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In our discussions about the 13th Amendment, one objection suggested with regard to having Members of Parliament assessing those to be appointed to decision making positions was that they might not have time for the task. The point was politely put, on the grounds that Parliamentarians had other tasks to occupy their time, but underlying it also was the idea that they might not have the required expertise. For this reason it was suggested that they should have advisers for the purpose.
I could understand this, and that is why, in the amendment I proposed, I had an Advisory Committee. But given the standard constitutional assumption that restrictions on the discretion of the Executive should be through elected representatives of the people, I was careful to provide that that be elected by Parliament. I specified the Single Transferable Vote System which would ensure representation of a range of interests. I have been told that this would be difficult to understand, but it should be noted that this was the system in use for the elected members of the Senate in the old days, and it would be sad indeed to accept that today’s Parliamentarians would not be up to using such a system.
But, without being invidious, at the very least we can accept that, given the vast electorates they have to cover, MPs will not generally be able to fulfil all the responsibilities required of them. Given the talents and resources they have to possess or acquire in order to win election on the current mad preferential system, obviously they will not be in possession generally of the talents that are required of Parliamentarians in most parts of the world. Sadly, given the manner in which Parliament has been devalued in the last quarter of a century, there is no incentive either to acquire such capabilities. The type of training provided to Parliamentarians in the old days, when my father as Secretary General actually explained what was expected of them, has been ignored for years, given the J R Jayewardene tendency to see Parliamentarians simply as lobby fodder, kept in line through sticks and carrots.
All that is yet another argument to expedite Electoral Reform, since allowing MPs to concentrate on particular electorates will free up time and energy to actually fulfil their legislative functions. And given that each party will have to select just one individual for each constituency, they will necessarily have to engage in a thoughtful selection process, which is more likely to produce candidates with a range of skills and abilities. Parties will also be able to pick individuals of distinction for what they would regard as safe seats, since there will be no danger of what happened for instance in Kandy at the last election when Sarath Amunugama, arguably the best candidate the SLFP had in terms of intellectual and administrative competence, nearly failed to win election. And actual defeat has occurred, as we know, to other capable people such as Karunasena Kodituwakku and Milinda Moragoda. Read the rest of this entry »
The courts and other bodies described above function in order to take decisions according to the law. To advise them about such decisions, or rather to present arguments on behalf of those seeking decisions, there are professional legal practitioners known as lawyers. Lawyers can represent citizens on both sides of a civil dispute. They can also represent citizens against the government in matters of criminal or constitutional law. They may also appear before arbitration bodies and other tribunals. In addition, lawyers assist in the preparation of legal documents, including contracts, property transfers and wills. In theory, such arrangements between parties do not require lawyers. But it is advisable to make use of their expertise to ensure that all legal formalities are observed. This should prevent future legal disputes, though as we know such precautions may not always be successful.
In Sri Lanka we also run the risk of lawyers not always performing their tasks with efficiency and / or honesty. We do not have effective systems of regulation with regard to legal practitioners. I have suggested to the new Minister of Justice that he consider some of the points made by Nagananda Kodituwakku, one of the best public interest lawyers we have. But sadly I have not yet had a response, and I fear that we will not, despite the commitment of the government to reform, deal with what is a major problem for citizens, namely the fact that they cannot always rely on lawyers.
Mr Kodituwakku notes that ‘at present there is no authority to regulate the legal profession in this country, leading to a lot of abuses and victimization of innocent litigants. In leading democracies like in the UK, there is a mechanism in place to protect the citizens from unscrupulous lawyers. It is noted that in the UK a large number of lawyers found guilty for various abuses by the Regulatory Authority are being either disenrolled, suspended or imposed (with) compensation orders.
The Regulatory Authority for lawyers in the UK is empowered with wide powers, which include searching premises, seizing of records, sealing of offices and prosecuting all unscrupulous lawyers against whom prima facie cases are established.’
