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reform agenda 12The Liberal Party was the first to say, more than two decades ago, that the Presidency as constituted by J R Jayewardene had too much power. In particular we felt it was wrong for the President to have total discretion with regard to appointments to important positions responsible for making decisions that affected the country at large.

This was not a popular view, and it was only more than 20 years after the Presidency was introduced that the matter reached boiling point as it were. So in 2001, in the last throes of the government President Kumaratunga had set up a year earlier, the 17th Amendment to the Constitution was introduced. But though it was obviously better to have some check on the President, the form this took was confusing, and not in accordance with general political principles.

What it did was set up a body of appointees who had to approve the nominations of the President to individual positions. It also had the unparalleled power of choosing nominees to Commissions, which the President was expected to endorse. This was bizarre, for to confine an elected President in this way, turning him or her into a rubber stamp, is grossly inappropriate. It was not surprising then that President Kumaratunga flatly refused to appoint the Elections Commission that had been selected by the Constitutional Council.

I myself feel that the Parliamentary Council set up under the 18th Amendment was more in accordance with political practice internationally, though unfortunately it did not have veto power. Still, had the Council actually ever met, it could have fulfilled a public purpose in that it could have put in writing objections to nominees of the President. After all in a classic Westminster system, a Head of State who is not elected by the people will not turn down a nominee of an elected Prime Minister. But the Prime Minister is careful to select appropriate people, since a delay, or a simple suggestion that he reconsider, would immeasurably reduce the moral authority of the nominee. In recent years a polite but detailed account of why Mohan Pieris was inappropriate, with for instance the arguments so clearly presented by Nagananda Kodituwakku, would have made it difficult for President Rajapaksa to persist with the nomination. Read the rest of this entry »

Parliament 20 Jan 15Mr Speaker, as the Former Chief Whip also said earlier today, it is an unusual pleasure to speak today as the Leader of the Liberal Party in Parliament. In that capacity I extend my congratulations to His Excellency the President on his strength of character in taking up what seemed an impossible challenge, and the eminently civilized way in which he has worked after his victory. We also congratulate the Prime Minister for understanding political realities and thwarting the game plan of the former President by supporting a common candidate. It is salutary that, in addition to being Prime Minister, he has taken charge of economic development, since I believe we need the careful planning and discipline that he will bring to this portfolio.

Mr Speaker, though the Liberal Party is a small one, we can take credit for having first identified the problems of this Constitution and this Electoral system which our government is pledged to change. Though I know the parties of the left objected to the 1978 constitution, they did so on the basis of a return to the Westminster model. This was foolish because they had been victims of excessive power in the hands of a Prime Minister under the Westminster system, during the previous few years.

We, or rather the Founder Leader of the Liberal Party, Dr Chanaka Amaratunga, was the first to clearly identify the dangers of excessive power, and to explain the way in which checks and balances could be introduced. In this regard I am sorry that I received very little support from other parties for the Standing Order changes I proposed over a year ago. Thought the Leader of the NLSSP did raise a question on my behalf, and the then Chief Whip tried valiantly to get some progress, no one else in authority seemed to care. In this regard I hope, Mr Speaker, that in introducing changes we work in terms of principles rather than engaging in ad hoc measures. We should make sure that Parliamentary Committees are constituted as happens in the rest of the world, with no authority to Ministers, but rather ordinary Members of Parliament being the Chairs. This should be mandatory for finance oversight committees and, while I am sorry that the TNA and the JVP are not in the cabinet, I believe their commitment to financial integrity should find full play in the chairing of those committees.

Hasty legislation was the reason for former President Chandrika Kumaratunga not acting in terms of the 17th Amendment and refusing to appoint the Elections Commission suggested by the Constitutional Council. I am glad therefore that, in getting rid of the 18th amendment, as to which I trust this house will be unanimous, we replace it with something based on constitutional practice in the rest of the world without blindly returning to the 17th amendment.

Similarly Mr Speaker, with regard to electoral reforms, we were the first to suggest change and to advocate a mixed system. We were then accused of trying to introduce foreign customs. However, soon enough all parties agreed on the need for the German system, though twice there were efforts to distort this. I remember discussing this in the nineties with the then Minister of Constitutional Affairs in this Parliament, and him admitting there were slight changes, changes that in fact distorted the principles of the German system. Late in 2002 I urged the Hon Karu Jayasuriya to act quickly, but he delayed, and the government was dismissed. I am glad therefore that the Hon Prime Minister made clear our commitment to swift reforms in this regard.

Mr Speaker, in celebrating the need for reform, the Liberal Party can be proud that alone in government it formally advocated reforms for the last two years. I should mention here though the debt owed also to the Hon Vasantha Senanayake, who along with me drafted a formal letter to the former President at the beginning of last year about the need for Reform. Had the former President listened to him and accepted, even with amendments, the constitutional change he tabled, perhaps things might have been different. But, instead of taking advice from moderates in the Sri Lanka Freedom Party, which I hope will return to its traditional moderation under its new leader, he was led astray by extremists and those who thought the state was theirs to plunder.

