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I was interviewed recently by Ceylon Today with regard to the forthcoming visit of Navenethem Pillay, the UN High Commissioner for Human Rights. Some of what I said had to be edited out for reasons of space but, though the paper did a good job, I thought that some of what they had to omit was worth reproducing.
The folllowing answers were given in an interview with regard to the cancellation of the MOU between the Trincomalee Urban Council and the American Embassy to set up an American Cornet in the UC premises. Unfortunately it was not used, but since the issue needs further exposition, the questions and answers are reproduced here.
1. Do you think the interference of the ministry is warranted?
The Ministry should certainly have an overview of the activities of foreign missions in Sri Lanka. The word interference creates the wrong impression, since the principle should be institutionalized and, if activities occur without the Ministry being informed, then remedial action is necessary. Whether this should have led to the suspension of the MOU is another question, but sadly the Ministry, here as elsewhere, is simply reacting to a situation without understanding and establishing the principles that should govern such situations.
2. What do you think is the motivation for the MoU for Trinco being suspended, given the embassy has already established two centres both in Jaffna and Kandy?
I don’t think you need assume any special motive for the Ministry acting inconsistently.
3.It has been mentioned that the two centres mentioned above are also to be scrutinised, is this scrutiny justified over something that is not written in the constitution? Or do you think it is an obligation for the ministry of external affairs to have been informed?
I am not sure what scrutiny means. Given that I believe there is an obligation for the American Embassy to have informed the Ministry of External Affairs about its activities, the best remedy would have been to call the Ambassador in and explain the situation to her. But the Ministry does not know how to deal with the Americans, which is why it goes round and round without addressing issues direct. Read the rest of this entry »
A completely new constitution would be best, but since that could take time, there should be swift reform of the worst features of the current constitution.
2. “Ensure the independence of the judiciary whilst promoting transparency with regard to appointments” is what you have said regarding judicial appointments. This is a bit vague. Do you think the President of the Republic should have the ability to directly appoint Judges of the Supreme Court after seeking the recommendations of the Parliamentary Council which will invariably not oppose presidential nominations? This effectively means the President has direct control over Supreme Court appointments. Is this conducive or should this power be curbed in a potential new constitution?
There are three separate issues with regard to the Judiciary. The first is independence with regard to the decisions it makes, which must be absolute. As I put it in the series on Constitution Reform now on my blog, www.rajiva.wijesinha.wordpress.com, ‘there should be no interference, by individuals or any other branch of government, with regard to the content of the decisions it makes’.
The second is procedure, as to which the Judiciary must conform to laws, and make rules for itself where the law is silent. I have written at length about the inconsistencies in the way in which judges give out sentences, and how they fail to fulfill their basic obligations of checking on prisons etc.
The third is appointments, where usually on a Presidential system the President appoints. However this should be subject to controls. Requiring the consent of the legislature or a component of it would be good, but consultation also can be effective in preventing hasty or inappropriate appointments. Such consultation should be transparent, which the 18th Amendment permits, because it does not require the Parliamentary Council to maintain confidentiality.
In a Westminster style Constitution, where the Head of State makes appointments, but on the recommendation of the Prime Minister, there is usually no rejection of a recommendation, but the very fact of a second entity being involved makes the Prime Minister careful. So too, if the Parliamentary Council functioned now, the President would necessarily be careful about not putting forward names of those who might cause him embarrassment. Both Shirani Bandaranaike and Mohan Peiris could have fallen into this category, and in fairness to both of them, they should not be subject to rumours but their conduct should have been subject to transparent scrutiny. Read the rest of this entry »
Responses to the Norwegian paper Bistandsaktuelt re the report on Sri Lanka of the UN High Commissioner for Human Rights.
Overall, do you think the report gives a fair assessment of the human rights and reconciliation situation on the ground?
The report is helpful in drawing attention to several matters that could be dealt with more efficiently, but it seems unfair in that it does not also record positive achievements during this period. Unfortunately it has to be seen in context and the problem is that the Office of the High Commissioner has been relentlessly critical of Sri Lanka in the past, including soon after the conclusion of the conflict when she tried to subvert a decision of the Council. This makes it difficult to take her complaints seriously, though I believe we should try, since she can also be helpful when her mind is off the political agenda set by some of her staff.
Unfortunately our Foreign Ministry has been so inept that it may now be difficult to distinguish between these Jekyll and Hyde elements in her character. Still, I think we should try, and register that some of the points she has made are valid. We have been slow in several matters, which I regret, though to be fair we are no slower than other countries in similar positions.
