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Prince 3For good measure the provision about restricting the unlimited power of appointment by the President was repeated with regard to the Judiciary, with capitalization –

Appointments and Removals:

The Chief Justice, the President of the Court of Appeal and every other Judge, of the Supreme Court and Court of Appeal shall be appointed by the President SUBJECT TO APPROVAL BY THE SENATE

One of the most worrying incidents that took place during President Rajapaksa’s second Presidency had been the impeachment of the Chief Justice. She had not been the best choice for the position and the Opposition had raised questions about the appointment and her conduct, after the appointment was made. But the impeachment was badly handled, and in terms of bizarre provisions in the relevant instruments, the Constitution and the Standing Orders of Parliament. The former simply specified that impeachment should be by procedures laid down by Standing Orders, and the relevant Standing Orders had been hastily formulated when President Jayewardene wanted to put pressure on the Chief Justice he had appointed, one of his private lawyers, who had nevertheless begun to speak out against government excesses.

The leader of the Opposition was to grant that only half the required Standing Order had been set up, and since that had worked and the then Chief Justice had been subdued, the other half had been forgotten. So the provision remained that Parliament appointed a Select Committee to investigate, which involved it acting as both prosecution and judge. In the intervening thirty years it had often been pointed out that these provisions were unjust, and commitments had been made that they should be changed, but nothing had been done about this.

The Select Committee appointed by Parliament made matters worse by behaving in boorish fashion and giving the Chief Justice no time to formulate a defence. It also gave her no notice of witnesses it proposed to call, and summoned them after she had withdrawn, as had done also the opposition members of the Committee. Rulings by the Courts that the proceedings should be stayed were ignored, and the motion was duly carried, with only a very few members on the government side refusing to vote for the motion.

Though government also realized how unfair the system was, and some members pledged to change it, even while arguing that what had been done was perfectly constitutional and so could not have been avoided, all this was forgotten after the Chief Justice was removed, and Mohan Pieris installed in her place. The Speaker showed his contempt for, or perhaps just his ignorance of, Standing Orders in failing to put my proposals to amend them to Parliament. The Standing Orders themselves mandated that any such proposal to amend should be put to the House and, after being seconded, be referred to the Committee on Standing Orders, but instead the Speaker said he would refer them direct to the Committee. Since he had avoided making clear the mandate Parliament would have bestowed, he failed to summon the Committee, and got away with this for over a year. Before that, despite repeated requests, though sadly only from me, he had not summoned the Committee for three years.

I regret that I was the only Member of that Committee to make repeated requests that the Committee be reconvened. Unfortunately the Opposition Chief Whip who was on the Committee had no understanding of the importance of Standing Orders, while the TNA Representative, Mr Sumanthiran, who had worked assiduously with me to redraft about a quarter of the whole in the first three months of the new Parliament, kept quiet when meetings were suddenly stopped, perhaps because we had been too efficient. Obviously it made sense for the TNA not to bother too much to increase the effectiveness of Parliament, since that might have detracted from their main contention, that Parliament was incapable of serving the interests of the Tamil people. Read the rest of this entry »

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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.

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The outcome of an informal consultation on promoting the Rights of Children held recently, with the Secretary to the Ministry of Child Development and Women’s Empowerment in the chair, was a discussion document to assist with the formulation of policy in this field. The care of children must be part of a comprehensive programme with the basic goal of empowering all elements in society that need protection and additional support.

Though Sri Lanka achieved great success in providing universal health and education at the period of independence, social services lagged behind. They were provided in terms of the patronage approach that governed Poor Law in Britain in the previous century. The vulnerable were treated as a species apart, with institutionalization and punitive measures being implemented instead of rehabilitation. This last is needed to develop the potential of those who had suffered from lack of equitable opportunities.

To ensure comprehensive and positive coverage of vulnerable sections of society, coordination between the Ministries of Social Services and of Child Development and Women’s Empowerment is essential. This also requires regular consultation with local professionals, as well as the informed involvement of provincial agencies in terms of their responsibilities, to develop a truly national perspective. Women and Children are amongst the most vulnerable sections of society and mechanisms to ensure a level playing field for them are an essential part of the social services government should provide. Interventions for other vulnerable groups will also involve services that are particularly important for women and children, ranging from counseling to employment policies based on equity and furthering the talents and capabilities of all.
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In a week of much depressing news, perhaps the most depressing was that presented under what seemed intended to be a triumphant headline. The headline read ‘President resolves Uswewa Junior School teacher shortage’, and the story was about how the President took steps to fill teacher vacancies in a Junior School in the Hambantota District.

