Good Governance 13 – The suitability of Members of Parliament for their roles

In our discussions about the 13^th 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.

Most Important Issue Facing the new President is to Restore Confidence in the Governmental Process

The most important issue facing the new President is to restore confidence in the governmental process.

For this purpose it is necessary to establish systems that work according to the Rule of Law, and with full accountability to the people. In this respect it is vital that Parliamentary control of legislation and finances be restored.

This does not mean strengthening an Executive based in Parliament, but rather strengthening Parliament to be an effective check on the Executive. This means strengthening the power of ordinary members of Parliament, both government and opposition.

Measures to ensure this were the principle component of the Standing Order changes I had proposed last year, changes which the Speaker ignored in contravention of the existing Standing Orders. My main purpose was to strengthen Committees of Parliament by streamlining them and ensuring that they were not chaired by members of the Executive. In the case of the Finance Oversight Committees, the PAC and COPE, the chair was to be a member of the opposition.

But ensuring open discussion in committees is not enough. It is also necessary to give them teeth, and for this purpose we should ensure that the Executive either follows their recommendations, or else gives reasons in writing as to why this is not desirable or possible. The same would apply to the petitions committee, the directions of which are now simply flouted by the Executive.

I would take this principle further, to promote consultation as well as accountability at local levels. The Local Government Act should be amended to ensure involvement of People’s Representatives in Committees of Pradeshiya Sabhas and Local Councils. I have already suggested amendments in this regard to the Secretary of the Local Government Ministry who had consulted me about the Act. It will also be necessary to define clearly the areas of responsibility of local government bodies, and to give them powers to work effectively in these areas.

In addition, given the number of administrative decisions made at Divisional Secretariat level, there should be consultation mechanisms at Grama Niladhari level, with mandatory feedback at the decision making level. This is the Divisional Secretariat, and I am glad that Mr Sirisena’s manifesto declares the centrality of this level, and the need to ensure coordination of services. With regard to this I have been working together with several Ministry Secretaries on a UNDP Project to improve delivery of services, and I hope the next government studies the excellent report produced by Asoka Gunawardena and implements its recommendations. Certainly we must get rid of the ridiculous system introduced by Basil Rajapaksa, of handing over development funds to Members of Parliament to spend virtually at will, with no coordination and little reference to the plans of the Line Ministries.

Line Ministries should be strengthened, and this requires reducing the size of the Cabinet in accordance with clear rationales, as pledged in the opposition manifesto. We cannot have many ministries dealing with similar subjects, and we cannot have ministers doing what they want – and in particular accepting unsolicited bids for projects, which has become a feature of the way the present government runs things – without adherence to well developed plans. It is imperative that a Ministry of Policy and Plan Implementation be set up, and given teeth on the lines of the suggestions the Secretary to that Ministry and I forwarded to Mr Lalith Weeratunge at the end of 2009.

I have stressed governance issues, because these seem to me the most important in terms of safeguarding democracy and promoting equitable development. For this purpose it is also essential to pass the proposed Freedom of Information Act, and to give it teeth through ensuring public accountability at all levels of government. In addition I hope we will also introduce the Bill of Rights which was promised in the 2005 Mahinda Chintanaya, and which the Ministry of Disaster Management and Human Rights had got drafted by the end of 2009, but which has since been ignored.

Inclusive governance will be Sri Lanka’s new mantra

There were many firsts in the election of President Maithripala Sirisena in Sri Lanka: An incumbent president was defeated; parties specifically representing different races and religious groups —  the Jathika Hela Urumaya for the Sinhalese, the Tamil National Alliance (TNA), and the Sri Lanka Muslim Congress along with the All Ceylon Muslim Congress — came together on a common political platform; corruption was a major issue in the pre-poll campaign; and now a specific timeframe has been set for reforms.

However, the most important responsibility of the new government will be settling the national question. While the country owes him a debt of gratitude for eliminating terrorism from the country, former President Mahinda Rajapaksa did nothing about the commitments he made in 2009 to ensure inclusive peace.

As a member of the Liberal Party, I urged Rajapaksa to implement the 13th Amendment, which created Provincial Councils in Sri Lanka, but met with no success. I understand that there could have been problems about some aspects of the amendment but those could have been resolved through discussions.

