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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 »

islandParliamentarian Rajiva Wijesinha is no stranger to controversy. A State Minister in the yahapalana government that took office in January, he was the first to cross the floor and rejoin the opposition. Though he has fallen out with what he describes as a UNP government, he remains combatively loyal to president Maithripala Sirisena. In this interview, Rajiva speaks to C.A.Chandraprema about the difference between RW and MS.

Q. How would you briefly describe your experience of the yahapalana government in the short time that you were in it?

A. The major problem is Ranil Wickremesinghe. He is JR’s creation which means a lack of morality and a certain ruthlessness. In a Westminster style system you don’t get rid of your rivals in the party. If they are able, they get a position. There was a promise that I would be in the cabinet and I told the president this. He told me that I should talk to Chandrika and to Ranil as it is they who decide on the cabinet but nothing came of it. There is really no one to argue with Ranil in cabinet except Rajitha and Champika. Rajitha was very good at getting the transfer of powers from the president to the prime minister stopped. But you need a critical mass. M.K.D.S.Gunawardene is upset about what is going on, but he cannot argue in cabinet. This is supposed to be a coalition government but in reality it’s not. It’s a UNP government which happens to have two or three outsiders in it. Kabir Hashim was appointed cabinet minister of higher education above me. There is no point in having a position where you can’t work. FUTA (The Federation of University Teachers’ Associations) had a meeting with Ranil and later Kabir informed me that he had written to the president recommending the removal of the UGC chairperson…

Q. What bugged you the most, was it the turf war between you and your cabinet minister or the principle behind the removal of the UGC chairperson?

A. Both really. If there is a State Minister he should have been consulted on a decision like that. We could have discussed the matter. FUTA announced that the prime minister had said that the UGC chairperson would be removed and a letter would follow from the president’s secretary. What you don’t do is to ask someone to resign because of pressure from FUTA. Once something is done without consulting you, that will become a routine practice. I was even told that the UGC has to be reconstituted and that there are lists in the prime minister’s office and that I should go and have a look. I said that this is not a political matter so why should there be lists of potential candidates in the PM’s office? Basically what we should be doing is looking for the best people and anyway, the prime minister should not be involved as it’s the president who appoints members of the UGC.

Q. That brings us to an interesting point. You said earlier that people like Champika and Rajitha Senaratne were taking the lead in not allowing the transfer of power from the president to the prime minister. But before the election when Maithripala Sirisena came to Sirikotha he told the assembled UNPers that even after becoming president he will continue to address Ranil as ‘Sir’. Then he said that he was not going to step into any of the presidential residences. All that was said to convince the voter that he was going to dismantle the executive presidential system. He signed MOUs with many parties saying he was going to abolish the presidency and with the JHU saying that only certain powers of the executive presidency would be reduced. People like Jayampathy Wickremeratne and the other NGO activists who backed the yahapalana campaign want it abolished. Why are you, a liberal, in favour or retaining the executive presidential system?

A. The Liberal Party was the first to say that the presidency has too much power. That situation was exacerbated by the removal of term limits through the 18th Amendment. In 2013, the Liberal Party came to the conclusion that the presidential powers should be pruned but the institution retained. But I don’t have any objection to abolishing it.  When we were preparing the manifesto Jayampathy Wickremeratne said that we are committed to abolishing the executive presidency and that legislation is being drafted to transfer power to the prime minister. I said that such an arrangement was immoral and that I can’t ask people to vote for Maithripala Sirisena in order to make Ranil Wickremesinghe the leader of this country.

 Q. But that precisely was the promise that was held out in the election campaign and that is why UNPers came out in their numbers to vote for Maithri and to do all the ground level work for the election campaign.

A. That was never the position of the coalition. In any coalition people are going to say different things.

Q. Everybody who spoke of the powers of the executive presidency wanted the institution scrapped not to have its powers pruned.

A. That’s not true of everybody. That is true of some people including Jayampathy. The point that I wanted to make was that the removal of excessive powers does not mean the transfer of excessive powers. My point was that if the powers of the executive president are being removed you do not give them to another executive.

Q. The vast majority of the votes that Maitripala got were from the UNP and they voted for Maithri on the understanding that RW would be made prime minister. If you don’t fulfil the expectation that the vast majority of those who voted for Maithripala had, that raises questions about the whole concept of popular sovereignty.

A. Over the past several years, Ranil did not get anything more than 35% of the vote. Many people are emphatic on the point that they voted for Maithripala. The UNP is now going around and saying that Maithripala won because of them.

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.

Read the rest of this entry »

Dopey 2Namal then is here to stay, and with the passing of the 18th Amendment to the Constitution that removed term limits, his father would obviously be able to stay on as President, or to be precise as the Presidential candidate of his party, until Namal were ready to take his place. This was of course understood by other members of Parliament, and many saw friendship with Namal as their route to political advancement. Sensibly, Mahinda Rajapaksa did not give Namal a ministerial position, though this too had adverse consequences, since it meant he did not give any new entrant to parliament executive office (the only exception initially being the former LTTE military wing leader, Karuna, whose support had been invaluable in dealing with his intransigent former comrades, after he left the LTTE when it was clear they were not interested in a negotiated solution).

