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This is my Nation


Waters Edge sends Chandrika
to political retirement

What the Waters’ Edge verdict effectively does is to politically assassinate Chandrika Kumaratunge. If Kumaratunge harboured any ambitions of returning to power in one form or the other, those hopes have been nullified by the verdict as the former President is now a political liability and no party would want to risk having her on their platform.

It may have been one more judgment for the Supreme Court of Sri Lanka, but it was also a giant leap in the annals of justice in this country: the judgment on the ‘Waters Edge’ case delivered recently has set a new benchmark for the rule of the law in the land with a commensurately significant political fallout from the verdict looming in the days ahead.

In fact, there was no need for surprise when the verdict eventually came because, coming events had already cast their considerable shadows: a few weeks ago, former Treasury Secretary P.B. Jayasundera was found guilty of abuse of power and had a fine imposed on him. And, when Jayasundera continued to hold offices even after the verdict, he was summoned to court.
But, Jayasundera is comparatively small fry in relation to the Waters’ Edge case. Here, the first respondent was no less than the then Executive President of the country, Chandrika Kumaratunge. And the real test was in the long held belief that the Executive President was immune from prosecution due to provisions in the 1978 Constitution.

Article 35 of the Constitution states that “while any person holds office as President, no proceedings shall he instituted or continued against him in any court or tribunal in respect of anything done or omitted to be done by him either in his official or private capacity” and at first glance, this appears to be a blanket immunity conferred on the President and this is a principle which had hitherto been unchallenged in our courts of law.

The ‘Waters Edge’ verdict sheds new light on this concept. In her landmark judgment Justice Shiranee Tilakawardane states - with the other justices agreeing - that “we take opportunity to emphatically note that the constitutional immunity preventing actions being instituted against an incumbent President cannot indefinitely shield those who serve as President from punishment for violations made while in office, and as such, should not be a motivating factor for Presidents - present and future - to engage in corrupt practices or in abuse of their legitimate powers”..

This is indeed a significant paradigm shift in the country’s political context. Sri Lanka, especially since the advent of the executive presidential system of government, has seen that absolute power corrupts absolutely. Successive leaders have acted with impunity because of the immunity they believed they were conferred with by virtue of the Constitution. No significant challenge has been made to this assumption either. Now, that appears to be history.

From the perspective of Chandrika Kumaratunge, the former President may well rue the day she decided to sack the United National Front government headed by Ranil Wickremesinghe. That UNF regime was always daggers drawn with Kumaratunge, but it could be argued that had the UNF been in power today, this fate would not befall Kumaratunge.

Kumaratunge, of course, had a fairy tale entry to Sri Lankan politics. From being a political nobody, she usurped brother Anura’s role in the Sri Lanka Freedom Party (SLFP) and transformed herself into Chief Minister of the Western Province, Prime Minister and then Executive President, all in less than two years. It was the most meteoric rise to power in this country, barring that of her mother’s several decades ago.

Since her retirement, Kumaratunge has opted not to go quietly. She has publicly been critical of the present leadership of the SLFP and expressed her tacit support to the SLFP (Mahajana) faction, led by the rebelling Mangala Samaraweera. A nexus between the United National Party (UNP) and the SLFP (M) has already emerged although Kumaratunge has refrained from actively campaigning for either the SLFP (M) or the UNP.

What the Waters’ Edge verdict effectively does is to politically assassinate Chandrika Kumaratunge. If Kumaratunge harboured any ambitions of returning to power in one form or the other, those hopes have been nullified by the verdict as the former President is now a political liability and no party would want to risk having her on their platform.

Indeed, the Waters’ Edge judgment is quite damning about Kumaratunge’s conduct as President. It states in conclusion that “without reservation... the 1st Respondent (Kumaratunge) has failed to act with the requisite level of responsibility warranted by her position, abused her power and has acted in a manner that reveals a desire to accommodate an interest or interests other than that of the People of Sri Lanka.”

Such words, and the tattered reputation that Kumaratunge has now earned for herself means that she would be forced into political retirement and the SLFP(M) would be compelled to look elsewhere for a charismatic leadership figure.
It is doubtful as to whether the UNP ever entertained notions of accommodating Kumaratunge within their ranks, but now it’s alliance with the SLFP(M) faction is also called into question, because the very existence of the SLFP(M) and the level of grassroots support it commands, become intangible and arguably negligible, with the exit of Kumaratunge’s dynamic presence from the political arena.

President Mahinda Rajapaksa, of course, stands to gain from all these developments especially with elections due over the next few years and the collective opposition in a state of inertia and disarray. Nevertheless, we are sure President Rajapaksa too would tread cautiously as he must surely recognise that what applied to the Kumaratunge presidency in the Waters’ Edge judgment may well apply to him as well in his retirement - and he wouldn’t surely want to follow Kumaratunge’s example in making his exit.

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