Sri Lanka Rights Watch 61 – The need for precision

15 Oct 2012

At the last meeting of the Inter-Ministerial Committee on implementation of the National Human Rights Action Plan, there was much emphasis on the forthcoming Universal Periodic Review which Sri Lanka will undergo in Geneva in November. I would have preferred direct concentration on the Action Plan, since I believe we should be committed to progress in this area for our own people, rather than because there is an External Review. I am pleased that Mahinda Samarasinghe is in charge of the delegation, notwithstanding the various leaks from the Ministry of External Affairs to suggest that only officials would be on the delegation, and I was glad that he was taking a forthright approach to the process. However I continue to believe that we are not being practical enough in our pursuit of Rights for our people, and we really must ensure clearcut responsibilities and reporting mechanisms.

After all sincerity – which Minister Samarasinghe has in abundance, along with his principal aide in the process, the former Attorney General Mohan Pieris – is not enough, as compared to statistics. I recall some months back the withering reply of Ambassador Patricia Butenis, when she was complaining that Sri Lanka was coming out with various contradictory positions about the LLRC, and I told her that she should not take seriously what others said, but should concentrate on the official position as expressed by the Ministry of External Affairs and by Mr Pieris. Her comment was that they no longer had credibility in her eyes.

I have referred previously to how the Americans, by their own disparate approaches, contributed to the erosion of trust that we have witnessed in recent years, but for the moment I shall concentrate on what we need to do, not just to make our commitment clear, but to ensure too that that commitment leads to positive results. In simple terms, the reason for collecting and collating statistics is not only to affirm the good work that has been done, but also to register for ourselves what more needs to be done, and to plan to do it expeditiously.

Reconciliation: Looking Forward 9 – Standing Orders

Given the plethora of worries about the financial integrity of the Chief Justice, it may seem redundant to demand higher standards also from the Select Committee looking into her case. But the Select Committee itself provided the principal reason for circumspection when it declared that ‘The office of the Chief Justice is a position which demands maximum confidence of the public. A moral conduct of an exceptional degree is expected from a Chief Justice unlike from an average citizen. Your Committee observes that any discredit to such conduct leads to a decrease in the confidence of the public towards a holder of such office’.

That being the case, it must be obvious that Parliament, which is, or should be, an even more exalted entity, must also have the confidence of the public. It must therefore be even more careful not to seem to be biased in its conduct or hasty in its decisions.

Given that the misdemanours the Chief Justice is alleged to have committed would, if proved, constitute criminal conduct, they must be investigated in accordance with criminal procedures. This includes presenting evidence systematically and allowing adequate opportunities for it to be challenged. If that is not done, and clearly seen to be done, public confidence in Parliament would be eroded.

Reconciliation 21– The Empire Strikes Back

Last week the office of the UN High Commissioner for Human Rights, Navanetham Pillay, issued a critical statement on Sri Lanka. Unusually for the Ministry of External Affairs, there was a forceful rebuttal of this, written by the Acting Secretary, Ms Kshenuka Seneviratne.

I have been a strong proponent of prompt rebuttals of unfair criticism, but the Ministry had seemed to disapprove of this position. Often through former diplomats, as well as journalists connected to Ministry personnel, it claimed that Dayan Jayatilleka and I had engaged in megaphone diplomacy which had ruined Sri Lanka – even though it was under Dr Jayatilleka’s leadership that Sri Lanka had achieved its most substantial diplomatic victory in years.

That approach was denigrated and, ever since Ms Seneviratne replaced Dr Dayan Jayatilleka as our Representative in Geneva, the impression created was that criticism had to be taken lying down, and obsequiousness would solve all our problems. Though Ms Seneviratne’s successor, Tamara Kunanayakam, tried to defend the country forcefully, this was not to the taste of the Ministry and they came down on her like a ton of bricks.

This cannot have been a pleasant experience when ladies are involved. But seeing the volte face that has now occurred, Tamara and Dayan would doubtless be laughing, were they not deeply patriotic. As it is, they must be wondering what will hit the country next, given that Dayan’s and Tamara’s strategy of building up international support was thrown aside and we put all our eggs in one basket, described by one of the more aggressive of their critics as Sri Lanka’s ‘traditional liberal democratic alliance base’, by which was meant the West.