It would be useful then in Sri Lanka too to protect the citizen and to instill discipline in the profession by establishing through a law a similar body with wide ranging powers. Amongst the provisions that should be introduced to safeguard the public, he suggests the following – Read the rest of this entry »
We have looked thus far at Parliament, the legislative branch of government, which is supposed to pass laws and also monitor the work of the executive. Then we looked at the executive, the active functioning branch of government, and considered the various duties it should perform,
Third we should consider the judicial branch of government, which was considered the only other one at the time the theory of the Separation of Powers was enunciated with regard to government, There are I believe other elements that the public also needs to ensure its security, from society in general as well as an over powerful government. But there is no doubt that the judiciary is the most important restraint on those who would violate the rights and freedom of the people, and we should therefore look at it in some detail.
Types of law
As we have noted previously, one of the most important functions of government is ensuring the security of its people. When we think of security, it is defence that first springs to mind—the work of the security forces in dealing with external threats. But what is more important in the day-to-day lives of ordinary people is internal security, namely ensuring that law and order is maintained.
Basic concerns in this respect can be seen in the commandments issued by religions, even before codes of law were developed. All religions, for instance, prohibit murder and robbery. Even though such actions are perpetrated by some individuals against others, it is recognised that they have a bearing on society as a whole. Such actions are termed criminal acts, and dealing with them is seen in most societies as the direct responsibility of the government. Unless stern action public action is taken in such cases, the security of the entire society is threatened.
When a case is brought under criminal law then, it is the government that prepares the case and prosecutes the accused. Since these are serious issues, and punishment is severe, the guilt of the accused should be clearly established. It is necessary, therefore, in such cases that the prosecution proves its case beyond reasonable doubt to avoid punishment of the innocent. Otherwise, the accused is acquitted.
Other offences, though defined and dealt with by the law, are seen as affecting individuals alone. So cases such as disputes about land or contracts, or those involving personal relations such as divorce, come under what is termed civil law. In such cases, one person makes a complaint and someone else must respond. They are decided on what is termed a balance of probabilities since a decision has to be reached in favour of one side or the other and the plaintiff and the respondent have to be treated equally. So even a slight inclination to one side of the balance is sufficient for a ruling in favour of that side.
There is also a third type of law which has gained importance in recent years. This is constitutional law, which comes into play when the government is seen as violating the rules according to which it must govern. One aspect of this law is seen in operation when the government wishes to introduce new laws or change the constitution. The courts should decide whether such new laws or changes are in accordance with the existing law. Sometimes governments wish on their own to verify whether their proposed actions are legal. Citizens or groups of citizens can also petition the courts to seek clarification or present arguments alleging that particular bills are unconstitutional, and the government may respond to these petitions. Read the rest of this entry »
The manner in which the President’s manifesto has been by and large ignored by those entrusted with implementing it is quite shocking. The collegiality pledged with regard to the Cabinet and the National Advisory Council was flouted, and nothing was done about the pledge to strengthen Parliament through amendment of Standing Orders.
These were pledged for January and could have easily been accomplished, given that they were not contentious. But in the rush to interpret the manifesto as being only about abolishing the Presidency and handing power to the Prime Minister – which Jayampathy Wickremaratne had revealed was what he wanted done within a day – the actual spirit of the reforms, which should have been about limiting concentration of power, was treated with contempt.
The other main pledge for January that was ignored was the introduction of a Code of Conduct for politicians. Such a code is indeed necessary for all those in public office, and one of the first things I did when I was a Minister was to ask the UGC for a draft. I got one, but that concentrated on their professional duties, whereas the spirit of our campaign demanded a moral aspect too – for instance precluding those in authority being responsible for the appointments of immediate family, or bestowing benefits upon them. This had been a major problem all round under the last government, not just in the university sector, but also in general. And obviously the present government suffers from what I would term this amoral tendency, if what happened with regard to the Central Bank bonds is anything to go by.
No one else seemed to be concerned about this matter. Wijeyadasa Rajapaksa has completely ignored the excellent draft prepared by Nagananda Kodituwakku about ensuring that the judiciary is made more accountable – through self regulation I should add, since this should not be the business of the executive or the legislature – to those who need its services. And though Karu Jayasuriya has responded to my suggestions, he seems diffident, and claims it is difficult to change the existing political culture. My point was that that was what we were elected for.
Finally, in this Chapter on Democracy and Representation, I look at how countries can avoid the impression that their governments look after only particular sections of society. Making it clear that government is inclusive, and bears equal responsibility for all groups in a country is an important part of ensuring the unity and thus the sovereignty of any country.
