Appointments and Removals:
The Chief Justice, the President of the Court of Appeal and every other Judge, of the Supreme Court and Court of Appeal shall be appointed by the President SUBJECT TO APPROVAL BY THE SENATE
One of the most worrying incidents that took place during President Rajapaksa’s second Presidency had been the impeachment of the Chief Justice. She had not been the best choice for the position and the Opposition had raised questions about the appointment and her conduct, after the appointment was made. But the impeachment was badly handled, and in terms of bizarre provisions in the relevant instruments, the Constitution and the Standing Orders of Parliament. The former simply specified that impeachment should be by procedures laid down by Standing Orders, and the relevant Standing Orders had been hastily formulated when President Jayewardene wanted to put pressure on the Chief Justice he had appointed, one of his private lawyers, who had nevertheless begun to speak out against government excesses.
The leader of the Opposition was to grant that only half the required Standing Order had been set up, and since that had worked and the then Chief Justice had been subdued, the other half had been forgotten. So the provision remained that Parliament appointed a Select Committee to investigate, which involved it acting as both prosecution and judge. In the intervening thirty years it had often been pointed out that these provisions were unjust, and commitments had been made that they should be changed, but nothing had been done about this.
The Select Committee appointed by Parliament made matters worse by behaving in boorish fashion and giving the Chief Justice no time to formulate a defence. It also gave her no notice of witnesses it proposed to call, and summoned them after she had withdrawn, as had done also the opposition members of the Committee. Rulings by the Courts that the proceedings should be stayed were ignored, and the motion was duly carried, with only a very few members on the government side refusing to vote for the motion.
Though government also realized how unfair the system was, and some members pledged to change it, even while arguing that what had been done was perfectly constitutional and so could not have been avoided, all this was forgotten after the Chief Justice was removed, and Mohan Pieris installed in her place. The Speaker showed his contempt for, or perhaps just his ignorance of, Standing Orders in failing to put my proposals to amend them to Parliament. The Standing Orders themselves mandated that any such proposal to amend should be put to the House and, after being seconded, be referred to the Committee on Standing Orders, but instead the Speaker said he would refer them direct to the Committee. Since he had avoided making clear the mandate Parliament would have bestowed, he failed to summon the Committee, and got away with this for over a year. Before that, despite repeated requests, though sadly only from me, he had not summoned the Committee for three years.
I regret that I was the only Member of that Committee to make repeated requests that the Committee be reconvened. Unfortunately the Opposition Chief Whip who was on the Committee had no understanding of the importance of Standing Orders, while the TNA Representative, Mr Sumanthiran, who had worked assiduously with me to redraft about a quarter of the whole in the first three months of the new Parliament, kept quiet when meetings were suddenly stopped, perhaps because we had been too efficient. Obviously it made sense for the TNA not to bother too much to increase the effectiveness of Parliament, since that might have detracted from their main contention, that Parliament was incapable of serving the interests of the Tamil people.
The Senanayake proposal with regard to impeachment was very simple, namely that
The Senate has the sole power to try impeachment.
This moved decision making to a more sober body in which the opposition would have greater weight, while allowing the House, where the impeachment resolution had been brought, to prepare the prosecution. This in fact is the procedure in the Philippines, which had been cited by government to suggest that it was perfectly acceptable for Parliament to bring an impeachment motion and then sit in judgment on this. What was not mentioned was that the Philippine legislature was bicameral, with very distinct responsibilities for each House.
The other area the Senanayake proposals stressed was Local Government. This was a major lacuna in the Constitution, perhaps understandable in that it had been drafted, and then amended to provide for Provincial Councils, in the days when Local Government was not considered statutorily important. This had changed, in India for instance with the creation of Panchayats in the nineties. Thus it was likely that India would have no objection to a similar change in Sri Lanka to bring government closer to the people, and in fact the TNA had made it clear that they would have no objection to such a move, provided this did not take away from the existing powers of Provincial Councils. Vasantha accordingly proposed –
1. Nature of the power sharing unit:
The Centre shall share powers with the Provinces and Local Government Bodies, with a Provincial Council established in each province and Local Government Bodies in each division.
Divisions were the smallest unit of administration at which decisions could be made, a process strengthened indeed by a Transfer of Powers Act Premadasa had introduced in the nineties to devolve administrative powers with regard to many day to day activities from the District to the Division. To ensure that administrative and political powers were coterminous, Vasantha specified with regard to the various elected Local Government bodies that
Pradeshiya Sabhas and Urban Councils shall be for one division each, Municipal Councils can have one or more divisions.