When we negotiated with the TNA, MA Sumanthiran and I found a solution to what had previously been considered the vexed question of powers over land. We met stakeholders, asked them about their apprehensions and assuaged those fears.

Unfortunately, two members of the government acted in bad faith, one even refusing to fulfil instructions the president gave us to act on what had been agreed with the TNA.

Reaching consensus on these matters is a priority and the new government should set a time table for this. Successive Sri Lankan governments failed because they allowed talks to drag on without any purpose.

A Presidency even more under Threat – Carrots, Sticks and Adulation

Though the choice the nation has to make on January 8^th is a very serious one, there has certainly been a lot of entertainment to be had during the last few days. This is not all on one side, since it is odd to find many individuals who had little time for each other in the past now working together. My friend Dayan Jayatilleka first decided that the JHU provided the saving graces to the campaign of the common candidate, but then threw in his lot with the President. I assume he thinks there is hope of reform, which is ironic given his deep distrust of the Secretary of Defence. However I can but hope that he will be given control of the Foreign Ministry, given his incisive dissection of its disastrous workings in the last few years. He will certainly put an end to what he diagnosed some time back, that the Foreign Ministry was territory occupied by the Defence Ministry, and the Defence Ministry was territory occupied by Israel. His return to the Rajapaksa fold suggests that the President has begun to see sanity – though, as Dayan has noted, the President is generally sane when you talk to him, it is his capacity to implement his own decisions and follow his instincts that has been in doubt over the last few years.

Dayan’s decision may have also been dictated by his dislike of both Chandrika Kumaratunga and Ranil Wickremesinghe. It is another irony that these two have now discovered each other’s virtues. But politics has always brought together people who were on different sides earlier, and this is understandable since we all need to look for good qualities in politicians and hope that these lead to productive synergy. Chandrika reminded me, when we met on the day of the first Press Conference, that I had once told her I wanted to bring her and Mahinda together. I certainly regret that both did not try harder, because had they at least talked to each other, and tried to reach consensus on issues both had been positive about earlier, such as the 13^th amendment, Mahinda would not so easily have become the prisoner of the rent seekers and extremists who now dominate him. 

People forging new alliances then, or going back to old ones, is not preposterous. What is preposterous is the excess the government has indulged in, in coping with the surprise it got when Maithripala Sirisena became the common candidate. First it had, as the President indicated, to make sure that no one else crossed over. To do this it employed both carrots and sticks, giving full publicity to the latter effort. This came in the form of the President’s declaration that he had files on everyone.

Moving Forward: India and Sri Lanka

Text of a presentation by Prof Rajiva Wijesinha

At the Maulana Abul Kalam Azad Institute of Asian Studies, Kolkata

At an international seminar held on November 6^th and 7^th 2014 on

An Appraisal of India’s Neighbourhood Policy: Way Forward

 

In the period leading up to the victory over the terrorist Tigers of Tamil Eelam in 2009, India and Sri Lanka enjoyed an excellent relationship. It was clear that, despite the opposition of politicians in Tamilnadu, India was supportive of the military initiatives of the Sri Lankan government. More importantly, it assisted Sri Lanka in dealing effectively with the efforts of some Western countries to stop the Sri Lankan offensive, and then to condemn it after the military success of May 2009. This was most obvious in Geneva, where the Indian Permanent Representative, together with his Pakistani counterpart, comprised the negotiating team that accompanied the Sri Lankan Permanent Representative, Dr Dayan Jayatilleka, into discussions with Western nations that had wanted a resolution critical of Sri Lanka.

Since then the relationship deteriorated. In 2012 India voted in favour of a resolution put forward by the United States that was strongly critical of the Sri Lankan government. And though much aid and assistance was given to Sri Lanka for reconstruction after the war, India seems to feel that this is not properly appreciated – as evinced by recent remarks by the Indian High Commissioner.

Conversely, a response to his speech in a Sri Lankan newspaper displays even great angst, culminating in the complaint that ‘In the more recent past, India repeatedly voted against Sri Lanka at the UNHRC in Geneva whereas in view of India’s domestic political constraints, all India had to do was abstain which Sri Lanka would have appreciated immensely.’ Before that there had been a catalogue of the support offered in the eighties by India to terrorist movements in Sri Lanka.