Children from that school had been at Temple Trees, and one enterprising student had complained that there were no teachers for English or Science subjects. The President had directed the student to complain to the Southern Province Minister of Education and then issued orders to the Minister to take immediate steps to fill teacher vacancies in the school.

Assuming that teachers have now gone to the school, and will stay there, we should rejoice at the news. Any step to improve the education provided to children anywhere is a positive measure. But it is clearly completely unacceptable that there should be teacher shortages that can be resolved only if a child happens to be at Temple Trees and complains to the President.

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Coincidentally, after I had written last week about the complications caused by Zonal Education Offices setting termly examination question papers for schools, the Minister of Education himself raised the question at the fortnightly Parliamentary Group Meeting. He was hurt, understandably so, at the harsh criticism of errors in a number of papers set by a number of Zones.

His point was that there were many important things to think about, including obviously, most recently, the introduction of a Technological Stream for major public examinations. This is indeed a laudable development, though I cannot understand why the Ministry does not go further and promote a free mixture of subjects, with greater breadth as is happening in examination systems round the world which are being emulated in more and more countries. But while such innovations are beyond the scope of the Ministry now, given that its officials are stuck – and allowed to stick – in mindsets long superseded elsewhere, we must be thankful for small mercies such as the long overdue recognition of the importance of technology.

I sympathized with the Minister’s irritation, especially when he pointed out that there were only three examinations that were important in a child’s life, namely the Year 5 Scholarship Examination, and the Ordinary and Advanced Level Examinations. This is true, though it is a pity that the education system puts so much pressure on children at the age of 10, when putting more energy into ensuring that rural schools provide better services at secondary level too would be more equitable for all children.

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In a forceful critique of attempts to amend the 13th Amendment to the Constitution, the Secretary General of the Liberal Party, Kamal Nissanka, also made no bones about the fact that the current Provincial Council system had many flaws. Though the Liberal Party has always been in favour of devolution, we have also noted that there are several things about the 13th Amendment that need improvement. However we believe that this is best done through comprehensive discussions and consensus, certainly not through contentious piecemeal adjustments.

But while several structural changes are desirable, Kamal also noted a very practical problem that I had not seen highlighted before. He wrote that the system ‘had become a method  of wielding power  by  the same people  who enjoyed  power in the centre.  Close relatives of leading politicians were promoted to stand for provincial councils making it a political extended family.’

This indeed makes a mockery of the idea that Provincial Councils should provide the people with an alternative mechanism to address their concerns. Given that the current structure entails several overlaps, the duplication of authorities which have the same perspectives means that in essence the senior partners will lay down the law.  The Provincial Councils then become a sort of rubber stamp for the central government.

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After many months of thinking Prof G L Pieris was leading the President down the garden path, I was pleased recently to find that he had lived up to his intellectual reputation and given some reasonably sound advice. This was with regard to the effort to amend the 13th Amendment, as to which initially there were four areas of apparent concern.

When the Cabinet was finally given some amendments to consider however, there was only one proposal for change. This was after G L had been asked for advice, and it looks like he had very sensibly said there was no point in worrying about land and police issues. Given that National Policy on all issues remains with the central government, and given the practices that have been instituted since the days in which the 13th Amendment was passed, there is no doubt that government will continue to be in charge of these areas. Implementing national policy through regional agencies, whether elected or appointed, will of course continue, and I can only hope that government moves swiftly towards making sure this happens through small units which can actually relate readily to the people.

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In talking critically of those who now believe that we need to fall in line completely with the West, following the defeat in Geneva, I realize that there are those who think that I myself am a fervent proponent of a Western perspective. I would like to believe that they do not really think this, but use it as a stick to beat me with. However, given the way people trust their emotions rather than reason, it is quite possible they genuinely believe I too am in thrall to the West.

