drug dealers could not have got the co-operation of all these policemen from different police stations and authorities. But President Premadasa and Mr. Sirisena Cooray could have. They had the political clout to secure this assistance to get policemen to use their lawful powers in an improper unlawful manner. We see this over and over again, physical attacks and a police cover-up.

There is evidence of an admission by U. L. Seneviratne whilst in remand jail, where his company would be persons similarly placed, that it was Sirisena Cooray and Weerasinghe Mallimarachchi who wanted Athulathmudali destroyed as he was a political threat, and therefore U. L. Seneviratne spent money to get it done. What he did is mentioned (supra). We have evidence that the assassin Sudumahattaya was a friend and bodyguard of minister Mallimarachchi. We also have evidence that Mr. Ranjit Upali de Silva alias ‘Soththi’ Upali was bodyguard to Mr. Sirisena Cooray and worked closely with him participating in election campaigns, turfing Gam Udawas, given contracts by Cooray to run canteens at these shows etc. and general security supervision. ‘Soththi’ Upali it was who held Ragunathan in captivity and had him killed and the scene where his body lay made up to simulate a case of suicide. These are compelling and irresistible inferences we draw from established circumstances".

This is followed by the conclusion reached by the commission in relation to the petitioner which I have referred to in full elsewhere in this judgment. Those conclusions are that the petitioner;

(1) was directly concerned in and was a member of the conspiracy to assassinate Mr. Lalith Athulathmudali whose murder amounts to political victimisation;

(2) procured police officers to assist, which amounts to corruption;

(3) made up a false senario in respect of Rangunathan’s death; a fraudulent act to subvert the course of justice.

Besides the double here say evidence of the prisoner there was only suspicion lurking through out in the commissioners minds as evidenced from the report that the petitioner "could have" done various acts. The technical rules of evidence certainly are not applicable to the proceeding of the commission. But what probative value did the evidence of the prisoner who spoke about a confession of Seneviratne and involvement of the petitioner carry? Principles of natural justice require that a tribunal’s decisions are based on some evidence of probative value. (See Mahon V. Air New Zealand (1984) 3 AER 201 and R. V. Deputy Industrial Injuries Cmr, ex p More (1965) 1 AER 81.) About Seneviratne the commissioners said "U. L. Seneviratne did not respond in anyway to the notice. He was not represented by an attorney-at-law. He did not give evidence or wish to cross-examine anyone. He kept silent (page 199). The commission did not want to examine him as a witness. Regarding a person called Somaratne who did not respond to the section 16 notice, the commissioners said "He kept silent as he was entitled to". The same silence, the petitioner was not entitiled to and the commissioners evinced a great anxiety to examine him as a witness. His lawyers were refused audience on the ground that the petitioner was absent. The commissioners have not been able to specify any act of commission or omission on the part of the petitioner to come to their conclusions. As Bacon has observed "Suspicions amongst thoughts are like bats amongst birds, they ever fly by twilight. Certainly these are to be repressed or at least well guarded; for they cloud the mind..."

We hold that the determination and recommendations are flawed in the first place, as being unreasonable in the sense that the commissioners did not call their own attention to the matters which they were bound to consider (see Associated provincial Picture Houses Ltd. V. Wednesbury Corporation (1947) 2 AER 680). Secondly, as they are not based on evidence of any probative value (see Mahon V. Air New Zealand (1984) 3 AER 201). Thirdly, because those determinations and recommendations have been reached without giving the petitioner a right of hearing through his lawyers, in breach of the principles of natural justice and in breach of the provisions of section 16 of the SPCI Law.

Conclusion

For the reasons given above we issue a mandate in the nature of a writ of certiorari setting aside and quashing;

(1) the determination of the commission that the petitioner is guilty of the offence of contempt against or in disrespect of the commission in terms of subsection 12 (1) of the SPCI Law;

(2) the finding and determination that the petitioner is disqualified under Article 89 of the Constitution from being an elector and under Article 91 from being elected as a Member of parliament;

(3) the finding and determination that the petitioner was directly concerned and a member of the conspiracy to assassinate the late Mr. Athulathmudali, procument of police officers, and making up a false scenario in respect of Ragunathan’s death;

(4) the recommendation that the petitioner be made subject to civic disability if the commission’s view of the consequences of (1) above are unacceptable, on the basis of their finding as at (3) above.