The idea that the winner takes all after an election has caused serious problems in many democracies. It reduces the need for constant consultation that will contribute to continuity of policy. In pluralistic societies, in particular, it leads to neglect of the needs and aspirations of minorities. Minorities need not just be racial and religious minorities. Particular regions and social groups, even though they are a part of the racial or religious majority in a country, can be neglected by a government based on a parliamentary majority that springs from a limited proportion of the vote.
Constitutional safeguards, in the form of entrenched provisions, can ensure to a certain extent that discrimination is limited. However, in order to satisfy the needs of all these groups, constitutional safeguards alone will not suffice. Increasingly therefore, states have begun to realise that regional structures of governance are necessary, if the needs of particular segments of society are to be addressed. A central government cannot be expected to appreciate and respond actively to the special needs of smaller units with the same devotion that a government concentrating on that unit alone can supply.
The argument that devolving power to smaller units will cause problems cannot be sustained if the process of devolution is systematic and coherent. Certainly, there are issues that are best handled centrally, and will have to remain the prerogative of the central government. But assuming that all issues are best handled centrally is a fallacy. Also, the argument that devolution of power can lead to separation is no more valid than the argument that failure to devolve also leads to separation. Historically, the latter has caused separatist movements more often than the former.
The argument that devolution suits only large countries is also incorrect, since rational devolution supposes that authority is devolved in accordance with convenience rather than abstract principles. Larger units may require more powers, but smaller units can also exercise some powers in a manner that will benefit their people. One of the most successful examples of a country that has remained unified despite marked differences among its people is Switzerland. It is a relatively small country which allocates considerable power to the several cantons that constitute it. Read the rest of this entry »
One of the biggest problems Sri Lanka faces is the absence of consultation between political parties. The manner in which the Reform Agenda of the President was nearly destroyed because of a failure to see it as a national need is typical of what is wrong. The Prime Minister decided that this was an enterprise for which the UNP had to get the credit, and accordingly he worked only with his chosen acolytes. Though lip service was paid to consultation, through what was termed the National Executive Council, this was set up in a very haphazard fashion, and had no plan of work, nor regular meetings.
So the 19th Amendment emerged, like Athene from the head of Zeus, from the team that Ranil had asked as early as November to prepare a Bill to transfer power from the President to the Prime Minister. Jayampathy Wickremaratne revealed this early in our discussions about the manifesto, and though he took the point that publication of such a Bill during the campaign would play straight into Mahinda Rajapaksa’s hands, he did not accept the further point that such a procedure would be unfair. It was wrong to ask the people to vote for one person in order to give power to another, but Jayampathy was so enamoured by then of the Wickremesinghe agenda, that he simply bided his time and then produced his draft.
The result was that what should have been a process conducted with goodwill on all sides turned acrimonious. Other aspects of the manifesto that seemed equally important to other parties were ignored. Though perhaps Ranil Wickremesinghe was only concerned with what was of immediate importance to him, and thought other things could be dealt with later, the impression he created was that he was simply not interested in strengthening Parliament (through amending the Standing Orders) or introducing a Code of Conduct, or Electoral Reform.
Perhaps he cannot be blamed, given the confrontational view of politics that has developed in the last half century and more. The problem I think started with the manner in which Mrs Bandaranaike’s government was defeated in 1964, which involved bribery on a scale that would now seem ludicrous. But even so, the Parliament elected in 1965 seemed remarkably civilized, and legislation did seem to involve consultation and consensus. Indeed, though I still regret the manner in which the opposition campaigned against Dudley Senanayake’s attempt to introduce District Councils, that measure lost largely because of the internal opposition to devolution in his party.
The 1970 election however put paid to hopes of consensus building. Perhaps traumatized by the 1971 insurrection, the United Front government pushed through its new constitution without sufficient consultation. It did however go through the motions, of setting up a Constituent Assembly, but internal problems in the UNP prevented a principled response, which might have led to more productive discussion. In turn, in 1978, helped by the rout of the SLFP, J R Jayewardene virtually ramrodded his new constitution through, ignoring the very sensible strictures of experts such as N M Perera.