The reasons for this include my familiarity with Western philosophy, and particular Western political thought, as well as my facility with English and the fact that this makes it easy for me to get on well, whether I agree with them or not, with Western interlocutors. Ironically those elements in the Ministry of External Affairs which are committed to a purely Western agenda claim that I have in fact alienated the West. This is obviously not true, except for characters such as Paul Carter who tried to subvert our army officers into betraying their country. But people generally believe what they want to believe.

I suppose I should take comfort from being attacked on both sides as it were, but I have to accept that the criticism from the other side, misplaced as it is, can be quite damaging. Some of it springs from the confusion that prevails in Sri Lanka about Liberalism, which is generally confused with the Neo-Liberalism that dominated Western thinking when it finally triumphed in the Cold War. The privileging of market forces alone, without the provision of safety nets and welfare measures that enhance opportunities, is not Liberalism at all. Unfortunately, when excessive statism led to the Thatcherite reaction, the grand centre ground of British Liberal thinking was overwhelmed.

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Join us in calling on His Excellency The President of the Democratic Socialist Republic of Sri Lanka to introduce a Constitutional Amendment to limit the size of the Cabinet to 20, with no more than 20 Cabinet Ministers and no more than 20 other Ministers of Junior Ministerial rank.

You can sign the petition by clicking here.

http://www.change.org/en-GB/petitions/his-excellency-mahinda-rajapaksa-the-president-of-sri-lanka-introduce-constitutional-amendment-limiting-cabinet-to-20-cabinet-ministers

Short link – http://chn.ge/YbSBgY

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One of the main problems we have had with regard to devolution is the failure of our law makers to draft legislation properly. The 13th Amendment is a case in point, since it is full of confusion about how power should be exercised.

The most obvious example of this is in relation to what is termed the Concurrent List, where the Constitution says that, where there is conflict, the decision of the Central Government will prevail. This is not concurrence. When this is pointed out, the response is that the clause was taken from the Indian Constitution.

In India that provision did not matter much, since the States had had governments before the Centre did. State governments therefore had experience in passing legislation, and the Central government would not counter such legislation, unless there were potentially destructive consequences.

In Sri Lanka however, Provincial Councils were new, and Jayewardene compounded the problem by choosing good fighters to head the lists for the elections that were held. This was understandable, given the violence in the country at the time, but it put paid to constructive development in the Provinces, except in Wayamba, where the toughie chosen also happened to be an able and imaginative administrator. Read the rest of this entry »

A wave of problems with regard to Human Rights has swept the country recently, most tragically the events at Welikada. The resolution to impeach the Chief Justice has made it clear our constitution has deficiencies with regard to ensuring the independence of the judiciary while also promoting accountability and transparency with regard to judicial decisions. Then we have had the internal UN report on the conduct of the UN in Sri Lanka during the war, and a spate of recommendations in Geneva that we thought had to be rejected.

Those who have read this column will realize that I have discussed these problems, and the dangers they present, and have also suggested remedies. I pointed this out to the President, but was duly crushed by his rejoinder, that since I functioned in English, necessarily I had little impact.

One of the pleasures of talking with him is that he listens, even when there is disagreement (though occasionally, when one argues too much, there is the firm injunction not to try to persuade him), and his rejoinders make a lot of sense. This is a characteristic he shares with the Secretary of Defence, who is even more definite about what cannot be done, but extraordinarily positive about most matters – as I found in my first formal dealings with him when I headed the Peace Secretariat, and he straight away allowed the A 9 northward from Omanthai to be open almost every day of the week, when the LTTE had previously not allowed the ICRC to facilitate this.

The President’s advice about the need for me to function more actively in Sinhala, and especially in Parliament, clearly makes sense. Given that my analyses are written in English, I cannot really expect them to have much impact on most decision makers. I am grateful therefore to those who do respond, to the letters I write in English after meetings of Divisional Secretariat Reconciliation Committee meetings. Health and Defence are always prompt, I should note, which confirms my view that institutions that observe the proprieties are also the most efficient. But recently I have been delighted to receive positive replies from the Ministry of Agriculture (though sadly not Irrigation, despite the many problems in that field drawn to my attention), and even the Ministry of Education has been helpful. Read the rest of this entry »

Rajiva Wijesinha

June 2019
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