We make no order as to costs.

Devolution in Sri Lanka: The north - East Provincial Council 1988- 1990

by Dayan Jayatilaka
Continued from last week

The Formation of the NEPC

The months October-December 1988 constituted the period of the confinement and delivery as it were of the NEPC, covering the choice of candidates, the nomination, the ‘election’ and the establishment of the Council. In every single one of these sub-stages, major errors were made which blighted the already bleak prospects of the Council and contributed to sealing its tragic fate.

Almost one and a half years after the Accord, the EPRLF, TELO and a section of EROS i.e. those forces who constituted the NEPC, were more integrated at every level, including the psychological with India, than they had been in the years prior to that while in protracted exile on Indian soil. The dynamic of a Cyprus solution for Sri Lanka was underway. Ranasinghe Premadasa, the arch villain of the piece in almost all Indian renditions of whichever persuasion and of course the EPRLF’s version, and held responsible for the Unilateral Declaration of Independence (UDI), was in fact still a few days away from nomination as Presidential candidate of his party!

The Indians and the EPRLF conducted the electoral episode as if totally oblivious of the way in which it was perceived both outside and within the North-East. At a moment when everything should have been done to enhance the legitimacy of the Premadasa Government and certainly nothing done that could damage it, the election was conducted with as much insensitivity as was imaginable. For example, the nominations were handed over in Ampara with the Kachcheri (Government Secretariat) being taken over by Indian paratroopers and the Sinhala employees kept at bay in the adjacent buildings.

A major strategic/structural flaw in the electoral process was its partial nature: elections were held only in the Eastern Province and not the Northern Province. The North being the psycho-political centre of Tamil nationalism, an electoral process which encompassed it was vital for the legitimacy of the Council among the Tamil people; just as its non-holding severely damaged that legitimacy. It also meant that the security situation was-or could credibly be interpreted as unsatisfactory in the North after more than a year of warfare by the great IPKF; only the East was sufficiently pacified. It is probable that a mutually satisfactory horse deal was done between the Eelam National Liberation Front (ENLF) which permitted the avoidance of a contest in the North, but the political consequences of this ‘closed shop’ approach were most negative.

All these errors were dwarfed by the implications and consequences of decisions taken in two other spheres related to the establishment of the NEPC. These were the choice of Chief Minister and his Ministry and secondly, the choice of the administrative ‘capital’ of the merged North East. Jaffna would have been an entirely logical and understandable choice as administrative centre-as would Batticaloa, given the actual base areas of the EPRLF. If there was a need to get away from Jaffna- centrism, then Vavuniya, a mid-point between North and South and a fulcrum for the whole North-East given its ‘rough equidistance’ from Jaffna, Trincomalee and Batticaloa would have been suitable. Instead the firm, unanimous choice was Trincomalee (the only dissenter was non-Tamil i.e. this writer). This indicated clearly that the Tamil political forces in the NEPC, leftism notwithstanding, was consciously taking a position-and with no misgivings-well within the ‘bourgeois’ nationalist tradition of the Federal Party, which at its founding Congress, proclaimed Trincomalee as the capital of the merged North-East, the proposed Tamil linguistic state within a federal set-up. The notion of Trincomalee as the capital of the Tamil Homeland was thus proven to be deeply embedded in the psyche of even the anti-TULF, anti-LTTE Tamil groups; which goes a long way in explaining their behaviour both towards the Colombo Government as well as towards the Sinhalese (and the Sinhalese police) in Trincomalee once they assumed office in the NEPC. It must be said that the choice of Trincomalee dovetailed perfectly with the strategic perceptions and interests of the Indian state (officials of which, in Delhi, were already speculating about the need and possibility of keeping an irreducible two Brigades in Trincomalee, in the event of an IPKF pull out.) It must also be remembered that in the discourse of the NEPC/EPRLF at that time, Trincomalee was the, ‘capital’ of the Provincial Council, or rather, the Provincial ‘Government’ as they called it. All of this explains why, when they assumed office, their attitude towards Colombo was one which contained the brusque, demanding impatience of a nation pressing for the speedy transfer of power to its representatives in its capital in a process of decolonisation!