Reconciliation 18 – Recommendations to promote Reconciliation with regard to Conflict Related Problems

Though the Reconciliation meetings I attended were confined to Divisional Secretariats in the North and East, the concerns looked at previously were general. In addition there were concerns relating to the conflict situation, in some instances affecting Sinhala communities too.

Chief amongst these were problems about land title. The LLRC Action Plan highlights the importance of dealing with these, reflecting the anxiety of all communities in this regard.

Another area of concern was livelihoods. This was of particular concern to Tamil communities in the North, reflecting the deprivation many suffered during the conflict. This means they have difficulty taking advantage of the opportunities created by the impressive programme of infrastructural development development government has undertaken.

Third is the problem of psycho-social support, which is minimal in the North. The traumas of war are compounded by uncertainties about those whose fate is not known for certain. In addition individuals of different ages in single parent families are also affected by economic and social factors.

Finally, while the commitment of the government to multilingualism is clear, putting this into practice has proved difficult because of a lack of personnel with bilingual and trilingual capacity, while translation skills are in extremely short supply. Teaching of the second language in schools is rare because there are insufficient teachers, and the Education Ministry is not in a position to increase the supply, even were the urgency understood.

Ceylon Today – “No disciplinary action against me” – Rajiva

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?

Yes.

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.

http://www.ceylontoday.lk/59-22817-news-detail-no-disciplinary-action-against-me-rajiva.html

Sri Lanka Rights Watch 60 – Bringing government closer to the people

The National Action Plan for the Protection and Promotion of Human Rights 2011 – 2016 ( sinhala & tamil) as well as the full series of  Sri Lanka Rights Watch are available at the Peace & Reconciliation Website.

I wrote a couple of weeks back about the Participatory Budgeting initiative that is currently being conducted in selected local government bodies, after hearing about it at the South Asia Economic Summit in Islamabad. It seemed most timely, because sadly we have no formal system of training those elected to local government bodies so that they can plan for their areas and implement projects effectively. As a result, one of the most important Rights for countries such as ours, the Right to Development, will be ignored, for that requires active participation by citizens in decision making as well as transparency and accountability.

Some of those elected to office do of course manage to serve their people well, but given the electoral system we have had for decades now, and the very different skills required to succeed through this, we must recognize that capacity has to be built up. Having spent much time recently in Divisional Secretariats, and seen how distant people feel from planning and administration, I was delighted that an initiative to promote participation, and consultation and accountability, had been undertaken, and with what seems to have been remarkable success in many areas in which it had been piloted.

Following on that, I was surprised and pleased to find yet another initiative in this regard, namely a project conducted by the Marga Institute entitled “Building Media and Civil Society Capacities for Budget Transparency.” It has been conducted in Batticaloa, with the full cooperation of the Mayoress and the Municipal Council. Though it was understandable that media and civil society representatives felt that there was inadequate consultation and transparency, a highlight of the initial survey was the view of senior officials, 92% of whom ‘agreed that participation of the citizens in the preparation of the MC budget would enable them to take care of their needs more effectively.  The reasons given were:

• As the revenue comes from the citizens their participation is necessary.

• If the expenditure is decided in consultation with the citizens they will pay their taxes regularly.

• Certain projects can be implemented without expenditure through the participation of the people with free labour.’

Reconciliation: Looking Forward 8 – Rules to prevent judicial and other abuses

Problems connected with the attempted impeachment of the Chief Justice require solutions. I believe that impeaching the Chief Justice is no solution to anything, and will in fact lead us to forget the actual problems.

In suggesting the following practical solutions to the problems, I realize I am probably wasting my time, since we have developed a culture of addressing problems with sledgehammers designed for other uses. We generally land it on our own toes as well as the toes of those connected peripherally with the problem, instead of the people or the procedures that are the root cause of those problems.

