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The Anatomy of an E-mail: Response by Dr.Nihal Jayawickrama

Oct 23, 2010 5:30:24 PM- transcurrents.com

Two weeks ago, Dr Dayan Jayatilleka alleged that I had drafted a constitutional amendment in the 1970s in an abortive attempt to enable Mrs Bandaranaike to extend her term of office. Last week, in an article in which he transported himself into a fairy tale world of "heroines" and "knights", the mythical kingdom of "Camelot", and the legendary "Lancelot" and "Galahad", he distanced himself from this allegation by claiming that it was in fact made by an unidentified person in an email received by him. The email apparently read as follows:

"Re. Mrs Bandaranaike, I remember well the party conference of the SLFP during my time, when she with Anura and others decided to get approval for her to move against the United Front regime and kick out the left . . . I told her then, that if she breaks the United Front she will be in the political wilderness, and argued that the United Front was the only way for her to secure a reasonable majority at the next election . . . Then she concocted an idea to extend her term of office by two years and got Nihal Jayawickrama to amend the Constitution, and he brought this document to my house and asked me to comment The poor chap did not realize that I would oppose such a move. I went to the Janavegaya office and told the editor to announce that the SLFP was planning a constitutional coup, and send copies of the constitution to JR, NM and the Governor General. This move was abandoned. She went for election, and you know the rest."

Fundamental flaws in the tale

Unfortunately for Dr Jayatilleka, there are fundamental flaws in the tale contained in this email. First, the break-up of the United Front occurred in mid-1975. The next parliamentary election was not due until two years later in mid-1977. With the Constitution permitting the National State Assembly to continue until mid-1977, what was the need for a constitutional amendment to achieve that same result? Second, is it likely that, at the moment when the LSSP and CP members crossed the floor to join the Opposition and she lost her parliamentary two-third majority, the first thought that entered the Prime Minister’s mind was to introduce legislation that would have required a two-third majority to enact? Third, the reference to the "Governor General" to whom the editor of the Janavegaya was asked to send "copies of the constitution" raises a further question because that office was abolished in 1972.

Perhaps the must fundamental question is: How do you extend a Prime Minister’s term of office by a constitutional amendment? A Prime Minister has no fixed term of office. Mrs Bandaranaike could remain Prime Minister only for as long as she enjoyed the confidence of the National State Assembly. If it is claimed that what was contemplated was the extension of the life of the National State Assembly, how could that have ensured that Mrs Bandaranaike would continue to be the Prime Minister, when defeat by a simple majority of one on a confidence motion was all that was required to oust her from office, as happened in December 1964? After 32 years of presidential rule, one tends to forget, as the unidentified email writer appears to have, that the term of office of a Prime Minister could not have been extended by constitutional amendment.

Dinner-table conversation

Dr Jayatilleka seeks to corroborate the anonymous email writer’s allegation by reference to a dinner-table conversation between his father and me which he claims to remember, but which I have no recollection of. In reply to his father’s query concerning a planned extension of the life of parliament, I am alleged to have said that "the Army Commander, General Sepala Attygalle, when sounded out had told the Prime Minister that he could not guarantee the loyalty of the army in such a scenario". I can state categorically that in the seven years that I served the Government of Mrs Bandaranaike, on no occasion, in any forum, have I heard a service commander being asked by the Prime Minister or any other Minister whether or not he could guarantee the loyalty of the military forces. Such a situation never arose; not even at the height of the JVP insurgency of 1971. I wonder whether this politically conscious young son of a veteran journalist was confusing a dinner table exchange of political gossip that might have taken place at another later time, in another political context? After all, the conversation is said to have been about a "planned extension of the life of parliament", an event that actually occurred in 1982 under a different political dispensation.

Kitchen cabinets

Finally, Dr Jayatilleka seeks support for his theory that there was a "significant or meaningful" attempt to extend the Prime Minister’s term of office, by reference to Mr T. B. Subasinghe’s letter of resignation from the Cabinet in which he warned of "extra-constitutional centres of power", to Dr N. M. Perera’s reference to an "invisible government", and to Dr Colvin R. de Silva’s analysis of "hidden power structures". As a trained political scientist (which I am not), Dr Jayatilleka must surely know that these are all expressions of legitimate frustration by cabinet ministers who believed that they were being excluded from the crucial levels of decision-making. Indeed, there were references at the time by critics of the Government to the existence of a cabinet". By no stretch of one’s imagination could these be construed to imply the nightmare in Dr Jayatilleka’s Unconscious that the Prime Minister was intending to introduce a constitutional amendment to extend her term of office by two years.

I attach no credence to then Opposition Leader, Mr J. R Jayewardene’s alleged claim that Mrs Bandaranaike was seeking an extension of her term of office. It was a notorious fact that the clever strategist that he was, Mr Jayewardene often "created" situations in order to evoke a political response favourable to him. His claim, which had no basis in fact, that he was about to be arrested, rallied thousands to his residence, and on a later occasion to Katunayake airport as well. His extremely successful nationwide satyagraha campaign was fuelled by his claim, again unfounded, that the country was on the verge of being transformed into a dictatorship.