 

Mr Speaker, the Liberal Party told the President in writing in October that he should not have a hasty election but instead work on the reforms promised in the manifesto on which the UPFA had won the election. We told him we could not support him in an election without reforms. I know that the left parties had also advised him not to have a hasty election, and I am sorry that they, whose integrity I used to admire, did not also stand by their beliefs the way a few of us did.

I have been told I was courageous, but since as the former President said, I was someone without a political future, as a member of the Liberal Party, I had perhaps nothing to lose. The real heroes of today are His Excellency the President, the other members of the SLFP and in particular the Hon Vasantha Senanayake who spoke out so early, and the leader of the UPFA and the per minority members who left government in that tumultuous week after the Election was called. In wishing the government well, in hoping for opposition cooperation now for reform, I salute them for courage which I hope will not be necessary again in our political system after we get rid of the excessive authority of the Executive authority.

Thank you

Prince 2But Vasantha was also aware of the need to strengthen Parliament. Given the usual domination of the House by members supportive of the Executive leadership, he introduced a Second Chamber which would provide other perspectives more systematically, and enable Parliament to fulfil its legislative functions with care. The Senate was to be elected on the basis of equal representation from each Province. This would strengthen inputs from the periphery into decisions made at the centre, which was essential since, whatever the extent of devolution, some decisions, including those concerning national security, would have to be made at the centre. And the TNA had indeed accepted that a Second Chamber was desirable during the negotiation of 2011.

Given however the current oppositional nature of Sri Lankan politics, the proposals had emphasized the primacy of the House of Representatives with regard to matters of finance. They also made provision, obviously necessary given what now seemed a regular occurrence in the United States, for the executive to continue governing the country in the event of Parliament failing to pass the budget.

Legislature

1. Parliament:

All legislative powers of the people shall be exercised by the Parliament which shall consist of a Senate and a House of Representatives.

2. House of Representatives:

The House of Representatives shall be 200 members elected every 5 years of whom a half shall be elected from territorial constituencies on FPP basis and the balance shall be chosen by a separate vote to determine support for individual parties.

25 persons shall be selected proportionately by the political parties represented in parliament with particular regard to women, youth and demographics not represented adequately in parliament.

All bills for raising revenue shall originate in the House of Representatives.

Budget: In the event of non approval of the budget for the year, the budget of the previous year will continue to be in effect

Parliament shall have exclusive powers to make laws on subjects mentioned in the reserved list

3. The Senate:

Four Senators shall be elected at a separate election to represent each province, by the people for a term of five years.

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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.

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ceylon today1. Is there a need for a completely new constitution or will reform of certain provisions in the existing constitution be sufficient?

A completely new constitution would be best, but since that could take time, there should be swift reform of the worst features of the current constitution.

2. “Ensure the independence of the judiciary whilst promoting transparency with regard to appointments” is what you have said regarding judicial appointments. This is a bit vague. Do you think the President of the Republic should have the ability to directly appoint Judges of the Supreme Court after seeking the recommendations of the Parliamentary Council which will invariably not oppose presidential nominations? This effectively means the President has direct control over Supreme Court appointments. Is this conducive or should this power be curbed in a potential new constitution?

There are three separate issues with regard to the Judiciary. The first is independence with regard to the decisions it makes, which must be absolute. As I put it in the series on Constitution Reform now on my blog, www.rajiva.wijesinha.wordpress.com, ‘there should be no interference, by individuals or any other branch of government, with regard to the content of the decisions it makes’.

The second is procedure, as to which the Judiciary must conform to laws, and make rules for itself where the law is silent. I have written at length about the inconsistencies in the way in which judges give out sentences, and how they fail to fulfill their basic obligations of checking on prisons etc.

The third is appointments, where usually on a Presidential system the President appoints. However this should be subject to controls. Requiring the consent of the legislature or a component of it would be good, but consultation also can be effective in preventing hasty or inappropriate appointments. Such consultation should be transparent, which the 18th Amendment permits, because it does not require the Parliamentary Council to maintain confidentiality.

In a Westminster style Constitution, where the Head of State makes appointments, but on the recommendation of the Prime Minister, there is usually no rejection of a recommendation, but the very fact of a second entity being involved makes the Prime Minister careful. So too, if the Parliamentary Council functioned now, the President would necessarily be careful about not putting forward names of those who might cause him embarrassment. Both Shirani Bandaranaike and Mohan Peiris could have fallen into this category, and in fairness to both of them, they should not be subject to rumours but their conduct should have been subject to transparent scrutiny. Read the rest of this entry »

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. Read the rest of this entry »

Australian1. 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.

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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.

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Rajiva Wijesinha

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