Sri Lanka Rights Watch 64 – Deploying Resources more effectively

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.

Because of both the National Human Rights Action Plan, and Reconciliation work that involves meetings at distant Divisional Secretariats, over 50 in the last year, I have become deeply conscious of the gaps in our systems with regard to protection for Women and Children. Most obviously there is a woeful lack of coordination of the various agencies and personnel supposed to work in this area.

But equally worrying is the absence of such personnel in most places. This has been brought home to me more forcefully, following the suggestion of the Secretary to the Ministry of Child Development and Women’s Affaris to set up Women and Children’s Units in each Division. I now check on what human resources each Division have, and I find none that have officials in every area.

This is true of many fields. After the very productive discussion between the Secretary of the Children’s Ministry and the Secretary to the Ministry of Social Services – whom I had known in another incarnation as the courageous and efficient Government Agent in Mullaitivu and then Jaffna – I looked also for Social Services and Counselling and Welfare Officers, in addition to Women’s Development and Probation and Child Rights Protection and Early Childhood Development Officers. But more often than not these too are lacking – and the same goes for Sports Officers and Cultural Officers too.

In some places there had been Officers on probation, but they had left to take up places in the latest Graduate Recruitment Scheme government has begun. That absurdity made me realize how bizarre this scheme was, though I had already had inklings of the confusion caused in many officers by hundreds of these new recruits, for whom jobs had to be found.

I am at a loss to understand why government did not actually formulate a coherent human resources policy before it launched its latest graduate scheme. Given the urgent needs of the vulnerable in our society, it would have made sense to establish cadre positions in each Division for the various Departments that look after the vulnerable. Then, after developing job descriptions and prerequisites, they could have advertised for suitable people. If there were insufficient suitable people, they could have offered training courses, perhaps on the basis of loans that would be repayable when employment was obtained.

Reconciliation: Looking Forward 13 – Constitutional Irresponsibility,The UNP And The Parliamentary Council

I have noted previously that I think the 18th amendment is a vast improvement on the 17th. Interestingly, when I first began explaining my views on the 17th amendment, there was little comprehension amongst Sri Lankans about my fundamental objection, that it was inappropriate for an elected Head of Government who was also head of State to simply rubber stamp appointments recommended by another body, let alone a nominated one.

This was understood immediately however by the Canadian Senator who visited us in I think 2007 on behalf of the IPU. I suppose it could be argued that attention to process and constitutional consistency is unnecessary, and whatever works is acceptable, but I fear that such an approach leads to problems – as with our confusion of an Executive Presidency with a Westminster style Cabinet – and it is tragic that we continue to suffer the consequences without understanding the reasons.

I should add though that the 18th amendment has its flaws, just as the Local Government Elections Bill had. In both cases however there was such an improvement on what we had had before, that I did not think we should have allowed the perfect to be the enemy of the good.

What I did not anticipate was the sheer contempt with which the opposition would treat the Constitution as amended. I suppose this is not surprising from a party that voted so consistently to subvert the Constitution it had introduced, through the first and second and abortive third amendments, but it is surprising that no one has drawn attention to the irresponsibility with which the UNP has treated the provisions that provide some sort of check on the absolute power of the President to make appointments to important positions.

Full text of interview given by Prof Rajiva Wijesinha to Amanda Hodge, of the Australian, with regard to the latest International Crisis Group report on Sri Lanka. A short extract appeared in the Australian on 22nd February

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.

Destroying the President’s Defenders

Sri Lanka is full of conspiracy theories. There are many reasons for this, not least the fact that theorizing about conspiracies is a universal practice, and we in Sri Lanka are victims of this as well as practitioners.

Then there is the fact that conspiracy theories are fun. Since they necessarily assume that evidence must be shadowy, they allow those with vivid imaginations to pursue their pet agendas under the guise of creative thinking. And since the conspiracies one discovers are the responsibility of others, one can promote one’s own conspiratorial efforts in the belief that they are mere reactions.

However, we must also remember that even if we, like perhaps all other nations, are paranoid in considering our own interests, that does not mean that others are not out to get us – or, rather, all others, like ourselves, want to pursue their own interests, and do not mind if we or anyone else goes to the wall in the process. This is obvious on first principles, as Thucydides so succinctly put it over two thousand years ago. And as was the case when Thucydides wrote, all nations try to conceal their pursuit of self interest by claiming that they are acting on principle. Where this is obviously not the case, the claim is that the other breached principles first.