We were unfortunate in that she prepared her report before the LLRC Action Plan Task Force came under new management, which has been much more efficient than what was there before. Much has been achieved in the last month, especially with regard to the Lands question. But certainly we could do more, and I am sorry that government tends to react adversely to such reports without moving pro-actively on Reconciliation, as I have recommended through several reports to the President. Unfortunately his advisers who seem to have the impression that Reconciliation and Human Rights are only about explanations to the others have not encouraged him to move on these more practical recommendations too.
According to the report, the Sri Lankan government has not done enough to investigate allegations of human rights violations that occurred at the end of the war. It is also criticized for not doing more in the areas of reconciliation and the resumption of livelihood. What is your response to this?
We have done much more with regard to livelihood than other countries in similar situations, and that is why those who visit Sri Lanka are much more appreciative of our position. With regard to reconciliation, I think it is a pity that we rely so much on the trickle-down effect, and it is time Reconciliation also came under a Ministry that could devote due attention to this important matter.
With regard to human rights violations, I believe the LLRC did a good job, and it is a pity that those who have political agendas were critical of the LLRC report, since that has distracted us from concentrating on the few areas where the LLRC did find cases that required further investigation. The High Commissioner has made the matter worse by referring to the Darusman report, which has no official status here, and is a shoddy piece of work, as she must realize if she has any understanding of evidence as opposed to gossip.
However we should certainly investigate what the LLRC drawns attention to, and I believe this is being done by the army. I have not seen that report, but I would agree that it should be public, as should be the report of the Udalagama Commission to which she also refers, and government should make clear what action it proposes to take. We are told that some matters are now with the Attorney General, but information should be precise. Unfortunately, as we saw with the horrors of what the Americans did in Iraq, such matters are not dealt with transparently. Though two wrongs do not make a right, I would wish the High Commissioner were tougher with more flagrant abuse elsewhere, and also that the media and organizations that focus on us did more about those ongoing abuses. But when someone like Elie Wiezel justifies the death of a child when Osama bin Laden was killed, then one realizes that morality matters to very few people, so long as they can criticize those they want to criticize for other reasons.
1. How do you respond to the ICG report allegations that the impeachment and removal from office last month of the country’s chief justice constituted the completion of a “constitutional coup” which began in 2010 when parliament passed the eighteenth amendment, removing presidential term limits and handing the president responsibility for appointing judges, senior police and human rights officials?
As always, the ICG confuses various issues in its relentless campaign to denigrate Sri Lanka as a whole. The 18th amendment, while not ideal, was an improvement on the 17th, which confused two different constitutional dispensations. In any Presidential system the President does have responsibility to appoint, but ensuring consultation is vital. Unfortunately the consultation mechanism enjoined by the 18th amendment has been nullified by the decision of the 2 opposition members on the 5 member Council to boycott its proceedings after accepting appointment, thus permitting anyone the President suggests for any position to be appointed without question.
I thought the manner in which the Chief Justice was removed was regrettable, but she was certainly flawed, and I hope now I will get better cooperation in areas in the National Human Rights Action Plan in which she was not interested..
2. Has the government shown sufficient commitment to fulfill the recommendations of the LLRC, particularly in relation to investigating disappearances and evidence of child conscription, demilitarising the north and reaching a political settlement that devolves some power to provinces? Could it do more?
The government has done a lot, and I attach the latest report, which is also available on www.priu.gov.lk. Unfortunately the Task Force was headed by someone who did not devote enough time to monitoring and promoting action, though the Civil Servant involved did his best. Now the most senior Civil Servant in the country has been appointed to run things, and there has been a marked difference already in responsiveness to issues that those who want to see quicker action, including myself, have raised. It must though be understood that we have moved much more quickly in some areas than any other countries which suffered similar tragedies.
Prof. Rajiva Wijesinha, the government’s nominated parliamentarian and adviser to President Mahinda Rajapaksa, has refuted media speculation over possible disciplinary action against him over the decision to abstain from voting in favour of the impeachment of Chief Justice, Dr. Shirani Bandaranayake.
In an interview with Ranga Jayasuriya, the former academic reiterates his stance to abstain from voting and contends that there is no culture of sycophancy in the ruling party.
1. There is talk that the ruling UPFA is planning to take disciplinary action against you for not voting for the impeachment . Are you aware of any such move ?
I have read about this in a couple of papers and have since been asked about it by other media outlets. I have heard nothing from any official source, and as I observed to the lady (from the Lankadeepa) who called me, it is significant that the papers (such as that and Mawbima) saying such things are strongly opposed to the government. I would suggest that those wanting to create trouble for me would also not mind trouble for the government.