This was often the case, but not necessarily so, and it seemed necessary to establish a system that would facilitate coordination. For this purpose the proposals introduced in the Constitution, statutorily, the Coordinating Committees that at present are informal, and are avoided by some Members of Parliament, who chair them and therefore permit meetings only at their own convenience. Instead the proposals specified –
Divisional Coordinating Committees
Divisional Coordinating Committee shall be established by the constitution for every administrative division as coordination mechanisms between the Centre, Provinces and Local Government and the administration, with the participation of;
a. Members of the House of Representatives representing the Division (Government + Opposition)
b. Member of the Provincial Council who represents the respective Division
c. Chairman of the Local Government authority and the Leader of Opposition of that authority
d. Divisional Secretary and the District Secretary
The proposals indeed went further in entrenching consultation mechanisms. Though the President had made mention of these in his manifesto, he had done nothing to establish an effective mechanism. When I spoke to him about the strengthening of Local Government he had promised, he made it clear that he left all this now to Basil, and since Basil was perhaps the worst example in his entourage of what he diagnosed but did nothing about, the tendency to cling to all powers and decision making, it was clear that nothing would move unless the question was brought into the public and political discourse.
The Senanayake proposals then made it clear that even the lower level at which the public interacted with the administration, the GN Division which encompassed one or more villages, should be considered an integral part of the governmental process, with entrenched systems of consultation and reporting –
Local authorities shall be recognised by the constitution as a tier of government and shall be given areas of responsibility as specified in the constitution.
Local Government bodies shall have constitutionally entrenched powers within each province. Every Grama Niladhari Division shall set up Grama Sabhas as consultative mechanisms with regard to issues such as development and social services. The deliberations of such Sabhas must be reported to elected and appointed Officials of such divisions who shall report them to the Local Government Authority and the Divisional Secretariat in writing. Such Officials shall take such reports into consideration at Administrative Coordinating Committees and the Divisional Coordinating Committees and report back to Grama Sabhas in writing.
The proposals also made clear the importance of coordination, in asserting the need for the seniormost appointed official in each District as well as in each Division to work with both central government and the Provincial governments –
Provincial Chief Secretary shall implement administrative functions in the provincial list via district and divisional secretariat.
Central Government shall implement administrative functions in the reserved list, through the District and Divisional Secretaries
The proposals also did away with the Concurrent List which caused much confusion, because Provinces were largely unwilling to exercise the powers they had in the areas on this list. Though it is sad that they were not willing to take initiatives in these areas, which included university education, it was also understandable that they did not want to be crushed by a resentful Central Government, inasmuch as the Constitution said that, in the event of conflict with regard to legislation in these areas, the will of the Central Government should prevail.
There was no provision at all for consultation to reach a compromise. That may have been the ideal solution for a few matters but, given the powers it had with regard to National Policy, there was no reason for the Central Government not to allow most of the concurrent list to come under the purview of the Provinces or Local Government bodies. While leaving decisions about details to be sorted out, the proposals simply asserted the principle that –
Concurrent list of the present constitution to be done away with as far as possible and the powers will be distributed between the Province, the Centre and Local Government
With such comprehensive but simple proposals at hand, it is a pity the President has not thought seriously of reform. Recent events however suggest that he has realized he simply cannot go on as was the case in the last four years. The attempt to avoid an internal inquiry, or to do a cover job with neither transparency nor credibility, has collapsed, with the appointment of international advisers to a Commission with a mandate to look into possible war crimes. Gratuitous insults to India have been reined in, with the Ministry of Defence apologizing for carrying yet another article by a chauvinist writer who is seen as a heroine for hitting out at everyone in sight with no understanding apparently that Sri Lanka is a multi-ethnic society and the President must work on behalf of the nation as a whole.
The lack of productive investment has become a worry, as has the chaos in the tourism industry, with no coherent planning to broaden the range of services on offer. The massive amounts allocated to government members of Parliament goes hand in hand with difficulties about paying salaries and pensions. And the last Provincial Council election showed that, though the President is still the most popular politician in the country, the magic is waning.
Given his skills and the range of affection he commands, he would be the best proponent of reforms. But he needs to act soon, if the unique opportunity he created through the defeat of the LTTE is not to be squandered.