A ludicrous suggestion

I wish to reiterate (and would challenge anyone to prove otherwise) that I did not prepare a draft bill to amend the Constitution to extend either the term of office of the Prime Minister or the life of the National State Assembly. I was not requested by anyone to do so, nor, to my knowledge, did anyone else prepare such a draft bill. Following the resignation of LSSP and CP members from the government parliamentary group, and the further defection of persons such as Mr T. B. Subasinghe from the SLFP, the government’s parliamentary majority was so slender that there were fears that it might not be possible even to have an extension of the state of emergency approved. To have suggested a constitutional amendment at such a time would have been ludicrous, if not eccentric.

The anonymous email writer claims that I "brought this document" to his house and asked him to comment. If I had drafted a constitutional amendment for the Prime Minister, why would I have taken it to someone else’s house and asked him to comment, unless that other person was either the Minister of Justice or the Legal Draftsman? Obviously that other person was neither, since he is described by Dr Jayatilleka as "a player in the ‘70s power-bloc". I did not fraternise with such persons, and I certainly did not visit them in their homes. This is absolute fantasy.

The 1970-77 Government’s record

In prose loaded with alliterative language, Dr Jayatilleka has attempted to draw me out to defend the record of the 1970-77 Government. For added measure, he has included such inaccurate statements as "a regime that jailed Fred de Silva, the Deputy Editor of the Daily News". (In this era, when individuals are imprisoned on orders of military officers, one again tends to forget that there was a time – not only in Camelot – when justice was administered exclusively by judges). I do not propose to humour him in this regard for two reasons.

Firstly, I was not a cabinet minister responsible for formulating policy. I have never been a member of the SLFP or of any other political party. To describe me as "the most prominent and pro-active high functionary" of that time, and to hold me accountable for the record of that government, is to pretend not to know how governments function. I was a practising lawyer who was invited by the Prime Minister to head the Ministry of Justice for the specific purpose of introducing a programme of legal and judicial reform which, as she reminded me, I had often complained was long overdue. I performed that task to the best of my ability. The Court of Appeal Act of 1971 and the two Administration of Justice Laws of 1973 and 1975 bear testimony to that. Of course, the Insurgency of 1971 was not on the original agenda, and arrangements relating to the accommodation of persons taken in combat as well as those who surrendered, followed by the investigation, trial, release and rehabilitation of over 20,000 young idealistic men and women, became an unwelcome preoccupation. I take pride in the fact that not one person in any of the detention camps that were hurriedly opened, especially on university campuses, died in custody.

Secondly, it is a matter of record that I have recognized that some of the regressive developments of the decades that followed could be attributed to acts and omissions of the 1970-77 administration. These include the failure to recognize the legitimate rights of the Tamil-speaking community when the new constitution was being drafted; the erosion of the constitutional settlement upon which independence was granted in 1948 (which included such elements as an independent public service commission and protection against discriminatory legislation); the abolition of the judicial review of legislation; the subjection of permanent secretaries to "the direction and control" of ministers; and the standardization policy in respect of university admissions that contributed to the growth of youth militancy in the north. I have spoken publicly, and written and published, on these matters on numerous occasions. Even while in office, I emphasized the tyranny of the two-third majority, as well as the futility of seeking to resolve the ethnic problem through detention orders. I have asserted my view that the Vaddukkodai Resolution was the logical response to the 1972 Constitution.

The Special Presidential Commission of Inquiry

I am surprised at Dr Jayatilleka’s attempt to legitimize the infamous Special Presidential Commission of Inquiry of 1978. Perhaps he was too young at the time to understand that that was a political device created by President Jayewardene to "eliminate" (in the sense of removing from mainstream politics) his two principal political opponents, Mrs Bandaranaike and Mr Felix R Dias Bandaranaike. Not having been a politician, I have often wondered why I was chosen to be the first "victim". Perhaps it was the desire of a few of my learned friends to remove me from the legal arena. Or was it to punish me for declining to "co-operate" in the exercise? Whatever the motivation, I was provided with a unique opportunity to place on record, on oath, my performance in public office, and to be cross-examined on it for six weeks. A spin was placed on parts that were reported in the state controlled press. The commission’s report paid little or no regard to evidence.

I would, therefore, recommend to Dr Jayatilleka that he read the monumental opening and concluding addresses of my counsel, Mr. S. Nadesan Q.C., who appeared with Mr J. C. T. Kotelawela and Mr Faisz Mustapha. He would learn a great deal about the Government of 1970-77 which he is now seeking to denigrate.

The Special Presidential Commission was not a judicial body, Three judges handpicked by the executive assembled at the former Queen’s Club to perform an executive task. It was the first occasion when sitting judges participated in what they knew to be a blatantly political exercise. It was also the single act of political meanness that destroyed altogether the unwritten concordat that had existed until then between Government and Opposition - a vital element in the proper functioning of a democratic system. It was perhaps poetic justice that one commissioner was found guilty by the Supreme Court of a corrupt act, while another reportedly spirited away the commission’s refrigerator, carpets and curtains.

Attack on integrity

Dr Jayatilleka has challenged me to quote a single line written by him in defence of the Eighteenth Amendment. If I did so, he would stop writing to this newspaper. I have no desire to abort his journalistic career or any other career he seeks to pursue. At the same time, I wish that he would not distort what I have written. I referred to the "indefensible Eighteenth Amendment", not the "indefensible Rajapakse regime", as he asserts in the penultimate paragraph of his article. This is but one example of the flippancy with which he has sought to attack my integrity.