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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 »

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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 »

Sneezy 5Tamara’s success in averting a resolution against us at the Human Rights Council in Geneva in September 2011 was not however to be repeated the following year. She had no say in the massive delegation that was sent, and the strategy to be followed. Though by then I had met her and liked her, even though she had also called asking me to be present at the sessions in March, I refused when the President first asked me, and was able to cite another commitment. But I did suggest to the President that he send Jeevan and Javid Yusuf, who had been a long-standing member of the SLFP and had served as our ambassador in Saudi Arabia at one stage. They both went, and the former established a close friendship with Tamara.

When the President asked again I could not refuse. Jeevan told me that he had suggested taking the draft of the LLRC Action Plan to Geneva, but been told it was not ready. While I was in Geneva I asked Mohan whether I could look at the draft, but he told me it was confidential. I asked then if he would show it to me in his presence, whereupon he said that he was doing it with the Foreign Ministry, and I should ask the Foreign Minister. I did so, whereupon G L Peiris said, ‘What draft?’

I could only deduce that Gotabhaya had told them not to bother, and GL had assumed that this was the President’s view too. Mohan however undoubtedly knew the real situation, and therefore continued to deceive the President about progress while, as with the LLRC interim recommendations, ignoring his instructions. So three months after the LLRC had reported, we had evidently done nothing to take matters forward.

After the resolution was passed, the President entrusted formulation of a plan to his Secretary, who invited Mrs Wijayatilaka, who had been doing yeoman service on the Human Rights Action Plan Task Force that I convened, to assist. The President had also indicated that Civil Society representatives should be asked to contribute, and Jeevan and a couple of others were accordingly invited to one of the first meetings.

When Mohan came in and saw them, he walked out immediately. He had it seems objected, and though they stayed for that meeting, they were not invited for any others. When I asked Lalith Weeratunge about this, he told me that it had been decided the plan should be drafted only by government officials. Mohan it should be noted was not in fact an official, since he had retired by now as Attorney General, but I suppose his leading role was in terms of his most recent appointment, that of Legal Advisor to the Cabinet, clearly a consolation prize since he had not been made Chief Justice as he had hoped. But his authority was such that, contrary to the President’s instructions, Jeevan and the others were left out after that. Lalith assured me though that they would be invited to serve on the Task Force to implement the plan.

Within a couple of months Lalith’s committee had produced a draft which he showed me, saying that he would be putting it to Cabinet the next day. He anticipated no difficulty about having it adopted. I thought it pretty good, and recognized Mrs Wijayatilaka’s footprints all over it, in particular in the inclusion of Key Performance Indicators, a pet requirement of hers while at the Ministry of Policy and Plan Implementation. I rang her then to congratulate her on her work, only to be told that she had no idea the draft they had been produced had been accepted and would be going to Cabinet. Read the rest of this entry »

download (5)The last few weeks have seen much agitation about Non-Governmental Organizations, with threats to introduce new legislation to control them more effectively. The whole exercise seemed to me absurd, since existing legislation is quite enough to prevent abuse. If it is not working, it is because the personnel involved are incompetent, and even much stronger legislation or regulation will serve no purpose unless more capable people are deployed.

Unfortunately the President has been pushed into a position where he can only employ the second rate for this purpose, as he has realized was the case with Lakshman Hulugalle. The only qualification for the job seems to be total subservience to the powers that be, what Dayan Jayatilleka described as the Mafia lawyer syndrome when he first identified the breed, six years ago. He actually demonstrated the posture, hands held crossed behind the back, head nodding in acquiescence, claiming that the model derived from ‘The Godfather’.

How sad the situation of the present incumbent of the position is became clear when I attended the launch of the Roadmap prepared by the Association of Women Affected by War. I sat behind so did not recognize the attractive young lady who was in the centre of the front row along with a couple of envoys. It was only at the end that I realized she was Sanam Naraghi-Anderlini, whom I had met a few weeks earlier at the Oslo Forum where I had been invited to debate against Mr Sumanthiran on the propriety of talking to extremists.

By then I knew that she had been instrumental in developing Security Council Resolution 1325 about the need to involve women in peace initiatives – and also that, though invited for the launch, she had been forbidden to speak. The press had also been barred from attending the event.

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… after the unprecendented action of two Cabinet Ministers who did not vote for the government in a vote of confidence, after which one of them has put the government on probation.

 

Your Excellency

Last year, when I did not vote for the impeachment of the Chief Justice, instructions had been given, before I even returned home, to reduce my Security. I did not see this as a problem, since I have long argued that we now deploy far too much security, which makes a mockery of your great achievement in getting rid of terrorism from Sri Lanka in 2009. Two officers, as I now have, are quite enough for Members of Parliament, with perhaps one more for Constituency members. And certainly Ministers too could do with far less security, given the numbers and the expense involved.

I was happy therefore to contribute even in a small way to reducing government expenditure, and I realized that such a token reprimand made sense given the general requirement to support government in votes. However it is generally accepted in all parliamentary democracies that votes of conscience are acceptable, and certainly so when there is no threat of instability for government.

