qrcode.29127961April 22nd 2015
The Secretary General

Parliament
Dear Secretary General

I have now had a chance to go through the consolidated version of the draft 19th Amendment, which was given to us by the Hon Prime Minister yesterday. The amendments he has included, which will I presume be introduced at the Committee Stage, assuage some of my worries but others remain.

I would therefore like to propose the following amendments at the Committee Stage. These are a consolidated version of what I have sent before, omitting those concerns that have been already addressed. The bold numbers are those in the draft amendment, numbers not highlighted are the relevant section in the Constitution. The highlighted and italicized section below any proposed amendment gives the reason for such amendment.

I hope this schedule can be made available to all Members on the day the debate begins, and that sufficient time will be given to present them when amendments are taken up.

Yours sincerely

Rajiva Wijesinha, MP

I would like to propose the following amendments to the clauses as numbered below of the proposed Bill to amend the Constitution, in the latest version issued in Parliament on April 21st 2015, but dated March 16th 2015. Read the rest of this entry »

qrcode.29128112The present government has made a complete hash of the Cabinet. Whereas we talked in terms of a Cabinet based on rational principles, we seem to have adopted the rag-bag approach instead, with ludicrous combinations such as Home Affairs and Fisheries (whereas District and Divisional Secretariats should obviously have been part of Public Administration) or Minister of Policy Planning, Economic Affairs, Child Youth and Cultural Affairs.

This is ridiculous, but it is inevitable when Cabinets are formed with priority given to keeping people happy, or by those with inflated beliefs in the capacity of some individuals. What a country needs rather is a clear vision of what government needs to do, and how this can be done most effectively. The Cabinet should be based on the needs of the people, not the needs or egos or even simply the seniority of particular politicians.

I therefore present here the Second Chapter of ‘Political Principles and their Practice in Sri Lanka’, which scrutinizes what government should do, and why.

In many countries, especially those like Sri Lanka which were under British colonial rule, there is a belief that the powers of government are unlimited and so are its duties. This may be because, under the colonial system, absolute power belonged to a foreign state which did not have any responsibilities towards those whom it governed. Colonialism could not conceive that the people are above the government, and that the functions of government should be limited to those the people want or need.

 

The state centred view of government was reinforced in modern times by communist goverments. Communist systems emerged in the twentieth century as the main opponents of capitalist systems. Communism and capitalism originally referred to economic ideas rather than political systems. However, communism developed into a political system that gave absolute power to the government. This was perhaps because it emerged in states where absolute monarchies had prevailed previously. Karl Marx, who initially developed communism as a social and economic theory, had believed that the state would eventually wither away. But communist governments, which emerged first in feudal and agricultural societies, merely reinforced the old model that gave absolute power to the government. Read the rest of this entry »

qrcode.29033155April 10th 2015

 

 

The Secretary General

Parliament

 

Dear Secretary General

 

Further to the amendments I have already proposed to the draft 19th amendment to the Constitution as it was gazetted, I wish to also propose the following amendments at the Committee Stage –

 

  1. Delete Sections 95 to 99 of the Constitution and replace with

 

95 (i) Within one week of Sections 95 following being amended, the President shall establish a Delimitation Commission ….(as in current 95). The Commission shall be required to present its Report within three months of its being appointed.

(Current 95 (2) to remain)

 

96 (1) The Delimitation Commission shall divide Sri Lanka into 150 constituencies so that the population of Sri Lanka shall be divided equitably between those 150 constituencies, with the variation between the constituency having the largest number of voters and that having the smallest number not exceeding 10%.

(Clauses (5) and (6) of the current Constitution shall remain as (2) and (3)

 

97    The President shall by Proclamation publish the names and boundaries of the constituencies, which shall be the basis of elections to Parliament at the next ensuing General Election.

 

98 (1) At General Elections, each voter shall be entitled to cast two separate votes. One shall be for an individual, chosen from amongst those nominated for the constituency in which such voter is entitled to vote. The second shall be for a political party, from a list of those registered political parties that are contesting that election. Political parties will be deemed to be contesting the election if they have nominated candidates for at least 5 constituencies.

 

In addition to candidates nominated for constituencies, each Party contesting the election shall be entitled to nominate on a National List 10 candidates who are distinguished for service in any two of the following areas – Administration, Business Enterprises, Cultural Activities, Education, Social Service. Each Party, in presenting its National List to the Elections Commissioner shall indicate the qualifications of each candidate on that list.

 

(2) Each constituency will return as the representative of that constituency the individual who received the most votes cast within that constituency.