The massive majority he enjoyed, and the carrots he provided his MPs with, led to a breakdown in the Committee system. I was astonished, when I got into Parliament, to find that Committees did not meet regularly, and when they did, they took no notice of what they were supposed to discuss according to the Standing Orders. The business they transacted was about the particular problems of individual MPs. The idea that they should consider policy and examine expenditure seemed incomprehensible to my colleagues. One could not however blame them, since the electoral system J R had instituted meant that they had to devote all their energies to popularizing themselves. Read the rest of this entry »
Democracy in the Modern Period
During the Renaissance, when classical (that is, Greek and Roman) learning was revived in Europe, there were a few Italian city-states that practised some forms of democracy. But these too eventually submitted to the rule of autocrats, or became parts of larger kingdoms.
As the world began entering the Modern Period, beginning in the sixteenth century, Europe, after reaching Asia and the Americas through its voyages of exploration, began to exercise power over the rest of the world At this time Europe was dominated by large empires and kingdoms ruled by hereditary monarchs. But as wealth increased, and more and more people began to feel the need to participate in government, demands for democracy developed. Study of classical authors helped to establish the idea that the state should be based on a social contract, whereby the rulers were bound to act on behalf of the people. If they failed to do this, they could be challenged. The Divine Rights Theory of Monarchy, which held that a state belonged to the monarch, lost credibility.
As mentioned earlier, it was in England that parliament emerged in the seventeeth century as an institution capable of challenging the executive power of the king. The French Revolution against monarchy, and the American Revolution against British rule in the eighteenth century, established the idea that government essentially belonged to the people, and derived its authority from them. Even though at the beginning of the nineteenth century the kings of Europe tried to restore the old order, this was only temporary. Monarchies prevailed in most countries until the twentieth century, but the kings had to accept parliamentary authority which gradually increased. Those who resisted the longest were swept away during the First World War. Those who had compromised earlier, such as the English King, kept their thrones though actual decision-making powers passed to the elected representatives of the people. Read the rest of this entry »
When we were discussing electoral reform at a meeting of all parties chaired by the President, I was astonished at the general incapacity or unwillingness to conceptualize. The principal exception to this was the JHU representative, Asoka Abeygunasekera, whose few interventions went straight to the core of the problem.
A week later, at the launch of his book on the last election, I was telling one of the diplomats present about his conceptual capacities when he got up to speak. His main point was the general lack of analysis in addressing problems. I suspect that, like me, he has been sadly disillusioned by the failure of this government to address scientifically the problems it identified during the election campaign, and work systematically to overcome them.
Unfortunately this government, like the last one, seems to avoid thinking and planning, but rather produces ad hoc solutions when problems crop up, with no assessment of long term goals. Its idea of consultation seems to be to leave particular matters to particular individuals, which is why perhaps there has been no progress at all on that most important of commitments, a Code of Conduct. Instead we have concentration by individuals of what they want, which reduces to how they can best enhance their own powers.
All this is accompanied by outbursts that do more damage than the good achieved by positive measures. Ranil Wickremesinghe threatening to shoot Indian fishermen or attacking the Australian government for not following the line of his preferred Westerners with regard to the last government, Mangala Samaraweera defending Kshenuka Seneviratne by accusing Tamara Kunanayagam of speaking in support of the Tigers, Ravi Karunanayake claiming that the business sector had supported the previous government, all show a penchant for scoring debating points without considering the long term interests of the country. Read the rest of this entry »
To ensure that Parliament is composed proportionate to the will of the people, while at the same time allowing for constituencies that had individual representatives, the Germans developed a system that combines features of both the simple-majority system and the proportional representation system. In the German system, half the seats in parliament are occupied by candidates elected on a constituency basis. In addition, voters cast votes for a party and those votes are counted separately.
The number of seats a party occupies in the parliament must be in proportion to these votes. In order to achieve this, the remaining half of the seats in parliament, after the individual constituency representatives have been chosen, is allocated to each party to reflect the proportion of the votes they obtained on the party vote. This requires correction of any imbalance caused by the constituency vote, where one party may win a great many constituencies even though it has won each of them by a very small majority.
An example may help to make this system clearer.