2. The president and his inner circle may have expressed their ‘displeasure’ for your act of insubordination..
If this is a question, it would depend on what is meant by ‘his inner circle’. But I would think, while some individuals might be displeased, insubordination is the wrong word, because I explained my position clearly.
3. Do you think Sri Lankan politics, with its deep seated culture of sycophancy, which was made increasingly clear by the voting patterns of ruling party MPs during the 18th amendment and the impeachment motion, provide even bare minimum room for the elected representatives of people to act true to their consciences?
Firstly I see nothing wrong with the 18th amendment, which was a great improvement on the confused and confusing 17th amendment – just as the Local Government Elections Bill, though flawed, was a great improvement on what we had had before.
Secondly, while there are certainly instances of sycophancy, it is not a culture, as we can see from the principled position of politicians such as D E W Gunasekara, and indeed the different opinions from those of the President and his manifesto expressed by different politicians, on say issues such as 13 plus.
And I am sure that, recalling the adulation of previous Presidents by individuals also engaged in adulation now, the President will not be fooled by sycophancy, and will prefer the loyalty of principled politicians such as DEW Gunasekara.
4. Do you still stand by your position which prompted you to abstain from voting for the impeachment?
5. Why did you abstain? The proper thing could have been voting against the impeachment?
No, because as I explained in the speech I could not deliver but which appeared (in the Island) the following Sunday, I felt the conduct of the Chief Justice had not been entirely proper, and I did not want to seem to condone this.
6. Isn’t it a bit lame to abstain, specially, when you know that the circumstances under which the chief justice Shirani Bandaranayake was impeached was manifestly unfair and a breach of natural justice and that the PSC was ruled unconstitutional as the country’s apex court?
I don’t see this as lame at all, given the circumstances as I have explained them. The problem is that we had an inappropriate Standing Order, which should have been amended years ago, as suggested by three distinguished opposition MPs in the eighties, and promised since. Sadly the Committee to amend Standing Orders has not met for three years, and I am the only MP who has brought this up regularly with Parliamentary officials and written to the Speaker about it. It is a reflection on other members of the Committee, and in particular the opposition members who have a greater responsibility to ensure proper procedures, that no one else bothered about this.
The problems with the Standing Order, and the process followed by the PSC, did not warrant a vote against the motion, given the irregularities that had emerged notwithstanding the procedural flaws. Even though it is regrettable that Dr Bandaranayake’s lawyers were not told about the witnesses to be called so that they might have had an opportunity to cross examine them, the evidence of Justice Shirani Thilakawardana seemed very worrying.
7. Do you accept the new chief justice Mohan Peries as the lawful chief justice of this country?
Since the President had removed Mrs Bandaranayake from office following the Parliamentary vote, and she had indicated her decision to vacate office, it was necessary for another Chief Justice to be appointed. I would have preferred more consultation, but the failure in this regard I attribute to the Opposition which has completely flouted the 18th amendment.
I have regretted Mr Sumanthiran not accepting appointment to the Parliamentary Council because I believe he could contribute a lot in a small and serious Committee, and perhaps had he been on the Council, Dr Bandaranayake might never have been appointed. But he at least refused the position, whereas the Leader of the Opposition and Mr Swaminathan accepted and then welshed on their responsibilities.
I am astonished that no one has drawn attention to their failure in this regard, because had they commented conscientiously on any nominations – which government representatives should also do – then the President would have an obligation to reconsider. When that does not happen, the President may well go ahead with appointments that first come to mind or are suggested to him, whereas reasoned objections should lead to further reflection and, if appropriate, a change. In this case, with the Parliamentary Council not functioning satisfactorily, the President had to go ahead as he had done with Dr Bandaranayaka, when the Opposition was blathering about her elsewhere, but not where they should have.
The response below was sent to Tim King of Salem News, who posed the question cited. I am most grateful to him for contacting me, because many foreign journalists are content with simply consulting members of the Diaspora (almost exclusively Tamils supportive of elements if not all of the LTTE agenda) and Tim writing to me I think helps to introduce some balance into the article – which otherwise amply establishes the point I make about the dogmatic approach of expatriates. The full article may be accessed at http://www.salem-news.com/articles/january172013/maid-honor-tk.php
I noticed that. I don’t mean to sound naive, but I wonder if international incidents like this unite all Sri Lankans in your opinion, to some degree? I am asking Tamil activists and writers and they don’t think it makes any difference at all, but if you want to answer the question above it would be useful for the article, thanks so much.