 

(3) One hundred more members will be returned to Parliament on the basis of the second party vote, such that the final composition of Parliament shall reflect proportionately the votes cast for each such Party.

 

(4) Each party shall be told the number of seats to which it is entitled based on the votes cast for such parties.

 

(5) All candidates elected under 98 (2) shall be seated in Parliament. For any vacancies that remain in the entitlement made under 98 (4), each party may nominate upto half the number of seats it is entitled to from the National List, to the maximum of 10. The remaining vacancies shall be filled by those candidates contesting individual constituencies on behalf of the Party who received the highest percentage of votes in the individual vote.

 

  1. (1) Current 99 (13) (a) save that the section from ‘Or independent group’ to ‘Parliament’ should be deleted.

 

(b) Where the seat of a Member of Parliament elected on the individual vote to a constituency becomes vacant, a bye-election shall be held for that constituency, with each voter being entitled to one individual vote.

 

(c) Where the seat of a Member of Parliament elected by means of the Party Vote becomes vacant, the political party to which such member belonged shall be entitled to fill that seat, either through nomination of a candidate on its National List, or through the next candidate of those who contested individual constituencies on behalf of the Party who received the highest percentage of votes in the individual vote.

 

Renumber Clause 104 as 104 (1) and add

 

104 (2) If the Proclamation under 97 shall not have been made at the time of the next General Election, the Elections Commissioner shall hold such election on the system described above, subject to the proviso that, instead of the 150 constituencies envisaged, he shall proceed on the basis of the current 160

Constituencies. There shall then be only 90 seats available to be apportioned under 98 (3).

104 (3) If any party received more seats on the basis of the constituency vote that it is entitled to under 98 (3), it may retain such seats for the duration of that Parliament, and Parliament shall during such period consist of 250 members plus such overhang.

 

Yours sincerely

 

Rajiva Wijesinha, MP

Political Principles 4This is a much misunderstood doctrine, and I fear that ignorance of the principle will lead to reform of the current constitution in a disastrous manner. When there was a pledge to abolish the Executive Presidency, the more unsavoury elements in the UNP immediately declared that it would be replaced by an Executive Prime Ministership.

That is an absurd idea, but I found even Jayampathy Wickremaratne dogmatically declaring that an Act was being prepared to made such a transfer immediately. I argued against this strongly, first on the grounds that it would play straight into the hands of Mahinda Rajapaksa. He, and my friend Dayan Jayatilleka, were arguing that a vote for Maithripala Sirisena would amount to a vote to put Ranil Wickremesinghe in power. Had Jayampathy unveiled his draft Act as he claimed was necessary, the government would have made mincemeat of the opposition campaign.

My second point was I felt even more important, namely that it would be immoral to ask people to vote for Maithripala Sirisena only to transfer power immediately into the hands of someone who would never have been elected on his own merits. It is to Ranil Wickremesinghe’s credit that he recognized this. When I spoke to him shortly before the Sirisena candidature was announced, I confirmed that the Liberal Party would not support Mahinda Rajapaksa, but I added that we could not support Ranil either. The reason I gave was that he simply could not win, and he immediately agreed and said that was why he had tried to persuade President Kumartunga to come forward.

That confirmed my view that Ranil, though able enough with regard to economic discipline, was simply no judge of people – as the appointments he makes testify, culminating in the selection of Tissa Attanayake as General Secretary of the UNP. I told him then that Chandrika would do even worse than he would, and we had to hope for someone more acceptable to the nation to emerge. I think we both knew by then that Maithripala Sirisena would indeed emerge, but we respected confidentiality and left it at that.

What we now have then is ideal, with Maithripala Sirisena as President and Ranil working under him as Prime Minister. But I have realized, from the manner in which the Cabinet has been constituted, that Ranil has thought of electoral considerations first, and this is no way to run a country. It is for that reason that, in the reforms we are engaged in, we must understand basic principles of constitutionality. I therefore present here only the section on the Separation of Powers from my book –

In a few countries, such as the United States, the executive and the legislature are almost wholly independent of each other. This is in accordance with the doctrine of Separation of Powers, put forward by Montesquieu, a political theorist of the eighteenth century. Montesquieu believed that the people would suffer if any one individual or institution had absolute power. Therefore, he advocated that the legislature (the body responsible for making the laws) should function independently from the executive (the body responsible for implementing the laws). These ideas were followed during the drafting of the American Constitution in the 1780s.