The case is very different in the case of a No Confidence Motion against government, and it is unthinkable that Cabinet members should refrain from voting. I hope therefore that I will not be the only person to suffer for having failed to vote, given also the great difference between that occasion and this.

On a related point, two years ago you called me to say I should not criticize public servants who are not able to respond. That was with regard to the falsehood told you by Ms Kshenuka Seneviratne, calculated to rouse suspicions about the Indian Parliamentary delegation as well as the Leader of the House. I noted that it would have been reprehensible to remain silent, and you told me then that I should write to the Ministry. I did so, but have not as yet had a response. I was told by the Secretary to the Ministry of External Affairs at that time that he had sought advice from the Presidential Secretariat, given the seriousness of the matter, but had received no response.

I should note that your Secretary was aware of the incident, and confirmed that you had indeed been misled about the delegation, but that he had sought reassurance from the Ministers of Economic Development and of External Affairs, who had confirmed that there was no truth whatsoever in the story you had been told. Given the tremendous sympathy displayed towards Sri Lanka by the head of the Indian delegation, Sushma Swaraj, and the important role she is likely to play in the new Indian government, it is worth reflecting on the enormous damage that would have been done to Sri Lanka had you cancelled your meeting with that delegation as was your inclination after your mind had been poisoned.

Recently I was sent by Mr Kumar Rupesinghe the text of an interview given by the Minister of Housing and Construction, in which he is deeply critical of the Secretary to the Treasury. This is the more reprehensible since, as Mr Rupesinghe pointed out, the Secretary must be acting in accordance with policies decided on by government and by you as Minister of Finance. This is a very different situation from that of Ms Seneviratne who acted on her own in spreading malicious gossip.

I hope therefore that suitable action will be taken to make it clear that the Secretary to the Treasury should not be publicly insulted when following government directives and that such conduct is not acceptable in a Member of the Cabinet.

In all fairness however to the ideas expressed by the Minister of Housing and Construction, I believe he too has now understood the need for reforms, so that we might fulfil the tremendous potential the country had at the time of the last election. But it would be a pity if reforms sent us backward, whereas the commitments to pluralism and wider consultation that were made at the time would help us to move forward and overcome the various threats we face. We should also be aware of the increasing feeling against current structures, and should therefore – given your immense popularity as compared with that of your Cabinet colleagues – work towards a Presidency that can function effectively with full accountability to a Parliament that is strengthened to fulfil its basic responsibilities.

 Yours sincerely,

 

Rajiva Wijesinha

 

 

cc.      Hon Dinesh Gunawardena, Chief Government Whip

Mr Lalith Weeratunge, Secretary to the President

Military intelligence understands well that the diaspora is not a monolith. Indeed my interlocutor noted that only about 7% of the diaspora were supporters of the LTTE. But this made it all the more culpable that government has done nothing about working with the rest, the more than 90% who have wanted only for their kinsmen who remained in Sri Lanka to enjoy equal benefits with the rest of the population. The LLRC recommendation in this regard, about developing a policy to work together with the diaspora, has been completely ignored. Instead those who did well in this regard, such as Dayan when he was in Paris, were the subject of intelligence reports that drew attention critically to their work with Tamils. The fact that in theory this was government policy meant nothing, since very few others were doing anything about this, and there was no coordination of such efforts in Colombo.

Excessive zeal on the part of military intelligence seems to have caused other disasters. We had an excellent High Commissioner in Chennai, but he was summarily removed because, it was reported, the security establishment had criticized him. Similar reports were in circulation about the withdrawal of our High Commissioner in Malaysia, though he himself thought the Minister of External Affairs was the real villain of the piece.

In Chennai, no efforts had been made to engage in the dialogue that the High Commissioner, who was Tamil, tried to initiate. When I spent a few days there a couple of years ago, with my ticket paid for, not by government, but by an agency that had wanted me in Nepal but was willing to fund a journey through Chennai, I was told that I was the first senior representative of government who had gone there for such discussions. The academics and journalists who attended the meetings were willing to listen, but soon afterwards the High Commissioner was exchanged for a Sinhalese, and the initiative stopped. It was only a couple of years later that government finally got round to inviting the senior newspaperman Cho Ramaswamy to send some journalists to report on the situation, which High Commissioner Krishnaswamy had advocated much earlier. What they published made it clear that we had erred gravely in ignoring his advice for so long. The obvious benefits of having a Tamil in station in Chennai, which without him even doing anything made it clear that allegations of systemic discrimination against Tamils were misplaced, never occurred to a Ministry of External Affairs which seems more keen to assuage possible ruffled feelings within Sri Lanka than develop and implement a foreign policy that would take the country forward.

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While I continue to believe improving consultation as well as efficiency at local level should be the most important priority for government, I will interrupt the discussion of appropriate mechanisms for this briefly, to look at a very interesting initiative that was publicized recently. This was the launch of a website called http://www.manthri.lk which grades Members of Parliament with regard to their performance in Parliament. This is an interesting effort which could be very useful to the country, but I felt that there had been a lack of intellectual rigour in preparing the website, and it could thus seem to be designed simply to promote particular politicians.

