UNWITTINGLY SUPREME COURT CAN MAKE SRI LANKA INSECURE!

1 February 2012 06:30 pm - 0     - {{hitsCtrl.values.hits}}

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To change the constitution with comfort a 2/3 majority is required. This government on a show of hands has the numbers intact but will it materialise with many minor parties in the lineup? It would, as the numbers are overwhelming and Thondaman does not want police powers given to the Chief Ministers, not having confidence in the Central Provincial Council. The moment has arrived to make the majority meaningful by relocating police and land powers unequivocally in the central government. Though not conferred officially, it can be read otherwise in the constitution. There should be no corridor left opened to merge the North and East. It is always possible for the Supreme Court to interpret the constitution. Don’t blame the Supreme Court if it interprets unfavorably, as the words are abstruse. The wording attached to the 13th amendment can give rise to varied interpretations. It’s too dicey to leave the provision unattended: another J.R. Jayewardene is always a possibility and a future Supreme Court of a different character too. It was the decision of one judge in a deeply divided bench in the 13th Amendment case that made it a possibility. The north/east remained merged for 16 years on a gazette notification issued by J.R. Jayewardene that the Supreme Court deemed illegal. The decision to file action was taken after H.L. de Silva and I had a brief discussion as to the timing of instituting action that was prepared long before and decided to bring S.L. Gunasekera and Manoli Jinadasa into the legal team. The JVP was the front vehicle used via Wimal Weerawansa and Vijitha Herath. Timing was of essence to its success. Had the action been instituted when J.R. Jayewardane or Chandrika Kumaranatunga held Presidency the chances of success could not be assured though the gazette was a glaring irregularity. That was a case that did not require competent lawyers because the decision was obvious. The hitch was in the intervening delay: the need was to choose the correct moment. The Supreme Court was bold to make that historic decision because Chief Justice S.N. Silva in the patriotic period of his career had character, strength and intellect to overcome great pressure exerted on him from unimaginable quarters. Some other may have desired to cure the deficiency. The service rendered by Sarath Silva and two other esteemed judges require repetition as the decision was given on the eve of the peace talks with the LTTE. H.L. de Silva and I were among those representing the Sri Lanka delegation and were described as wreckers of peace. Already there are a few erratic decisions by courts that tend to vest land with the provincial councils. In the North and East with land at the disposal of the chief ministers, in the event of another insurrection, no premise will be available to house the military in secure zones. Land will be at the mercy of hostile forces. The army will be compelled to indulge in amphibious manoeuvers in absence of a land cover. A crafty chief minister can alienate ahead strategic lands that would be pivotal to security considerations. No operation would be feasible if high-rise buildings are erected close to the airstrips. Investigation into the coming of an insurrection cannot be launched without the police since the military does not have such rights. If a chief minister is sympathetic to the cause of secession as is the TNA, it is unsafe to vest them with police powers with or without arms. The TNA’s call for a police force without arms is to arm them later. Leaving (as Thondaman fears) arms and ammunition under the control of chief ministers can be a frightening experience. The country will overwhelmingly vote at a referendum to rectify the great harm caused by an Indian constitutional draft that came by way of the Indo-Sri Lanka Pact and resulted in the 13th Amendment. Timing is right again to correct a historical error – it’s a ‘now or never’ moment with a 2/3 majority. Possibly only the TNA would oppose it. The UNP was never prepared to concede police and land powers. India will not press for such power except to grumble officially provided the grievances of the Tamils outlined in the LLRC report is implemented without undue delay. Tamils not under TNA control or without an LTTE mind frame would welcome a move that prevents chief ministers in having armed men at their disposal. An elected President is a safer proposition to be in control of arms and ammunition. The Supreme Court is placed in jeopardy in interpreting phrases that are ambiguous. One reasoned judicial decision is sufficient to place the country in peril. It’s only with a 2/3 majority in parliament, a President strong willed and prepared not to barter police and land powers and an electorate aware of the dangers of secession, that can make Sri Lanka forever secure with the deletion of a few words in the constitution. All necessary ingredients are firmly in place. Now is the time for the opinion makers to make the call with constitution making in the offing. The real danger lies if the Supreme Court in the future makes a pronouncement that will be treated as conclusive. It must be taken out of that grey judicial landscape. If a conclusive judicial decision is made unfavorably and without a two- third strength in parliament, Sri Lanka will be on the road to disintegration.
By Gomin Dayasri
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