 

Sri Lanka, along with many other countries, follows the British model which does not separate the executive from the legislature. In Britain, the king initially had absolute power. He ruled with the help of a cabinet appointed according to his wishes. Gradually however parliament developed a rival authority and it became customary for the king’s first minister to obtain the support of parliament. Then, during the nineteenth century, it was established that the king could not appoint a candidate as prime minister unless he had the confidence of parliament. Now, after a parliamentary election, the monarch invites the leader of the party which has a majority in parliament to form the government.

This in effect means that the prime minister, who runs the executive branch, also controls parliament. Earlier MPs felt that their main responsibility was to the people who had elected them and therefore they often challenged the executive on specific issues, even if they broadly supported it. Now however with allegiance to a party being considered more important than the interests of the nation or the people one represents, even parliamentarians who have no executive position do not normally challenge their party leader when he or she is prime minister. In countries like Sri Lanka, it is almost impossible to question the party members in the executive and remain in the party. Read the rest of this entry »

Good Governance 4Perhaps the most controversial subject we have to deal with in trying to restore confidence in government is that of the violence and extra-judicial killings that have taken place.

Unfortunately dealing with this is complicated by the fact that there are in fact three different issues involved. Two of them have to do with the conflict period. The third issue is that of abductions and killings that had nothing to do with the war.

With regard to the conflict, we have to deal with two extreme positions which feed off each other. One is that government was justified in whatever it did, because we were dealing with ruthless terrorists and therefore the ordinary laws could not be respected. The opposite is that government used sledgehammers to crack nuts, and was overwhelmingly guilty of murder which include deliberate targeting of civilians and a range of paramilitary activities.

The truth lies in between, but government complicated matters by looking on the problem as part of a propaganda war, rather than one to be resolved by confidence building measures. So it lost the chance to make it clear that it fought a war that was essential, given the suffering the LTTE had caused to the whole country for so long. It also failed to show that the forces by and large respected International Humanitarian Law.

Far too late it started an inquiry process, and got the services of international experts. Earlier, instead of responding to the excessive attacks of the Darusman Report, it tried to take political advantage, a strategy that came a cropper at the last Presidential election.

The problem has now been transferred to this government, but sadly that too is not relying on truth, which is the best way forward. Thus it seems ambiguous about the work done by Sir Desmond de Silva and his team, even though it has in fact renewed his contract. It should therefore make use of what he has done to launch a robust defence of the way in which the war was conducted. Read the rest of this entry »

Good Governance - AccountabilityGood Governance demands Accountability, but there is little understanding of the various dimensions of this concept. The first and most obvious one is Financial Accountability, and one vital commitment of this government is to strengthen audit mechanisms.

But formal requirements alone are not sufficient. We must strengthen the powers of those agencies that can hold functionaries accountable on the strength of audit reports.

The first of these is Parliament, and that is why I have striven over the last couple of years to make sure that the Public Accounts Committee and the Committee on Public Enterprises are effective. A couple of weeks ago the Standing Orders Committee agreed to recommend to the House the suggestion I had put forward, that the reports of these committees shall be

‘laid before Parliament and sent to the Minister in charge of the subject of Finance who shall within one month respond to the Report and indicate which recommendations may be accepted with a time frame for implementation. Explanations will be provided with regard to recommendations which cannot be implemented with a description of what remedial action will be taken instead to deal with issues raised.

Following such a response, the Report shall be discussed by Parliament, and after amendments if appropriate shall be approved, whereupon the recommendations in such report shall be deemed to be recommendations to the Government which shall be responsible for implementing the same and reporting back to Parliament within a period of six months. The Speaker will ensure that such reports are furnished on time, and will raise any delays with the Head of the Executive.’

All this seems well and good. The Executive which spends money must listen to the Legislative power which authorizes expenditure and monitors it. As the Secretary General of Parliament noted, the Legislature should not tell the Executive what to do, and that is why we left it open for the Executive to explain why it cannot implement our recommendations. But, while we must be sympathetic to any difficulties it points out, we have the power to insist, and our recommendations are then mandatory – though again, if they find these impossible to implement, they can report accordingly.

The problem now, though, is that I do not know whether we will have the capacity in Parliament to ensure that these guidelines are followed. No one from the UNP was present at the meeting and it is doubtful that John Amaratunga, who has been the chief UNP representative at such meetings, can even understand what is needed. He was always genial when I pointed out the need for Standing Order Amendments, and agreed to my suggestions, but his incapacity to take anything further is not something for which one can hold him responsible, given the gifts with which God has endowed him.

Wijedasa Rapakasa is also it seems a member of the Committee, and he certainly can understand, but he had not attended any previous meetings. This time I was told he was abroad, and I hope he comes to the next meeting, but he may well be too busy, having one of the more important portfolios in government.

