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As I have noted, the Vasantha Senanayake proposals that have been sent to the Parliamentary Select Committee are to form the basis of the discussions the Marga Institute is facilitating to promote consensus. The most innovative of the ideas put forward in the memorandum submitted to Parliament is the suggestion that we accept the logic of the Executive Presidential system, and therefore bring the Cabinet in line with the executive system in other countries which have Executive Presidents – the United States and Russia and France and the Philippines, to name but a few.

On a proper Executive Presidential system, unlike the hybrid perversion J R Jayewardene introduced, those put in charge of the different branches of the executive come from outside Parliament. If they are in the legislature, they have to resign their Parliamentary positions, as Hilary Clinton and John Kerry did. Even when the President has a Prime Minister whose tenure depends on the confidence of Parliament, when that Prime Minister has won election and established a majority, he gives up his seat to take up an executive position. And as we saw with Vladimir Putin in Russia, someone who had been elected to Parliament and thereby been chosen as Prime Minister, can easily, and with greater effectiveness, be replaced by a technocrat.

Characteristically, Dayan Jayatilleke opposed the suggestion on the grounds that it would lead to the President filling the executive with his own relations. This was yet another example of an otherwise very distinguished analyst allowing ad hominem arguments to influence his judgment. I should add that his position also fails to take into account the fact that any relations who aspire to executive office will have no difficulty in getting elected, as both our Parliament and many Provincial Councils exemplify. The problem then is that even the very able start making getting re-elected their priority, whereas if Ministers concentrated only on making a success of the areas for which they are responsible, we would have decisions and actions that focus on results rather than popularity.

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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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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 now served two and a half years in Parliament. This would have been half the term in the old days before the United Front government of 1970 extended its own term by two years, and added one year to all future terms. This began the rot of Parliament expanding its own powers and privileges, which the Jayewardene government of 1977 took even further, extending its term to over 11 long and woeful years.

These terms, it should be noted, are not fixed, and the government in power has the right to have an election when it wants. Naturally it does this when it thinks conditions are most favourable. And in Sri Lanka the situation is made worse by the fact that we have two sets of elections to decide on who is going to govern us, namely a Presidential election as well as a Parliamentary one. Naturally both are fixed in terms of advantages to the incumbent, with the added benefit of having one or other of the executive authorities continuing in power during the election.

This situation is unusual, since elsewhere in the world where there is an Executive Presidential system, terms are fixed. This was the case in Sri Lanka when the system was introduced, but J R Jayewardene changed it for purely selfish motives, to ensure the perpetuation of his power.

He also changed the electoral system he had introduced for similar selfish motives, when he realized that a proportional representation system without a preference vote meant less effort on the part of those low down on the list, with no hope of being elected. The system of preferences he introduced has been the single most destructive feature of Sri Lankan politics over the last quarter of a century. Read the rest of this entry »

Presentation at a meeting of the Pakistan Liberal Forum – Islamabad, 11th September 2012


I am grateful to the
Pakistan Liberal Forum for having invited me to speak today at your seminar on Challenges for Democracy in the upcoming Elections. Though you have suggested I present a regional perspective, it would be more practical I think for me to talk about democracy in Sri Lanka and the challenges we have faced, which may perhaps have lessons for you in Pakistan too.

Sri Lanka has been a functioning democracy for 80 years now, with Universal Adult Franchise bestowed on us by the British in 1931. That they gave us a privilege you in the then united subcontinent did not receive for over a decade longer is not a tribute to us, but rather a function of our small size and the perception that, whatever happened, we would not be a threat to the Empire. We were given not only the opportunity to select a legislature, but also an approximation to Cabinet government with seven Ministers chosen from amongst the members of the Legislature. Needless to say, though, there were three appointed Ministers, for Law and Finance and what was termed Chief Secretary, while Defence and External Affairs were kept in the hands of the Governor.

We followed the classic Westminster model which, as you know, does not separate the Executive from the Legislature. All members of the Cabinet were chosen from the Legislature, but unlike in Britain this soon turned into membership of the Legislature being seen as the main qualification for becoming a Minister.  Ability was not considered important, and seniority seemed a sufficient claim.

There were a few exceptions, and I can also think of one case where a man of recognized ability was brought into a safe seat, a practice that the British had, so as to bring in people of talent. More importantly they also had a House of Lords to which proven talent could be introduced, which India for instance still continues with, in the form of the Rajya Sabha. As you know, several of the most distinguished Ministers in the Indian cabinet have not faced the hustings, but are in effect appointed.

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Rajiva Wijesinha

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