Surprise has been expressed with regard to the execution of Rizana that ‘all sides came out in favor of saving the girl, Sri Lankan Muslims, Tamils, and plenty of Sinhalese’. I found such surprise strange, but realize that understanding of the actual situation in Sri Lanka has been distorted by not just the years of conflict but by the presentation of Sri Lanka by expatriates.
Within Sri Lanka there are hardly any animosities based on race itself, and most Sri Lankans treat people of other communities simply as human beings. This is not to deny that there are resentments based on perceptions of discrimination, as well as instances of violence, and this in turn has led to resentment of terrorist activity. Tamils have felt oppressed by a majoritarian political dispensation that they felt hijacked the state, and this can translate into the feeling that Sinhalese have supported such a dispensation, but this hardly ever precludes willingness to interact positively with individuals.
The situation is different abroad, where memories of discrimination, and of three outbreaks of violence, have fuelled deep bitterness. This is exacerbated by reportage that concentrates on negatives – just as on a smaller scale some Sinhalese expatriates are conscious only of terrorist activity. Appetites that feed on themselves will not be able to see the suffering of individuals like Rizana objectively. Within Sri Lanka however we continue to interact, in schools, in offices and in commercial life without registering or bothering about the race to which those we interact with belong.
Responses to questions from IRIN, the news agency funded by the UN Office of the Coordinator for Humanitarian Assistance.
1. As a government official, how do you view the report and what is your response?
I no longer have any executive responsibilities, so cannot speak for the government, but as a former government official, who headed the Peace Secretariat during the conflict period, I feel that much has been omitted. As with the Darusman report, there seems to have been reliance on allegations that have not been substantiated, and inadequate attention has been paid to facts that can be established.
2. Were there any parts you felt specifically strongly about? If so, which ones?
I have only gone through the main part of the Report, but amongst omissions there are -
a) Failure to record that government initially wanted WFP and UNHCR to stay on in the Wanni, along with the ICRC, when it asked other agencies to leave. Some Non-Governmental agencies had allowed the LTTE to use their vehicles for military purposes, and at least one worker declared that he thought he should be fighting for the LTTE, so you can see why government could not allow such people to continue en masse. There was also the suspicious case of an attack on a FORUT vehicle, which suggested some connivance, and clearly it was best to ensure that no casualties occurred. However the agencies that provided the most needed assistance were specifically asked to stay.
b) The record of damage to Kilinochchi is minimal, including after the UN agencies left. As head of the Peace Secretariat, I would check each day on any allegations of abuse, and ask for explanations, and the records I have (in Colombo, but I will go over them again if you wish) indicate minimal harm to civilians. There were I think over 400 air attacks, for instance, until Kilinochchi fell, and in fewer than 30 were there even allegations of civilian deaths, and in over 20 of these the numbers were one or two. It is a pity that similar concern is not shown by the UN, or those who now criticize the UN about Sri Lanka, about civilian deaths in drone strikes and other attacks that seem to violate norms of conduct with complete impunity.
An Interview with Prof.Rajiva Wijesinha M.P. – Part 3
Q: Some observers of the Sri Lankan situation opine that a creeping illiberalism is pervading society at large under the Rajapaksa regime. As a liberal and an advocate of liberal democracy, are you not perturbed by the erosion of those very values in Sri Lanka? Are you not concerned over the creeping illiberalism?
A: I don’t think there has been any particular erosion of values recently, compared to what we went through under Jayewardene. Indeed we have a vibrant media, and relentless criticism of whatever is seen as abuse, which was certainly not the case in those days. Personally I believe that things began to ease under Premadasa, even though the Colombo elite who relished Jayewardene’s authoritarianism complained of Premadasa. But I remember the media freedoms he introduced, the liberalization of communications and the fact that we had free elections.
The point was that Premadasa , like President Rajapaksa, thought what he was doing was for the benefit of the people at large, and they were not frightened of the people or of elections. Of course both naturally attract people who are not as interested in the people as in themselves, and abuses occur, but we do have safety valves in the form of an independent judiciary which did not exist in Jayewardene’s time.
Q: But the Judiciary is under attack?
A: Unfortunately you now have a clash with the judiciary, but we must remember that, though impeachment of the Chief Justice seems excessive, we are dealing with a lady who was put on the bench with no previous judicial experience simply because the then Minister of Justice recommended her. Such a person rising through seniority to the position of Chief Justice is an anomaly, whereas President Premadasa was able to appoint a totally respected person, who was the most senior judge on the Bench at the time, as Chief Justice when a vacancy arose – confuting those who said he would make a political appointment.