That support is a fact, and India must recognize not only the damage done to Sri Lanka by its support for terrorists in the eighties, but also the continuing exploitation of that support by forces in Sri Lanka that I would describe as racist. But Sri Lanka too must recognize that those actions were committed thirty years ago, and also that there were reasons for India to behave as it did. Though I think it is important to affirm the moral principle that assistance to terrorists is totally beyond the pale, we have to understand that India felt threatened at the time by the hostility evinced by the United States during the Cold War period.

When the government of President J R Jayewardene abandoned Sri Lanka’s traditional policies of Non-Alignment and close understanding with India, to the extent of offering facilities in Sri Lanka to a country that made no secret that India was the principal target of its military adventurism in the Indian Ocean, India reacted aggressively. As your current Deputy National Security Adviser, Mr Gupta, put it succinctly, though such a response was not justifiable, it was understandable.

This was in the context of an attempt by one of his subordinates at the Institute of Defence and Strategic Analysis to defend Indian support for terrorists. I appreciated Mr Gupta’s forthrightness at the time, and I believe this should be shared by Indian analysts of the current relationship. At the same time it is even more important that Sri Lankan analysts, such as they are because we do not have a tradition of intellectual rigidity, recognize the seminal damage done to the relationship by the adventurism of the then Sri Lankan government.

The current Sri Lankan government must also recognize that today, thirty years later, India might be worried by what seems total commitment to China. I do not think this is what China wants, and I do not think any serious thinker in Sri Lanka would argue that the relationship with China must be developed with no regard for Indian sensitivities. But sadly Sri Lanka currently has no coherent foreign policy, and the practices and pronouncements of many of those in positions of influence create the impression that we are putting all our eggs into the China basket. This impression is fuelled by the United States, ironically so, given that in the eighties it saw China as a tool to be used against its great enemy at the time, the Soviet Union, with which India was closely allied.

A Presidency Under Threat 14 – 13th Amendment Inhibitions

I had a bizarre experience recently when I had to attend what is termed Standing Committee B of Parliament, which deals with legislation. This was in connection with the Vasantha Senanayake Foundation (Incorporation) Bill which I had sponsored. The experience was rendered worse by the Minutes which I received subsequently, which bore no relation to what had actually taken place.

I presume that there is some formula for reporting the meetings of these Standing Committees, but it was certainly inappropriate in this case, given that I had raised some matters which I had asked to be recorded. The Minutes state that I moved several amendments to the original draft of the Bill I had presented. This was not the case. What happened was that we were told the legal advisers had gone through the draft and suggested amendments. I accepted these, but I asked the basis on which they had been made.

It turned out then that the representative from the Legal Draughtsman’s Department who was supposed to liaise with Parliament regarding the Bill had no idea of the reasons. After much discussion one bright lawyer from the Attorney General’s Department said that the changes were probably because the Bill as it stood seemed to be in conflict with the Constitution.

I gathered then that for years the Attorney General had advised against many charitable works by Foundations on the grounds that the Constitution, following the introduction of the 13th Amendment that introduced Provincial Councils, declares that ‘No Bill in respect of any matter set out in the Provincial Council List shall become law unless such Bill has been referred by the President…. to every Provincial Council’.

The ease of negotiating with sympathy

Prof Laksiri Fernando, in responding to my account of discussions about a Senate, has reminded me about publishing the proposals, as I had mentioned, and I will send them in as soon as I am back in Colombo. However, while I do not recall promising to publish my correspondence with Mr Sumanthiran – which is not in fact of any great significance – perhaps it would be useful, given current controversies, to publish the draft he and I prepared about land matters.

What we realized, which is why I proposed that we look at the matter quietly, was that the issue was causing much controversy based on dogma. The TNA insisted that the 13th Amendment conferred land powers on the Provincial Councils, the government relied on the Constitutional provision that land grants were in the power of the President. Mr Sambandan, while insisting that he had no objection to any citizen acquiring land anywhere on his own, went into a lengthy account of government colonization schemes which he said had changed the demography of the East.

I did point out that something similar had happened in the Wanni, where after the conflict we had come across large numbers of Tamils of Indian origin who had been settled there because of various colonization schemes funded by international agencies – including for instance the schemes run by Jon Westborg when he headed Redd Barna, if memory serves me correct. But at the same time I could understand Westborg’s motivation, given the appalling attacks on Tamils in the hills orchestrated by members of the Jayewardene government, in both 1977 and 1981 – just as I could understand the need to settle landless peasants in empty areas that had never been occupied by anyone previously.