Of the various names that surfaced and were discussed both among Indian officials and EPRLF leaders as possible Chief Ministerial candidates, the choice that was finally made was the most disastrous of all-as it turned out. One option, suggested by this writer, was to pick a non-party personality of some standing in the Tamil community, and the name that came to mind was that of Prins Casinader, a retired school principal; tough but culturally sophisticated; a prominent human rights activist in the East and a suitable interlocutor with Colombo. That choice too was negated by the EPRLF leadership and the Indian officials. The rejection of the two options mentioned above betrayed a complete lack of understanding of broad United Front and Popular Front tactics on the part of the ‘Leninist’ EPRLF leadership. Having been out in the cold for so long, it was impossible for the EPRLF to resist the temptation of leading and dominating the Council, both defacto and de jure.

That decision having been made, it was a question of which leading EPRLF personality would be the Chief Minister: K Pathmanabha, his deputy Suresh Premachandran or Vardharajah Perumal. (This writer’s strong urging at the time to all concerned that Perumal should not be given the post, proved to be unerringly correct as the disaster that ensued demonstrated).

The choice turned out to be an instance of the importance of the individual in history. Pathmanabha steadfastly refused to be persuaded of the importance of taking over as Chief Minister and did not push for Premachandran either, preferring to continue to retain the latter as his deputy in the work that he, Pathmanabha, wished to devote his priority to. Vardharajah Perumal was not only actively canvassing for the post (which Suresh Premachandran did not do), he was strongly supported by the Indian High Commission with which he had cultivated firm political ties. That pretty much decided the issue. Pathmanabha’s erroneous decision stemmed from multiple sources, personal and ideological-political He was a naturally shy, self-effacing man and despite the fact that he permitted a personality cult of him to be erected by the party from 1985, the notion of holding high office in a formal, institutional sense would have been little short of traumatic for him. This apart, he saw the provincial council as being other than the centre of gravity of the political process; indeed he held it desirable that the Council should be secondary and felt it his duty to help shift the emphasis.

Pathmanabha wanted to build up the mass organisations of the EPRLF and to strengthen the party tasks which he felt more suited to and which warranted his personal involvement, while Premachandran was to concentrate on building up the military capacity of the party. He seemed to feel that possible deviations that could arise within the party with the setting up of the Council could be neutralised by building up strong grassroots organisations and a political apparatus. Some of the weaknesses and distortions that he would have observed within the EPRLF on his return to the North-East, he may have felt could be rectified by such a course of action spearheaded by him. In short he was opting to go back to the kind of activism he was used to and comparatively quite good at-instead of confronting and accepting the new tasks and role that history had placed before him. His choice was to have tragic and terminal consequences.

Pathmanabha’s reluctance doubtless stemmed from his genuine, broadly socialist and revolutionary convictions, but constituted a hopelessly utopian application of them. "The concrete analysis of concrete conditions" recommend by Lenin as utterly crucial would have made very clear that all future prospects for the EPRLF and for a non-LTTE project had been shoehorned into the NEPC. That was where things were at- and going to remain for the foreseeable future. One of Lenin’s key strategic postulates was that the key link of the chain-the link that would ensure possession of the chain as a whole-must be identified and grasped firmly and held onto until a new ‘key link’ was identified. The NEPC was that key link (and this was pointed out to Pathmanabha and his loyalists and advisors by this writer). Pathmanabha failed-or refused to grasp it .

The NEPC was the main circuit through which resources, financial, material (vehicles) and even military, began to flow. This meant that it became the channel of sustenance and patronage (the fount of which was, of course, the Indians). Pathmanabha’s role over the years of exile in India as the main intermediary with Delhi and thus the securer of everything from food and money for the boys, instantly became redundant. Of course he wanted to shufffle off that burden and return to his role of revolutionary organiser of his happiest days of the 1970s and early 1980s, but he succeeded in resuming his role as the clearly dominant political leader of the EPRLF only in the run-up to the Central Committee meeting in June 1990, after the war broke out between the Tigers and the Premadasa administration. It was to attend this meeting that Pathmanabha came to Madras, as did 11 others, some flying in from Colombo. It is in the flat that they were lodged that he and the others were massacred by the Tigers.