So the President had to leave out people of proven ability since, had he appointed them, the pressure from sycophants to promote Namal, which had in any case arisen, would have been irresistible – and Namal too would have had stronger claims to a position. Indeed, when the President first gave Deputy Minister positions to new entrants, he gave a couple to those who had done best in their Districts, which would facilitate Namal’s appointment at the next reshuffle – or rather, at the next accession of Ministers, since in Sri Lanka no one is left out when changes are made.

But there were other ways to provide Namal with the opportunities for patronage for which ordinary politicians needed executive office. He headed a youth movement called Tharunayata Hetak, a Future for the Young, which engaged in a range of activities that brought him prestige and publicity. He was invited to preside over ceremonial occasions, and given credit for what was done. And when the government settled people from the south in some areas in the North, he even had a new village named after him, Namalgama.

The forces indeed gave him much prominence. He had to be present when former LTTE cadres were released after rehabilitation. I came across one particularly sad example of the unnecessary problems caused by this rage for recognition – or perhaps the rage to bestow recognition, since Namal probably would not have minded if he had not been invited to all such occasions – with regard to the restoration to their owners of some boutiques in Kilinochchi which the army had occupied. I was asked about these at a Reconciliation meeting, and I suggested the community organization that raised the question meet the Civil Affairs Office of the military, and find out what was planned. I always noted that the military had a right to take over lands if essential, but they had to ensure that this was indeed essential, and that owners were properly compensated.

The officer who came to the meeting promised to look into the matter, but as we went out he said they had already decided to give back the boutiques. When I asked why this had not been done, he said that they were waiting for Namal to be present to restore the deeds at a formal ceremony. This struck me as ridiculous, since it caused unnecessary suffering to the owners, and in any case it was the army that needed to win hearts and minds, not politicians from the south. But the system of sycophancy rather than practicality was too well entrenched for my argument to have any effect, even though the officer concerned understood the point. Read the rest of this entry »

Much energy has been expended in recent months in speculation as to whether we will soon have a new Prime Minister, and if so, who it will be. I was confidently told by an opposition Member of Parliament that 7 Ministers had applied in writing for the post, and opposition papers are having a field day in declaring that senior members of the SLFP are disaffected because their claims might be ignored.

All this speculation is destructive, not least because those about whom there is speculation feel both that they must defend themselves against allegations of untoward ambitions, and also against the possible untoward ambitions of others. Thus opposition politicians and media outlets will in fact contribute to fulfillment of the prophecies they make.

What is not taken into account in all this is that such speculation is inappropriate when there is no impending vacancy in the position of President. Given that the post of Prime Minister carries little power, there is no reason for anyone to want that appointment. Though it is true that both Ranasinghe Premadasa and Mahinda Rajapaksa did much as Prime Minister, they would have done the same without such a position. Conversely, the only person who succeded to the Presidency by virtue of being Prime Minister was D B Wijetunge, and he did nothing of any significance in that position.

I could understand there being frenetic anxiety now for the position of Prime Minister had we not had the 18th Amendment, but since that was supposed to put paid to the lame duck syndrome, it is unfortunate that speculation still continues, and in the process weakens the Presidency. One reason I thought the removal of term limits, which is generally not a good idea, acceptable in the Sri Lankan context is that I had seen what happened to Chandrika Kumaratunga towards the end of her second term. Indeed I was told by a shrewd political commentator around 2004, when I had been impressed by her courage in dealing with the harassment she faced as President when the opposing party was in power, that there was no point in wondering what she might do, for she was history. Read the rest of this entry »

Over three years ago I told the President that he should not have Presidential election early, but should rather hold the Parliamentary elections first. Needless to say he ignored my advice, even though I sent him a detailed paper on the reasons for the view I held. He told me that it was only Gota and myself who thought it unnecessary to have the Presidential election so soon.

He said this jovially, implying I think that Gota and I were not politicians, and others knew much better. But, leaving me aside, he should have realized that the Secretary of Defence is the only one of his close advisors, excepting only the Secretary to the President, who has no personal agenda. And as it turned out,  many of the problems we face now spring I think from that early election, though no one  could have predicted the divisive effect – in an unexpected fashion – of Sarath Fonseka’s entry into the fray along with his insistence on being a common opposition candidate. As an aside, I should note that only one point in my paper  was later addressed, namely the lame duck effect. But the remedy put in place caused worries of another sort, and it does not seem to have helped very much, if current reports as to continuing maneuvers are correct.

I was reminded of all this when I saw that the United National Party has declared that it must get ready for a Presidential election in 2014, because it believes there are plans to amend the Constitution to make this possible. As it stands, the election cannot be held before 2015,  because the President has to complete 4 years in office before he can offer himself for re-election, as President Jayewardene quaintly put it when he introduced the 3rd amendment to the Constitution. Read the rest of this entry »

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 »

Rajiva Wijesinha

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