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qrcode.31104759After he won election, Jayewardene ignored his own political theories when he found himself in command of almost absolute power following the massive electoral victory in 1977. He was virtually unquestionable for, along with Senanayake, most of those who had held cabinet office in the 1965 UNP government were dead. Jayewardene was more senior than all those who remained and he soon dismissed his only contemporary, a cabinet minister who had been with him in the 1950s.

The fact that he did not implement his proposals was clearly his own decision rather than the result of political compromise. He probably realised that his control of parliament would be enhanced by continuing the requirement that the cabinet should be drawn from parliament. The executive would not be criticised by members of his own party if they were hoping to join it and if its senior members were present with them in parliament. Another reason may have been that he was winning over members of other parties by offering them executive positions. It would have been embarrassing if they had to vacate their parliamentary seats for this new system, in which case candidates would have had to be nominated to the seats by either Jayewardene himself or the party to which they had originally belonged.

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qrcode.31050227By giving parties the right to expel members from Parliament, Jayewardene destroyed an important principle of parliamentary democracy—the independence of members of parliament. The main justification of parliament is that it acts as a check on the executive. In the British system members of the ruling party generally support the government, but they are free to criticise and question it. Turning them into mere lobby fodder, programmed to support the government under any circumstances, makes them redundant.

In Sri Lanka, as time passed, MPs realised that they could invoke the authority of the Supreme Court against arbitrary expulsions. But such a move set them in a position of hostility against the party. This usually meant they had to cross over to the opposition if they wanted to assert their independence even on a single issue. So Sri Lanka has been deprived of one of the great benefits of the parliamentary system, which in other countries allows members who think on similar political lines to maintain basic loyalty to their party while criticizing anything they find aberrant. In Sri Lanka, on the contrary, any dissent leads to oppositioning. So it is rare to find members willing to express different opinions, which happens usually  only if sufficiently large numbers could be brought together for a change of government. But since most parliamentarians are not likely to change loyalties on appeals of conscience alone, financial incentives and promises of future office would have to be used to lure them. Instances of this approach have occurred recently, leading at the end of 2001 to a premature election.

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 qrcode.26591067It is widely agreed that the Executive Presidency has too much power, and those now supporting the common candidate are pledged to reduce this. However , in doing so, they should work on basic political principles, and particularly the doctrine known as the Separation of Powers.

This involves building up the powers of other institutions of State, so that the Executive can be held in check. Such institutions include Parliament as representing the legislative power of the State, and the Judiciary which exercises judicial power. In addition, we need to strengthen the media, and also the public service. This last works for the executive, but it must work on the principle that it is the Constitution and Laws that are supreme, not the instructions of individuals exercising power at any particular period.

All those working for the common candidate must then realize that it will not be enough to go back to the Westminster system. After all we know that the government elected in 1970 and in 1977 both engaged in excesses under the Westminster system. The problem then was the idea that Parliament was supreme, and the fact that Parliament was controlled by the Executive power.

Five measures should then be implemented immediately to ensure that the Executive is subject to constitutional controls.

  1. The first, which is clearly understood, is restriction of the arbitrary power of the President to make appointments. There should be a body to advise on these, and recent experience has shown that it should have provision for representations by the public, and should make clear the rationale for its decisions. If it is made up of elected members, who are not themselves part of the Executive, it should also have veto powers.
  2. There should be limits on the size of the Cabinet (I would suggest 25 at most, though the number could be up to 10 more until the next election). This is essential since it will preclude the Head of the Executive controlling the Legislature by the simple mechanism of adding more and more people to the Executive branch.
  3. The Attorney General’s Department and the Legal Draughtsman’s Department should be brought under the Ministry of Justice, with a proviso that the Minister of Justice should not be involved in electoral politics. In the old days he came from the Senate, but for the present a National List member would be appropriate. The Supreme Court however should not be under the Ministry of Justice, but should be administered by an independent body, with salaries and pensions and privileges not subject to the Executive.
  4. It must be specified that Secretaries to Ministries should be appointed by the Public Service Commission, not by the Cabinet or the President.
  5. Elections, including for Parliament and Provincial Councils and Local Government bodies, should be held at fixed intervals, not at the convenience of the Executive.

 

I would also suggest five measures to ensure that Parliament is strengthened. This means strengthening the powers and prerogatives of Members who are not part of the Executive.

  1. First, the Chairs of the Finance Oversight Committees (the Public Accounts Committee and the Committee on Public Enterprises) should be Opposition members. The Executive will be required to respond in writing to the reports of these Committees, and give reasons if their recommendations are not obeyed.
  2. There should be no more than 25 Consultative Committees. This should be in line with the number of Ministries, but if there are more during the interim period, business should be combined (ie all education matters together, or lands and agriculture and irrigation etc). There should be a limited number of members in each committee, say about 10, and no Member should belong to more than two committees. The proceedings of these committees should be minuted, and the minutes made publicly available. Ministers should not chair the Committee but should attend meetings to discuss policy and procedures. Only senior officials concerned with policy should attend these meetings.