What made it strategically vital that Pathmanabha take office as Chief Minister was that the two main, challenging tasks, faced by and within the NEPC required precisely those characteristics that Pathmanabha and no other possessed. Relations with the Sinhala people, primarily within but also without the province had to be correctly managed. Pathmanabha, being the least chauvinistic of all the leaders of the Eelam Movement (from the TULF across the board) could have handled this with a considerable degree of sensitivity. The other problem was the erosion of the EPRLF’s popularity and even the historic base that Pathmanabha had built up, due to the extremely brutal counter insurgency tactics, including terrible torture and summary execution, indulged in by the EPRLF cadres-turned-militia, under the benevolent eye of the local party bosses. Pathmanabha’s humanitarianism would have been able to start reducing the excesses, but only if he availed himself of the added authority and power of the Chief Ministership. Despite his presence, he was unable to curb these practices in the East in late 1988 and not feeling strong enough to tackle the problem or the offenders and their patrons head on, Pathmanabha turned a Nelsonian eye, lapsing into a deeply troubled silence. However, when the only real chance-and the final one-came to equip himself with the leverage to turn things around, he did not see it and stepped aside, confident that his moral prestige among the cadres combined with a renewed spell of bringing in mass support (and he was in fact the leader with the greatest popular appeal) would suffice to bring about the desired result. Even as regards the first consideration, he probably thought that Tamil Sinhala amity could be best achieved if he engaged in political and educational-propagandist work at the grass roots, directly among the people, his time not wasted in NEPC duties and his efforts uncircumscribed by its Constitutional confines. Al1 this was understandable but he was very wrong, as power in the hands of the gung-ho Vardharajah Perumal, temperamentally the polar opposite of Pathmanabha, would rapidly demonstrate.

Apart from the Chief Ministerial choice, the thinking that went into the choice of the other Ministers of the Council was erroneous in the extreme. The Muslim representation was not accorded either to the Sri Lanka Muslim Congress (SLMC) or to the EPRLF’s own quite small cadre of Muslim activists. Instead, in the name of proletarian internationalism and alliance with the Southern Left, it was given to Mr. Abbo Yussoof, a Central Committee member of the Communist Party, who as a teacher, had afforded Vardharajah Perumal shelter and accommodation in the precincts of his school during the latter’s difficult first days in Colombo after the Accord. Pathmanabha thought it a good idea which would act as a gesture of thanks for the support extended to the EPRLF by the Communist Party of India (CPI) and especially its Tamil Nadu leader, the highly respected M Kalyanasunderam. Thus it came to be that the Muslims of the East found representation in the Council in the person of an ‘atheistic’ Communist, who was not from the Eastern Province, and who, moreover, was an ‘Indian Moor.’

A similar error was almost made concerning Sinhala representation but was pre-empted by J N Dixit, the Indian High Commissioner-only to be made several months later when a vacancy arose with the resignation of the present writer as the first Sinhala Minister of the NEPC. Vardharajah Perumal pushed for the post to be given to one of the EPRLF’s Southern comrades, a leading member of the revolutionary group aligned with the EPRLF. This person was however, a Keralite, Karathara Thomas George, who had, since the mid-1970s, used Sinhala nom de guerres, (Susil George Seneviratne/Susil G Seneviratne/George Seneviratne/Joe Seneviratne) which was perfectly acceptable in clandestine anti-systemic politics, but should have automatically ruled him out from holding office as a representative of the Sinhalese in an elective public body. Pathmanabha agreed with Perumal, possibly because what was necessary was so malleable and ‘token a Sinhalese’ that it could be overlooked that he was not ethnically a Sinhalese. The fact that he could converse extremely fluently in Tamil perhaps endeared him considerably to the EPRLF leadership. Realising the political embarrassment that could result, Dixit insisted that a better known Sinhalese close to the EPRLF and known also in Delhi (namely this writer) be given the post. When I resigned in March 1988 and requested in my letter of resignation that the SLMP be invited to nominate a suitable Sinhala representative to the vacant post, this was ignored and Perumal’s original choice given the portfolio.

The icing on the cake was that the Chief Minister Perumal, was neither from the North nor the East, but rather was a Tamil of recent Indian origin from the hill-country, albeit domiciled in Jaffna.

No sooner was Perumal made Chief Minister than the first and only test of strength between him and Pathmanabha was to take place. Perumal was politically accurate in this issue while Pathmanabha was morally and ethically correct. Perumal won the contestation and there never was one again. Henceforth, there would be a Perumal- dominated policy consensus to which Pathmanabha would occasionally tack on a radical adjunct, which in turn, more often than not, proved either ineffectual or rendered the entire policy line more disastrously erroneous and surrealistic than it already was.