” I think we should be working towards constitutional reform based on recognizable constitutional principles. One of these should be strengthening the legislative role of the legislature by strengthening the role of committees in legislation”
Q: As Liberals do you not find cohabitation in this Govt incompatible with your beliefs? Do you not feel uneasy in the midst of fellow travellers of liberalism/ liberal democracy in the conferences and other events you frequently attend, as the government that you are part of has violated with impunity, those very values you and fellow liberals advocate?
A: There is no reason whatsoever to feel uneasy, because I am proud to be associated with a government that has done more for the people of Sri Lanka than any other in recent times, and set an example to the world of how to deal with terrorism. I think we could do more for the Tamil people, and to make the minorities in general regain confidence in Sri Lanka as a whole, but we have certainly done more than critics of the government declared would be done when we got rid of the Tigers.
Liberals almost all over the world have to work in coalitions, which means being in government with those one does not agree with totally. We all know that compromises are necessary, but one does not compromise with regard to fundamental principles, and I am known well enough by Liberals internationally for them to be confident that I will not compromise on fundamentals. But I will not hesitate to criticize those who attack Sri Lanka unreasonably, with no attention to the singular positive achievements of this government. Read the rest of this entry »
Q:Although you say you do not perceive yourself as a “rebel” MP I am sure you must be aware of reports describing you as one. There have also been reports that you were to be moved out of Parliament on account of you being a “rebel”and that your National list MP slot would be given to Mr. Rohitha Bogollagama. It was also said that Mr. Bogollagama would be appointed External Affairs minister thereafter. Is this a likely scenario?
I don’t think this is on the agenda of the government and, though I have been told by two senior members of government that Mr Bogollagama was behind the stories, I do not believe this for a moment. Though I do not know him intimately, we got on well when he was Minister of Foreign Affairs, and he was always prepared to listen on the few occasions on which I spoke to him on important issues. I should add that he called up out of the blue some months back to express his support for me when I had been attacked in a communiqué from the Foreign Ministry.
I would say then that these reports about Mr.Bogollagama replacing me are another examples of the technique of hitting out in all directions and hoping that new animosities can be created. I should add in fairness to Mr. Bogollagama that he was a very successful Foreign Minister and, though I thought that his replacement would do a better job, I was completely wrong.
Q: Given your stated disappointment with the current External Affairs Ministry I want to ask you about another related reference in this sphere. It was reported that you had requested an opportunity to speak on the votes of the External Affairs Ministry and also informed the Chief Whip that you would be critical of the Ministry. Thereafter the Chief whip Dinesh Gunawardena had reportedly checked with the powers that be and stopped you from speaking . Was this what happened?
That again is complete nonsense. I was told that speeches in the Third Reading would be given in terms of Committees of which one was a member, so the idea of speaking on External Affairs never occurred to me. I thought I would be speaking on Education, and I had also asked for the Child Development and Women’s Affairs, a Ministry with which I have been working a lot because of the requirements of the Human Rights Action Plan and because its Secretary was one of the most thoughtful and efficient persons I had come across in the Public Service.
But when I got back from the Conference on Indo-Sri Lankan Relations that I had attended during the last stages of the Second Reading of the Budget, I was told that I had been allocated Resettlement and External Affairs. I told the office of the Chief Government Whip that I would be happy to speak on the former, but I might be critical of the latter Ministry and he might like to reconsider. Since he told me that he had made the decision himself initially, because he thought I would be suitable for this, I had no doubt the decision would be changed, but a week passed before I was told the position, so I prepared speeches over the weekend – as I had done while in India for Education.
” I was also the only Parliamentarian to contribute to the journal that Parliament decided to publish, though perhaps for that reason, there has not been a second volume as yet. I believe the essays I have written on reforming Parliament, though they do not seem to have had an impact on my colleagues, will be useful when we finally all realize the need for constitutional reform “
Sure enough, on the day of the Resettlement debate, one day before the External Affairs debate, I was told that I would not be required to speak, but was also told that this was because there were already too many speakers. This was not at all surprising, and I should note that the Chief Whip was not involved in communicating anything to me.
Q: So there is no misunderstanding with Dinesh Gunawardena as alleged?
No! In fact this is again an example of the animosity creating technique, since Dinesh Gunawardena is someone I like and respect very much, ever since the days when we were instrumental in setting up the Democratic People’s Alliance under which Mrs Bandaranaike contested the 1988 Presidential Election. Significantly, I think, he went out of his way to congratulate me on my speech in the Resettlement debate, and this is typical of a very warm-hearted man. Read the rest of this entry »