This is not necessarily hypocritical. As that great analyst noted, there are consummate hypocrites around, and unfortunately they tend to exercise disproportionate power. But actual leaders are more often than not the victims of their fantasies about their own morality. Thus everyone knows that Barack Obama has been as forceful as his predecessors in using any means he thinks necessary to pursue the interests of his country, and the rhetoric he uses has accordingly changed. But there seems nevertheless a sincerity about his pronouncements that suggests he thinks he is as idealistic as before.

About some of Obama’s advisers I have my doubts. But I see no reason to believe that they are acting against American interests. In Sri Lanka, sadly, the same cannot be said about the President’s advisers. What some of them have managed to do in the last couple of years is to actually strip the President of his defences so that day by day he becomes more vulnerable to attacks.

The Structure of Government, Cooperation of Government Machinery and the Role of NGOs – 2

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

In the first section of this talk I spoke about the confusion in Sri Lanka between the Executive and the Legislature. Flowing from a system in which expansion of the Executive is seen as the easiest way of ensuring a Parliamentary majority, we have overlapping Ministries. We have however failed to institutionalize systems of coordination, both within the executive branch and also within Parliament which is supposed to exercise oversight and contribute to policy formulation.

We have also failed to promote coordination of activities between the different levels of government, or between different branches at the same level. As it is, we have a very confusing Constitution that entrusts several responsibilities to Provincial administrations but then gives authority also to the Central government. This is because we have what is termed a Concurrent List, which is nothing but concurrent because in the event of disagreement the will of the Central government prevails; and dual responsibilities at provincial and local level. It is also because the Centre is given responsibility for National Policy on all subjects, but we have failed to conceptualize this clearly and to spell it out in legislation.

I have become more acutely aware of the problem in my role as Convenor of the Task Force meant to expedite implementation of the National Human Rights Action Plan. It is important to make policy changes in accordance with the plan, but ensuring acceptance of these and relevant action at all levels will not be easy. In particular, while we should not duplicate action, and should leave this to local agencies which are best equipped to cover all geographical areas, we must ensure monitoring, and that is best done through a Central agency to ensure uniformity. However our legal officials have still not entrenched a system of legislation that makes clear the primacy of National Policy and the obligation of the Central government to ensure its implementation, while leaving implementation to other levels of government. I should add that they have also completely failed to ensure conformity with the 13th amendment in much legislation that has entered the statute books in the last two decades, while this has also been ignored in various administrative decisions taken by Central government.

The problem is compounded by the fact that the Province, while it should remain the unit that exercises responsibility for both regulations with regard to devolved subjects and for executive action in those areas, is too large for the consultation and accountability that make devolution meaningful. We should therefore be building up local government institutions, but at present these are not given sufficient authority, while they suffer staff shortages that prevent effective action in many vital areas.

To illustrate the confusion we suffer from, let me consider the care of children, which I have been much concerned with recently. Fortunately we now have a Secretary at the Ministry who can conceptualize coherently, and who understands the problems and is also capable of developing systems of coordination which will enhance the services on offer. But whether he can cut through the accumulation of entities in the field is a question.

Ideas for Constitutional Reform 3 – Establishment of Consultative Committees to formulate policy and monitor executive action

I wrote last week about the need to have a Parliament in which members could fulfil their legislative role more effectively. But, in addition to changes in the electoral system, we need for this purpose to ensure that Parliamentarians have a better understanding of that role.

Essentially Parliament has two principal functions. One is with regard to laws, inasmuch as it is Parliament that formulates and passed laws. But, since laws pertain to particular functions, which are fulfilled by the Executive Branch, it is necessary for Parliamentarians to understand what those functions are.

Sadly the principal contact that Parliamentary practice in Sri Lanka now provides is used to discuss particular issues relating to constituencies, and to request resources for constituency purposes. There is hardly any discussion of policy. In any case the manner in which Parliamentarians are allocated to Committees, and the large numbers involved (many of whom do not attend, as I have found in waiting for a quorum to be made up), mean that policy discussions are rare.

The large number of Ministries we have – some of which have hardly held Consultative Committee meetings – mean that policy making is complicated, since so many different agencies are involved. The absurdity of pretending that Parliament can actually monitor the work of so many Ministries has been made manifest by the manner in which this year, twice the number of Ministries as last year have been put into a job lot for Committee Stage discussion during the Budget debate.

Reconciliation 22– Chief Justices, War Crimes and International Interventions

 I was told recently by a diplomat that, amongst the worries in connection with the appointment of Mohan Pieris as Chief Justice, was the feeling that he had been put there to subvert any judicial process that might be implemented with regard to War Crimes. This struck me as ridiculous.