Ironically enough the test of strength in question concerned Premadasa, whose Presidential election campaign had got underway. Perumal, who had studiously and opportunistically ignored the man until then, saw that he was looking around for a Tamil ally. The Indians had decided in September 1987 that they were going tilt against Mrs. Bandaranaike at the upcoming elections. Having urged Jayewardene to amend the Constitution and run for office a third time, an option which the latter toyed with and abandoned, not least because it was strongly argued against by Ranjan Wijeratne. India then reluctantly decided to live with and tilt towards the UNP candidate Ranasinghe Premadasa, who they felt could be kept within certain confines thanks to Gamini Dissanayake, J R Jayewardene, Ranjan Wijeratne and of course the presence of 70,000 Indian troops. Perumal went along with the Indian line, welcomed the candidate at the Trincomalee airport and extended politico-electoral support to him. Pathmanabha, on the other hand wanted the party to secure votes for the United Socialist Alliance candidate, Ossie Abeygunesekara. Perumal carried the day.

What is of paramount importance to the analyst is that despite, or more accurately, quite irrespective of the political-and by that time, personal-rapport that had built up between Perumal and Premadasa, the following occurred on 17 December 1988: the EPRLF led NEPC issued its first policy Declaration upon assuming office. Two days later on 19 December Ranasinghe Premadasa was elected President of Sri Lanka. The opening policy statement of the NEPC presented to the Provincial Assembly on 17 December 1988 read as follows:

"The Provincial Government is of the view that the devolved powers offered under the Thirteenth Amendment to the Sri Lankan Constitution hardly satisfy the aspirations of the Tamil speaking people of the North-East Province. Hence it will commence negotiations with the Central Government and the Government of India with a view to working out a satisfactory package of devolution."

The context and the implications of the statement are analysed below.

1) It showed no appreciation of the prevailing balance of forces, a grasp of which was imperative for survival and success. The combination of an aggressive, invasive diplomacy on the part of the Third World’s most powerful state, the strongest ally the Tamil cause had and was likely to for some time, could not push beyond the 13th Amendment-and that too took a two-thirds majority on the part of its local ally the UNP. There was no way to go further than this; to obtain a better result-except perhaps to adopt the Prabhakaran option of a very long haul, independently and out in the cold.

2) The 13th Amendment itself narrowly squeaked past the Supreme Court. Nothing with augmented powers could have got through at that stage of the evolution of Southern consciousness, which in turn had to be taken as a given if the strategy were to be one of systemic reform.

3) The attempt to stretch the contours of the State was fuelling, or at the very least was being instrumentalised, by a serious insurrection and therefore, expecting more-and faster as well-was tantamount to asking the systemic political forces to commit harakiri.

4) The overwhelming popular sentiment, that of the majority of the majority was perceived to be so anti IPKF that the manifestos of both the SLFP and UNP Presidential candidates pledged the withdrawal of that force.

In such a context, to publicly express, dissatisfaction at the sufficiency of the devolution contained in the 13th Amendment and furthermore to threaten to reopen discussions on the subject not only with Colombo (referred to as the Central Government) but also with the Government of India, and to make this statement at the very moment of assuming incumbency after a keenly fought and controversial election, betrays an attitude that was far from positive, constructive and open minded. More importantly, it implied that a confrontation was inevitable between the NEPC parties and any Colombo Government whatsoever. It just happened to take place on Premadasa’s watch.

The points in the previous paragraph are buttressed by the First Status Report issued a few weeks later by the Vardharajah Perumal administration, which while escalating its expressions of dissatisfaction puts forward two documents; the first a draft to replace the 13th Amendment and second a draft to replace the Provincial Councils Law of 1987!

It is vital to recall the political backdrop against which all this was taking place and the context in which the ‘tardiness’ on the devolution front that the NEPC was complaining of arose. R Premadasa won the presidential election on 19 December. By the time he took his oaths on 2 January 1988 he faced a raging insurgency. His main opponent Mrs. Sirima Bandaranaike was soon to file a petition in the Supreme Court challenging the results of a very violent election. Premadasa had to focus on a Parliamentary election that was to be held in February, which meant not only concerning himself with the political-programmatic- propaganda aspects of winning an election over a strong opposition, but also on how to handle the firestorm of violence that the JVP was directing against party candidates and organisers of the UNP. One could hardly imagine a fuller plate. Yet, he did make time for Vardharajah Perumal and moved as expeditiously as was possible to have the essential administrative infrastructure set up. All this had to be pushed through a state apparatus which not only contained a fair share of personnel hostile to the Provincial Councils (PCs) and sympathetic to the SLFP (which, was widely expected to win the parliamentary election), but was also ducking JVP bullets at the time!