Such Consultative Committees should deal with general policy matters and finance       and legislation, as laid down in the Standing Orders. There should be opportunities for Members to meet officials in the Ministry to deal with matters of individual concern.

  1. The Petitions and High Post and Standing Order Committees should be chaired by Opposition members and their proceedings should be made publicly available.
  2. All questions must be answered within a month, and Ministers not available to answer questions should explain the reasons for this in writing to the President.
  3. The Standing Orders should promote Bills by Private Members, and there should be a Business Committee of Parliament without involvement of the Executive to schedule such initiatives as well as Adjournment Motions.

Colombo Post 27 Nov 2014 – http://www.colombopost.net/columns/op-ed/item/256-a-reform-agenda-1-reducing-the-power-of-the-executive

Presidency 17Recently, at a Consultative Committee in Parliament, one of my colleagues remarked that there was no need of any opposition given my own contribution. I had been critical but what my colleague, from the Gampaha District, failed to understand was that I had criticized neither policies nor action. What I had been objecting to was a failure of action, and had the gentleman understood how Parliaments should be conducted, he would have realized that I was actually trying to help. Surely it should be the business of politicians supportive of the government to promote action in accordance with productive policies, not to sit back complacently when there is no progress.

The incident occurred at the 17th meeting of the Consultative Committee on Education, when I wondered what had happened about a matter I had raised at the previous meeting, held 3 months earlier (meetings are supposed to happen every month, but this Standing Order, like almost all others, is observed in the breach). In May I had brought up the question of opening computer laboratories which had, in at least two cases I knew of, been completed and equipped, but were awaiting a ceremonial opening.

The Minister had claimed on that occasion that such a ceremony was needed so that the people would know who had gifted the laboratory. But when I pointed out that these were not gifts, but built with the people’s money, he had granted my point. So, to cite the minute, he ‘stated that the Chairman of the Development Committee of the area should be responsible to utilize them and instructed to take immediate action to open them’.

This time it was reported that some laboratories had been opened already, and that many more would soon be opened in the Uva Province. This caused a lot of giggles, but that did not matter so long as the children were now able to use the equipment. But surely it should have struck my colleagues that, even if the priority was to get brownie points from these computers, the sooner they were in use, the better for the politicians too, as well as the children. For obviously the people would know if there were an unnecessary delay – it was parents and teachers who had kept me informed in areas I am familiar with – while there is also a risk of computers deteriorating if not swiftly put into operation. Read the rest of this entry »

For each man kills the thing he loves
By each let this be heard
The coward does it with a kiss
The brave man with a sword

The last few weeks have seen an appalling erosion in the image of the government. In a piece that traced our unfortunate decline from the great military and diplomatic successes of 2009, I had written of cracks within the government, but after that we had two Cabinet Ministers refusing to support the Government in a Vote of Confidence. This is unprecedented, and I believe has never happened in this country before. But there has been total silence from senior members of the government, and I suspect I am the only person who has written to the President pointing out the gross breaches of etiquette that have taken place.

What is ironic is that it is precisely the approach of those two Ministers that has so gravely dented the image of this government. I am not sure if the President has realized this as yet, and I do not suppose that he is in position to analyse the situation carefully. But he must realize now that much of what he has been pushed into doing over the last few years has contributed to the disaster that faces both the country and the government.

I propose in this series to look through what has gone wrong, and indicate the destructive impact of just a few individuals. I am still hopeful that reform is possible, because the President is an able politician, and is still streets ahead of everyone else in terms of popularity. I believe too that there is no one else who can put through a just and generally acceptable solution to the political and ethnic problems that beset us. Vasantha Senanayake put it very well in the interview I had with him on his proposal to amend the Constitution to limit the number of Ministers (available at http://www.youtube.com/watch?v=NnO7WuVl6-I0). He said that this President did what was thought the impossible in getting rid of the LTTE. He should also be able then to do what was also thought impossible, namely change the appalling Constitution J R Jayewardene introduced.

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The more one studies the 13th amendment to the Constitution, the more one realizes how completely potty it is. I am not sure though whether this lunacy is entirely the fault of J R Jayewardene, even though I have little doubt that his is the primary responsibility for the failure to consider principles at all in formulating legislation, and indeed policies in general. Highlighting process rather than principle however has been a feature of most constitutions based on the British model, perhaps because the British never had a Constitution, and have muddled along on the basis of practicality.