But it was also indicative of the deep distrust and lack of logic that bedevil our relations with the world. It is based on an obsession with War Crimes that is a creation of two equally pernicious initiatives. The first is the determination of the LTTE rump to avenge the destruction of their hero and the terrorist separatist agenda. The second is the cynical efforts of some Western politicians to use the charge to exert pressure on us.

As the LLRC report indicates, and all actual evidence suggests, if there were abuses, they were committed by individuals, and should and would be dealt with by military courts. Though it is claimed that we have delayed unduly in this regard, that is absurd, and those who complain know this perfectly well, given how long it has taken the British and the Americans to deal with abuses by their personnel. Of course our failure to act with regard to what happened in Trincomalee is another question, and our delay there is unacceptable, but that had nothing to do with the war, and did not involve the military.

Where we are at fault  in not publicizing what we are doing. We should learn from what the Americans and the British did, and perhaps even emulate them in acquitting everyone except one suitable scapegoat – and the Americans avoided doing even that in the celebrated case of the team that cut off the thumbs of their victims.

Reconciliation: Looking Forward 12 – Constitutional Anomalies

In the whole sorry impeachment saga, the UNP seems to have done the impossible and managed to keep everyone happy. Though some other opposition parties are making valiant attempts to criticize them, since the criticisms are not based on clear arguments, similar generalities on the part of UNP officials will allow them to emerge unscathed.

This is a pity, because proper analysis of their role will also suggest what they might do to make things better in the future. Firstly, they should acknowledge the absurdity of the Standing Order that they put in place hurriedly in 1984, mainly it seems to keep Neville Samarakoon quiet. While they have granted that this is hopelessly inadequate and requires further elaboration, the efforts of some to condemn the Standing Order were stymied, on the grounds that that would amount to criticism of their sacred cow, namely J R Jayewardene’s Constitution and its appendages.

Since the UNP leader affirmed this principle, and also refrained from speaking on the Impeachment Resolution, he continues to convince decision makers in government that he is the best possible Opposition Leader for the Government. This is myopic, because they think only in terms of popularity within Sri Lanka. Whilst certainly Ranil Wickremesinghe would fare disastrously in any electoral competition with the President, the same applies with regard to any other possible leader of the Opposition.

Sri Lanka Rights Watch 63 – Transparency with regard to Law

The importance of recent legislation to change the electoral system for local government elections was such that it clearly made sense on all sides to refrain from trying to improve the content of the Bill, but instead to concentrate on making it law. The government has after all agreed to further amendments by mutual consent later on, including increasing the proportion of those to be elected on a list basis to 40%.

I was told that one reason for not introducing that amendment at the Committee stage was that the Legal Draughtsman’s Department had said that would be difficult. I am not sure if this was correct, but if so it indicates how useless that Department has become. It was because of flaws in the draft last year that consideration of the Bill was postponed, and I very much feared then that opponents of the changes would prevail and prevent the Bill being brought forward again.

After all, though the whole country wanted change in the perverse system of preferences that J R Jayewardene introduced, the only people who had benefited from it, namely legislators elected under that system, were those who had to make the changes, and one cannot expect modern day turkeys, unlike those in the 1977 Parliament who allowed Jayewardene to destroy the power of Parliament, to vote for Christmas.

The Bill as it stands makes clear the continuing detachment from reality of the Draughtsman’s Department – a factor that I think is understood by the new Legal Draughtsman, who saw immediately the absurdity of current practice, though I gather she will not be at the helm long enough to ensure change.

Ideas for Constitutional Reform 2 – Limitations on the power of Parliament

I have now served two and a half years in Parliament. This would have been half the term in the old days before the United Front government of 1970 extended its own term by two years, and added one year to all future terms. This began the rot of Parliament expanding its own powers and privileges, which the Jayewardene government of 1977 took even further, extending its term to over 11 long and woeful years.

These terms, it should be noted, are not fixed, and the government in power has the right to have an election when it wants. Naturally it does this when it thinks conditions are most favourable. And in Sri Lanka the situation is made worse by the fact that we have two sets of elections to decide on who is going to govern us, namely a Presidential election as well as a Parliamentary one. Naturally both are fixed in terms of advantages to the incumbent, with the added benefit of having one or other of the executive authorities continuing in power during the election.

This situation is unusual, since elsewhere in the world where there is an Executive Presidential system, terms are fixed. This was the case in Sri Lanka when the system was introduced, but J R Jayewardene changed it for purely selfish motives, to ensure the perpetuation of his power.

He also changed the electoral system he had introduced for similar selfish motives, when he realized that a proportional representation system without a preference vote meant less effort on the part of those low down on the list, with no hope of being elected. The system of preferences he introduced has been the single most destructive feature of Sri Lankan politics over the last quarter of a century.