None of this was of any concern to the NEPC which demonstrated a combination of tunnel vision and arrogance that was truly self-destructive. Dissatisfied with the progress on the devolution front made during this period i.e. between the Presidential and Parliamentary elections held in an unprecedented context of systemthreatening violence, and ill disposed towards the 13th Amendment and the PCs from the very outset (as revealed by the initial policy statement) the EPRLF then made the move that was tantamount to a crossing of the Rubicon. This was the March 1989 visit of the joint EPRLF/NEPC leadership to India, where they met Rajiv Gandhi and went public with their request to him to use pressure on the Government of Sri Lanka (GOSL) on a more advanced form of devolution. This took place a few weeks after the parliamentary poll-at which, very sign)ficantly, the NEPC parties had revealed their political weakness and failure by polling less than the LTTE’s electoral proxy, the EROS (which campaigned on that platform!) in Trincomalee itself’ the very seat of the Provincial ‘Government’! This act of brinkmanship-the high profile lobbying expedition to India, was thus being undertaken by a political formation with diminished legitimacy and credibility. This act commenced the stage of the political confrontation between the NEPC and Colombo, which provided the opening for the LTTE to exploit and which subsequently escalated into the military confrontation that culminated in the Council’s collapse.

What is also of sign)ficance here, is that despite the degree of influence the Indians had over the NEPC, an influence which extended to the preparation of the budget of the NEPC at the Indian High Commission in Colombo, there was no dissuasion by them of any of these irresponsible statements and actions, ranging from the first policy statement, through the drafts to replace the 13th Amendment and the Provincial Councils law upto the visit to India in March 1989. Even if one were to speculate that the adventurism was encouraged by the RAW-the ‘bad’ Indians as distinct from the ‘good’ ones-every one of these statements and actions could be reasonably assumed to have been embarrassing to the Government of India, to its Colombo based political ally and to its relationships with both the UNP as well as the SLFP. Therefore it is inexplicable as to why, after the first statement, the South Bloc and the Prime Minister’s Office-the politicals-who were still doing the running on the Accord together with military (the so-called North Block), did not rein the EPRLF/ NEPC in.

There was exactly one year between the EPRLF’s Delhi trip and the Unilateral Declaration of Independence by the NEPC; one year in which the NEPC was like a runaway locomotive headed inexorably for a crash.

At that time, mass consciousness in the South was at an unprecedentedly high pitch on two main issues: anti- Indianism (specifically anti-IPKFism) and anti-Tamil separatism. And this mass consciousness was fuelling the JVP insurrection which was posing the most serious threat to state power ever faced by any South Asian state. The EPRLF/NEPC had a clear chance for survival. They had to bid for a political space that was non-separatist and not so markedly pro-IPKF presence. Since they were anti-Tiger, they could have capitalised on that and enhanced their non-separatist profile, or projected one. Instead of turning their weakness as a secessionist force into an asset, by offering themselves as a moderate alternative to the LTTE, they tried to use their new role in the NEPC to outflank the LTTE on the Tamil nationalist flank. In short they tried to fight an old battle once more, a battle which they had lost, over the Tamil nationalist space, with the LTTE, instead of emphasising their identity as a democratic and progressive formation. They tried to revive the strident Tamil nationalist programme using a vehicle that was structurally incapable of the task. In doing so, they also projected themselves as the most pro-IPKF force among the Tamils; that which was most wedded to an entrenching of the IPKF presence. Thus they succeeded in projecting the worst of both worlds to the Colombo Government besieged by an anti-Indian insurrection, and to the Southern polity and people They appeared a pro-Indian and stridently nationalist, confrontationist formation. This permitted the EPRLF/NEPC to be outflanked, outmanoeuvred and destroyed by the LTTE (initially using its ally the Eelam Revolutionary Organisation of Students (EROS) to approach Premadasa). Prabhakaran spotted the gap left wide open by the EPRLF; he read the contradictions correctly.

Next week: The Premadasa Administration, the NEPC and the IPKF

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