Thus the United Nations as a whole is attacked for the Darusman Report, when they should have been our most trusted allies in refuting the propaganda of those who pushed the Secretary General into such a selective analysis. Tamara Kunanayagam gets dismissed for the Geneva Disaster, and those who contributed to it are permitted with impunity to deceive the President about leading lights in India as well as in the Sri Lankan Freedom Party, which should be the President’s closest allies in fulfilling his developmental agenda.

I have no doubt then that the same propagandists who accused Dayan Jayatilleka and me of precipitating the crisis in Geneva will claim that the solutions I propose are based purely on personal ambition. But that will be a small price to pay if there is greater awareness of the need for proper procedures as well as clear guidelines for the conduct of public officials.

The Structure of Government, Cooperation of Government Machinery and the Role of NGOs – 1

Text of lecture at a workshop at the Kotelawala Defence University – 20 January 2013

I plan in the three hours of this workshop to cover a lot of ground, which I hope will lead to much discussion, and to some understanding of the principles of government, and actual practice in Sri Lanka. This will require being direct, but the criticisms I make will I hope provoke thought, and encourage efforts at reforms that are essential.

Of all countries that have a long democratic tradition, Sri Lanka has perhaps the most dysfunctional structure of government. If you look at constitutional dispensations elsewhere, there are essentially two. The first, springing from Britain, and known as the Westminster model, combines the Executive and the Legislature. All Ministers come from Parliament, and report to it directly.

The second is based on the doctrine of Separation of Powers, and was first put into practice in the United States of America. The Executive is entirely separate there from the Legislature. A directly appointed President selects a Cabinet to run the various Departments of Government. Parliamentarians, in addition to passing laws, also however play a role with regard to the executive, in that they are in charge of the budget that finances the work of the Executive. They are also meant to monitor its work through the financial controls they exercise, and to contribute to policy through Committees.

Our Constitution is a hybrid of these two systems. Though it is claimed that it is similar to the French, where there is a Prime Minister in addition to a President, the differences are immense. Though the President in France must appoint a Prime Minister in terms of command of a majority in Parliament, he can appoint anyone from outside Parliament to this post, and to any executive office. Anyone who comes from Parliament, including the Prime Minister, must give up his Parliamentary position before becoming part of the Executive.

Thus the Executive concentrates on getting things done, without the demands of legislation or constituency requirements. And it has no role to play in oversight. Correspondingly, at Parliament can exercise its oversight function without being dominated by the Executive branch. In Sri Lanka all aspects of Parliament are controlled by Ministers. They chair all Committees, whereas even in Britain, though members of the Cabinet are obviously more equal than others, Committees are left to backbenchers.

Salem News – Special Feature: A Spark of Unity for Sri Lanka?

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

Tim King:
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.

Response:
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.

Reconciliation 17 – Recommendations of structural changes to promote Reconciliation

On the basis of consultations undertaken over the year as Adviser on Reconciliation to the President, I have submitted a report, with several recommendations. One set deals with problems raised at Divisional meetings. I give here the preamble, and the actual recommendations –

Much dissatisfaction is created by the sense that government is distant, and decisions are made without consideration of local wishes and needs. Explaining government decisions, and why delays are inevitable even though planning is based on a commitment to equitable development, often relieves feelings.

A second problem is resentment of perceived corruption. Enhancing accountability, and providing opportunities to discuss expenditure, with concentration on outcomes and value for money, would reduce resentments.

Confusion is also caused by overlapping areas of responsibility. Though the Divisional Secretariat was intended to be the primary unit of administration, functions impacting strongly on people are based on different areas of responsibility. These include the police, education and health. This makes coordination difficult.

Recommendations

1. Strengthen Local Government Institutions and give them full responsibility for administration of functions closely affecting the daily lives of people. These include education and vocational training, health and sanitation, local roads and bridges and transport, water supply and drainage and waste management, markets and agricultural extension work.
2. While policies in these areas should remain the preserve of the Central Government, consultation procedures should be entrenched. Draft legislation for local government contains provisions for consultation, but these could go further. Consultation should be of the grass roots, with mechanisms to convey ideas from Grama Niladhari level, and obtain responses. When these are negative, which will often be the case, alternative remedies for problems posed should be offered, with a time frame.