Ways to move forward in negotiation

I was pleased that Laksiri Fernando had picked up on my publication of documentation with regard to the negotiations between the government and the TNA way back in 2011. I suspect he is right in saying that some might think this is betrayal, given that even my efforts to defend the Secretary of Defence against Sarath Fonseka’s allegations in 2009 were described as betrayal. But this was by those such as Wimal Weerawansa who wanted to take political advantage of those allegations and therefore did not mind insinuating that they were true.

However I trust that those concerned with political reconciliation and long term peace, as Prof Fernando is, will realize that these notes are meant to make clear how easy it would be to reach a consensus with the TNA. But this needs negotiations to be conducted in good faith, and systematically, with appreciation of what the other side might fear. It is also important to move swiftly on whatever is agreed, as Nimal Siripala de Silva tried to do in 2011 with regard to the Concurrent List, only to be rebuffed by G L Pieris., even though we had obtained the President’s agreement to proceed.

To illustrate what I mean, I will look at the question of a Senate, which seems to have been a priority only for the President and me on the government side. To go into the history of that proposal, when I was appointed to head the Peace Secretariat in 2007, I should perhaps have participated actively in the discussions of the All Party Representatives Conference, which SCOPP hosted. But the Chairman, Prof Tissa Vitharna, thought that someone new should not be involved, so I stayed away. My main contribution was to cut down on the food bill, which had been enormous when I took over, largely because the practice previously had been to stuff up the delegates while waiting for the proceedings to start. This took for ever given prevailing standards of punctuality, and with the orders being placed beforehand, much went to waste when hardly anyone turned up.

Never glad confident morning again? The decline of the last five years – Part 5

This false optimism, which is based on the assumption, which is quite contrary to the indications he has given, that the President wants to do none of the things he promised, has extended now to assuring him that all will be well after the Indian election, and we ourselves do not have to do anything to improve our situation. I am reminded then of J R Jayewardene twisting and turning in the years between 1983 and 1987 as he avoided action, and was forced gradually to concede, but always doing too little too late. So I wrote once that he assured us that there was a pot of gold at the end of the rainbow, during his discussions with India in 1986, but in the end the rabbit he pulled out of his hat was General Zia ul Haq. The idea that the Ministry of External Affairs has tried to convince the President that Mr Modi will play Santa Claus is preposterous, but I fear that that is the type of advice and advisors the President has to put up with.

All this is based on the assumption that somehow we can avoid implementation of the 13th Amendment. Because the advisors believe that subterfuge will win the day, no attempt has been made to analyse the 13th Amendment, see if anything in it is potentially dangerous, and then develop mechanisms to avoid those dangers. Instead we are doing nothing about the vast areas in which the strengthening of local administration – and concomitant local accountability – would immeasurably benefit the people.

The President I think understands this, for he was very positive about the ideas I suggested be discussed at the negotiations government had with the TNA. But the history of those negotiations makes it clear why we are in such a mess. The President put me promptly on the delegation when I pointed out there had been no progress over the preceding three months, and in the next three months we saw much progress, in part because I insisted on meetings being fixed on a regular basis. The government also put forward suggestions of its own, that I had proposed, whereas previously it had simply listened to what the TNA put forward, and then failed to respond despite promises.

Strengthening institutions and organizational capacity 17 – The relative lack on interest in Local Government

I was quite flattered recently when I was told by a former public servant, for whom I had the greatest regard, that I was probably the first politician since S W R D Bandaranaike to be so interested in Local Government. I am not sure that this is quite correct, not only because I am not really a politician, but also because I think President Premadasa did a lot of work in this field. But nevertheless it set me thinking on why the subject has not had the attention it deserves.

This is sad because other countries have moved forward significantly in this sphere. Indeed some of the hot air now being blown about with regard to India and its role in our introduction of the 13th Amendment would I think be dissipated if we looked at what India has actually done, since that Amendment was introduced, to bring government closer to the people.

The 13th Amendment came about quite simply because centralized government had been too distant from the people. While this was obviously the case with regard to the needs of minority communities, which also suffered because of exclusivist language policies, we should also remember that rural majority communities also suffered because of a majoritarianism that did not take the concerns of the marginalized into account. Hence indeed the two Southern youth insurrections.