Prominence was given to Members of the Opposition, which is understandable since the system is based only on Hansard. Obviously there are more opportunities for Members of the Opposition to speak. The exception that proves the rule is that the only government Member within the first five was Dinesh Gunewardena. While he fulfills his functions admirably, the reason he is ranked so highly is that he spends much time on his feet only because other Ministers are not present to answer questions.

If rankings are to be made, then it would make sense to have three distinct categories,

a) Opposition members who have far more time allocated to them proportionately, given their paucity, than those on the Government side

b) Ministers who have to answer questions and obviously get more time in debates than backbenchers

c) Government backbenchers. I hasten to add, since on the common system of argument used in Sri Lanka, it will be assumed I am critical of the method because I come out badly, that in fact I am in the first half of all, and comparatively high amongst my peers. But this surprises me because, having been the first MP on the government side to ask a question and to move an Adjournment Motion in this Parliament, I rarely do this now because answers took so long to come and were not precise – while hardly anyone ever waits in Parliament for the Adjournment motions that take place after regular Parliamentary business.

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Following the discussion organized by Transparency International on the role of Parliament in reducing corruption, I thought that perhaps there was more I could and should do to strengthen this role. I had been complacent about the fact that I seemed to be the only one writing about the need for action, and urging the Speaker to reconvene the Committee on Standing Orders, to go ahead with the reforms that had been initiated way back in 2010. In this context I was pleased that the Chief Oppositon Whip, who represented the UNP on the Committee, agreed that he should have done more about this, and also that Eran Wickramaratne, who can be relied upon to pursue reforms without partisanship, asked to see the Standing Orders and what had been agreed on already.

But I realized then that I too had been at fault in relying on the Speaker to move, when he has so much else to do. I therefore checked the Standing Orders again, and found that any individual could give a notice of motion for the amendment of the Standing Orders’ and that such a motion ‘when proposed and seconded shall stand referred without any question being proposed thereon to the Committee on Standing Orders’ which meant that that Committee would have to be convened.

I have therefore given notice of such a motion, suggesting changes to several areas in the Standing Orders, including the questions procedure and the manner in which impeachment procedures should be carried out. It may be remembered that it has been universally agreed, on several occasions, that the Standing Orders with regard to impeachment are inadequate, and various commitments have been made about amending them. However, despite the controversy over the recent impeachment of the Chief Justice, which illustrated practically what had previously been seen in the abstract, the matter has been forgotten.

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After a hiatus of some months, during which we had been working through the Government Task Force on the specific areas of Women and Children and Lands, we had the first meeting this year of the forum inclusive of Non-Governmental Organizations which has been trying to help with implementation of the Human Rights Action Plan.

We have throughout had helpful contributions from the Government Analyst’s Department, who had explained problems they faced. One was claims that they had not submitted reports when in fact they had done so, and another was that, after they had travelled to distant locations, they were told that the prosecution was not ready and had requested a postponement. We had therefore suggested at a meeting of the Task Force that the Secretary to the Ministry of Justice institute regular meetings, at which government agencies responsible for cases could coordinate work.

The Secretary had initiated such meetings, though not as often as I would have liked, and we were told this time round that they continued and had been helpful. Unfortunately she was not in a position to ensure a positive response from the Judiciary, and indeed she had been ignored when she had written to the Chief Justice suggesting a committee to look into sentencing policy and coordinate action in this regard in line with government policy of reducing the number of those remanded.

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The latest pronouncement of the UN High Commissioner does not bode well for Sri Lanka. The immediate reason for this is the impeachment of the Chief Justice, but if reports in the papers a couple of weeks back are inaccurate, she has been simmering for some time.

It was reported that she had sent a letter suggesting visits by what are termed Special Procedures, but the response she had received had ignored this and simply suggested that she visit us soon. We knew at the last meeting of the Inter-Ministerial Committee to implement the National Human Rights Action Plan that there had been a letter, but what was being done was not made clear.

This seemed a bit hard on Minister Mahinda Samarasinghe who has been the ministerial envoy to the Human Rights Council for well over half a decade now. It would obviously make sense to keep him in the loop, and indeed consult him about our official position but, as I have noted before, coordination is not something common in Sri Lanka.

This is particularly hard on him now, because he has lost his principal ally in recent years in dealing with problems in Geneva. Mohan Pieris began to join us in Geneva in Dayan Jayatilleka’s time even before he became Attorney General, and continued to attend every session since then, including when Mahinda Samarasinghe was not deployed. He was obviously a crucial player when he was Attorney General, and perhaps even more so afterwards, when he chaired the Inter-Ministerial Committee to implement the Interim Recommendations of the LLRC, and now that he has been in virtual charge together with the President’s Secretary of the LLRC Action Plan. However as Chief Justice he will probably not be able to be on the delegation, which will be tough on Minister Samarasinghe.

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Rajiva Wijesinha

December 2017
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