The particular genius of the British is that they did very well on that basis. Others came a cropper however when they tried to emulate them, which is why countries like ours should have rather studied the American Constitution. That was based on the most enlightened political principles, albeit at a time when social equity was not as well developed a concept as it became after industrialization.

The guiding principle of the American Constitution was that power should be limited to the purposes for which power is legitimately exercised. By legitimately is meant the promotion of the interests of the people, since it was at that period that the idea first developed, after Greek and Roman Republic times, that the state belonged to the people, rather than to a monarch. Thus the American Constitution sits well with the principle of subsidiarity, which is that power should be exercised in any particular respect by the smallest group affected by that power, to the extent that its exercising such power should not adversely affect others.

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Earlier this month the Liberal Party sent some suggestions for reform to the Parliamentary Select Committee meant to recommend solutions to current national problems. They are based on a vital principle that should be followed in all discussions, namely that we should try to assuage the fears of others rather than seek to assert one’s own desires. Through sensitivity to the concerns of others, one can often also ensure sensitivity to one’s own concerns.

Our suggestions reaffirm the primary obligation of the State to fulfil the objectives detailed in Chapter VI of the current Constitution. Safeguarding the independence, sovereignty, unity and territorial integrity of Sri Lanka are vital and all those wishing to broadbase the decision making process should recognize that these principles should be paramount. But equally those concerned with national integrity must also appreciate the importance of decentralizing the administration and affording all possible opportunities to the People to participate at every level in national life and in government. National unity should be strengthened by promoting co-operation and mutual confidence, while discrimination and prejudice should be eliminated.

To avoid concentration of power, the doctrine of Separation of Powers should be followed. The different layers of government should be sensitive to the needs of other layers and the People they represent, and this needs to be encouraged by structures that enhance accountability. Some suggestions below need to be entrenched in the Constitution. Others are more appropriately fulfilled through legislation, but the Constitution should direct that such legislation be put in place. I should reiterate here the importance of the first suggestion, since it is little recognized that we have the only Executive Presidential system in the world in which the Executive President is tied down to a Cabinet that is hamstrung by its Parliamentary responsibilities – which means electoral concerns in the main.

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I continue surprised, though I should not be, given our infinite capacity for self delusion, at the virulence of attacks on India with regard to the several crises we brought upon ourselves. It is claimed that India was gratuitously nasty in supporting terrorists, and that it acted outrageously in 1987 in imposing the Indo-Lankan Accord upon us.

I think India was wrong both in supporting terrorists and in the final form the settlement of 1987 took, but in both instances there was nothing gratuitous about what was done, given our own conduct. It is claimed that India cannot claim to be a friend because she supported terrorism, but that is to ignore that countries will naturally act in their own defence, and we as it were started the problem by abandoning our traditional friendship with India and pursuing Western gods.

The appendix to the Indo-Lankan Accord says it all, in noting the decisions we had made which seemed to threaten India, the shenanigans with regard to the Trincomalee oil tanks, the agreement to allow the Voice of America a virtual self-governing enclave at a time when such entities were a significant part of Cold War armoury, and indeed what seemed efforts to flog Trincomalee to the Americans. This last is particularly ironic since I suspect the Americans – though their capacity to insure themselves against all eventualities, real and imagined, is infinite – did not really want the place since the British had flogged Diego Garcia to them and obligingly got rid of its inhabitants.

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

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

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

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After some depression about not achieving very much with regard to either Reconciliation, or the Human Rights Action Plan, I was heartened by several factors last week. In the four Divisional Secretariat meetings I attended in the Wanni, it was clear that things were improving all the time. Several problems were brought to my attention, but these were largely practical problems, similar to those prevalent in other parts of the country. The impact of inclement weather on agriculture, the need for better roads for rural connectivity, and for better electricity connections, shortages of teachers for essential subjects, are national problems, not consequences of the conflict.

Of course much more needs to be done for the people of the Wanni, given what they suffered, and for the first time I felt sad that I cannot contribute more to education, since the Ministry as it now stands is incapable of increasing teacher supply or ensuring better distribution. But, with regard to the other matters, there is much appreciation of progress with regard to roads and electricity, and also understanding that government paved the way through its support for agriculture for abundant harvests in the last few years, even though this year floods have caused problems.

I should note here the appreciation amongst officials and community organizations of the Japanese Peace Project, which has done much for small scale irrigation works in the last few years. A meeting at the Japanese Embassy later in the week confirmed my view of the intelligence and sympathy of their approach. Equally the Indian Housing Project has generated much confidence that things are getting better, though government must do more to publicize both that and the other large scale housing support provided by the military and other agencies, in particular the Swiss, who also work relatively quietly.

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Rajiva Wijesinha

November 2017
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