The SLFP leadership did not turn up either, though the party was represented by the Deputy Speaker who does at least understand the issues involved. Fortunately we also had Dinesh Gunawardena and Mr Sumanthiran, who are both very sharp, plus the highly principled Ajith Kumara, and the Deputy Chairman of Committees, who is also keen to learn. Sadly I do not think the Speaker is in a position to teach him. Read the rest of this entry »

Sinhala

Political Principles IIIExecutive Power

 

The word ‘executive’ means ‘doing’. The executive of a country is usually its cabinet of ministers. These ministers are responsible for the day-to-day business of government. Although we refer to a prime minister or a president who has executive power as the head of government, he or she is almost always part of a group of ministers known as the cabinet, which exercises executive power collectively. When executive decisions are made, they are presented as cabinet decisions, rather than the decisions of the president or the prime minister.

 

The cabinet consists of ministers (known as secretaries in a few countries like the United States) who run various government departments and decide what needs to be done in the various areas or ministries for which they are responsible. Major decisions however, or decisions concerning policy, are brought before the cabinet so that they can be taken collectively.

Prime minister means ‘first minister’. When the cabinet system of government developed, the prime minister was simply the chief among the advisers of the executive monarch. It was the monarch who appointed the cabinet, the term used to refer to the whole body of his advisers. As countries developed politically, the advisers, who were supposed to be representatives of the people, acquired greater decision-making power. In time, in democracies, their leader became more important than the monarch. So now, in many countries, the prime minister has greater decision-making powers than his colleagues in the cabinet.

In some countries such as the United States, an executive president is the head of government, and therefore the head of the cabinet. Since such a president has been elected direct by the people, he or she has greater powers in relation to the rest of the cabinet than a prime minister, who has been elected along with several others. Read the rest of this entry »

24thProductive day in Parliament, with the first reading of two amendments to the Constitution that I had proposed, seconded by Upeksha Swarnamali.The 24th, which is the more important I think, is about making Secretaries to Ministries Permanent, and restoring their appointment to the Public Service Commission. I hope that all those who are keen on independent commissions will accept that these will have no teeth if the most important appointments in the Public Service are left in the hands of the Executive.

 

The text in all three languages, as gazetted a couple of weeks back, is available at http://tiny.cc/19thAmendment

 

The other amendment, the 23rd, is to fulfil the pledge in the Presidential manifesto to introduce an electoral system that ensures individual representation for constituencies but makes the whole of Parliament proportionate to the will of the people. I cannot understand why we are making such a meal of this particular reform, since the text as gazetted indicates how simple it is to ensure this. The only question is the number of constituencies, and since the election Commissioner said that 125 would be hard to define, I have suggested that the first election under this system could be for 150 constituencies. He said that reducing the current number to this would not take him more than three months.

Read the rest of this entry »

19thAI was most disturbed that the proposed 19th amendment does not seem to take seriously the commitment in the President’s election manifesto to ensure the independence of the Public Service. Two dangerous provisions remain from the past.

The first is that Ministry Secretaries shall be appointed by the President (though, according to the amendment introduced in the Supreme Court, only on the advice of the Prime Minister). The second is that all Ministry Secretaries vacate office when a new government is formed.

Both these are contrary to practice in other countries with a Westminster style Cabinet system of government. Since this matter has been decided on without sufficient consultation, or understanding of the principles involved in ensuring that Public Servants serve the public rather than the Executive, I have proposed an amendment to the Constitution. This has now been gazetted I attach a copy of the Gazette of March 27th, and would be most grateful if you could raise the issue and promote support for this initiative.

The change from what used to be Permanent Secretaries was introduced when Sri Lanka had a Statist concept of government. But while governments that are elected are entitled to expect that Public Servants act in accordance with the policies of the government, this must also be in terms of law and regulations.

It is also important to ensure continuity, and help new ministers find their feet, by receiving briefs with regard to the policies and activities of the Ministry they are taking over. Simply establishing independent Commissions to recommend appointments will not help if the most senior members of the Public Service, and the Chief Accounting Officers of Ministries, are not appointed by the Commissions. The present draft 19th Amendment keeps them beholden to the government in power for their positions.

English

 

 

Sinhala

 

 

Tamil

 

Rajiva Wijesinha

April 2015
M T W T F S S
« Mar    
 12345
6789101112
13141516171819
20212223242526
27282930  
Follow

Get every new post delivered to your Inbox.

Join 312 other followers

%d bloggers like this: