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CaptureThere is much discussion now on the independence of the judiciary, and this is essential. The politicization of the judiciary in the last couple of decades has been disgraceful, and we must take forceful steps to ensure that political controls, and even political influences, are minimized.

But we must also register that there is more to Good Governance than that. The judiciary too must be responsive to the needs of the people. In particular it must be recognized by all decision makers that justice delayed is justice denied. It must also be accepted that, if the cost of justice is prohibitive, it will become the preserve only of the rich. Simply equity demands that unnecessary costs are avoided.

During the election I was privileged to meet Nagananda Kodituwakku, who is now best known as a Public Interest Lawyer. But he has also served the people ably in a previous incarnation, when he was a senior official in the Customs, who had to seek political asylum when his energy and integrity came in the way of the money making of politicians and those with political connections. I believe this government would do well to go into some of the problems he had to face. Given his capacity to collect evidence, this might help to pin down some of the corruption that has thus far escaped censure.But my subject here is good governance, so I will confine myself to the suggestions he has made to improve our legal systems. I have sent these on to the Minister of Justice, but I have had no reply. He was positive when I reminded him of the matter, but I fear that, as happened with the last government, the incapacity to multi-task will lead to lots of productive reforms going by the board.

The first suggestion Mr Kodituwakku made in the paper he sent me was extremely simple, and could easily be implemented.

Abolishing the Court Vacation system.

As he explained, ‘The present Court Vacation system is a legacy from the British Colonial Rule. The UK has abolished this system long time ago, taking into consideration the valuable time being lost as a result of the said vacation system. In Sri Lanka however, this practice continues unabated, causing tremendous delays in dispense of justice.’

He also suggested that specific call-in time be allocated for all cases, and productive use of court time.

As he put it, ‘In Sri Lanka litigants, government officials, lawyers waste away their valuable time in Courthouses until their cases are being called. In the established democracies like UK from where we have inherited our judicial system the parties to a case are notified with a specific time to attend Court for their respective cases. Sri Lanka ought to adopt a similar system to save precious time and energy of the people attending court. In Sri Lanka the irreparable loss of man-hours is immeasurable due to the absence of such a system.

Connected with this perhaps was his suggestion that there be a ‘Compulsory time scale for Court sessions – Sittings in the entire Court system shall be made from 09.30to 4.00 pm. At any given time, a large number of cases are held up in the superior Court system downwards causing enormous economic and financial to all concerned.’

Thirdly he noted the need for More effcient Record Keeping

‘The current system is based on paper based case records. This system has led to various issues such as losing of case records, storage issues and inability to provide information swiftly as and when necessary causing tremendous to Court Staff, from Registrar downwards.

Therefore, it is suggested to introduce an effective computer based record keeping to the entire Court system.’ What he does not note is the possibility for corruption in the prevailing system, with records readily being lost on demand as it were.

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qrcode.26604602Nearly two months back the Liberal Party wrote to the President urging that he not hold elections in haste, and indicating that he should proceed first with the various reforms he had pledged. We got an acknowledgment, but not a response, though I suspect a call from a close relation urging that I support the President was a consequence of the letter. The refusal to consider issues seriously, while simply providing assurances that things will improve, is not however something that can be accepted ad nauseam. Indeed, while in India I was told by a political scientist who had been fully supportive of our destruction of the Tigers in Sri Lanka, that the President, having promised the Indians that he would implement the 13th Amendment, was heard to say as they were leaving that he had fooled them again.

I refused to believe this, and argued that the President would not have behaved like that. My own view is that he is generally sincere in the commitments he makes, and he did his best on various occasions to promote the LLRC. But unfortunately he imagines he is weaker than he is, and gives in to pressures from others, all of whom have their own agendas. So, following his commitment to the Indians, he did nothing when that was repudiated by a spokesman, and he did not bother when G L Peiris did not respond to a request for clarification sent by the Indian Prime Minister. As Lalith Weeratunge said with regard to the clear commitment to change the Chief Secretary of the Northern Province, he could do nothing because his hands were tied – but this was probably not, initially at any rate, by the President.

It is this failure to move straight, despite what I continue to believe are admirable political instincts, that led the Liberal Party last week to confirm its earlier decision and support Maithripala Sirisena. Though it is argued that the Sirisena candidacy is the result of a foreign conspiracy, it is in fact a continuation of the present regime that will lead to increasing interference in our affairs by the more prejudiced elements in the international community.

And we now have hardly any defences against such incursions that are based on rationality. I think the recent removal of Chris Nonis, following his able defence of the country when dealing with the international media, suggests that those close to the President are determined to destroy our defences. In some cases this may be due simply to jealousy, but I suspect this was stirred up for ulterior motives, the same motives that led to the dismissal of Dayan Jayatilleka and Tamara Kunanayakam.

Underlying all this is the absence of a coherent strategy. Tamara Kunanayakam relates how Sajin Vas Gunawardena had said that the government had no strategy when she asked what was the strategy to deal with the draft resolution against Sri Lanka that the Americans were preparing way back in September. Her staff had told her that this had been shared with Kshenuka Seneviratne on her private email address, but not communicated to Colombo.

Instead of looking into that aberration, the Ministry however was annoyed with Tamara for having found it out, and did not want to think about the matter. It was the President who had told Tamara to come to Colombo to discuss the matter, and been very clear in his instructions, to the effect that Tamara should not negotiate with the Americans, but should instead rally support amongst our usual allies. This Tamara did, and as had happened in 2007, when the British Ambassador had to allow the resolution he had tabled in 2006 to lapse, the American resolution, which the Canadians had tried to bring forward, was not moved.

But before that the Ministry had tried to prevent Tamara seeing the President, and had indeed ordered the Secretary to put her on a flight before the scheduled breakfast meeting with the President. Fortunately the Secretary then, Karunasena Amunugama, was a practical man, and when he found the ticket could not be changed, he had allowed Tamara to stay on. But contrary to the very clear instructions the President had given, which were in line with the strategy we had employed between 2007 and 2009 to defend our interests, Sajin had simply scoffed and said we had no strategy because the President changed it all the time. 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 »

Problems connected with the attempted impeachment of the Chief Justice require solutions. I believe that impeaching the Chief Justice is no solution to anything, and will in fact lead us to forget the actual problems.

In suggesting the following practical solutions to the problems, I realize I am probably wasting my time, since we have developed a culture of addressing problems with sledgehammers designed for other uses. We generally land it on our own toes as well as the toes of those connected peripherally with the problem, instead of the people or the procedures that are the root cause of those problems.

Thus the United Nations as a whole is attacked for the Darusman Report, when they should have been our most trusted allies in refuting the propaganda of those who pushed the Secretary General into such a selective analysis. Tamara Kunanayagam gets dismissed for the Geneva Disaster, and those who contributed to it are permitted with impunity to deceive the President about leading lights in India as well as in the Sri Lankan Freedom Party, which should be the President’s closest allies in fulfilling his developmental agenda.

I have no doubt then that the same propagandists who accused Dayan Jayatilleka and me of precipitating the crisis in Geneva will claim that the solutions I propose are based purely on personal ambition. But that will be a small price to pay if there is greater awareness of the need for proper procedures as well as clear guidelines for the conduct of public officials.

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Some years back the Council for Liberal Democracy produced an influential book called ‘Ideas for Constitutional Reform’, edited by Chanaka Amaratunga. A shorter version of this was issued a few years back, and I have now put together a brief outline of further Ideas for Constitutional Reform, based on principles that have emerged in recent consultations with regard to a National Reconciliation Policy, and on the needs expressed in Divisional Secretariat Reconciliation meetings. These are given below, and will be followed by brief articles on the various topics covered.

  1. Electoral Reform

To ensure responsibility of members for a limited area and accountability to a constituency

And

To ensure that Parliament as a whole is proportionate to the wishes of the electorate

The House of Representatives shall consist of two hundred Members elected on a mixed system. One hundred of them will be elected on the basis of constituencies in which the electors shall be similar in number. Such constituencies shall be prescribed by a Delimitation Commission which shall combine the Grama Niladhari Divisions into Constituencies which have commensurate numbers or as near commensurate as possible.

Voters shall vote for individuals in these constituencies. They may give up to three preferences in order, of which only the first shall be counted initially. This is in accordance with the alternative system of voting. After the first count, unless a candidate has received over half the votes cast, the candidate with least first preferences will be eliminated, and such candidate’s preferences redistributed. The process shall be repeated until one candidate shall have received 50% plus one of the total votes cast.

Voters will also cast a second vote for a political party. The remaining hundred members of the House of Representatives shall be chosen so as to reflect the proportion of votes obtained by each party. Each party shall submit a list known as the Party List. After the constituency representatives are declared elected, parties shall receive an allocation that brings up their total representation in Parliament to the proportion they received in the Party vote. .

In the event of a party receiving more seats on the Constituency Vote than the proportion it receives on the Party Vote, it will not receive any seats on the Party Vote, but the surplus shall sit in the House of Representatives which, for that Parliament alone, may have more than 200 members. If independent candidates are elected on the Constituency Vote, without being part of any Independent Group obtaining Party Votes, they too may constitute a surplus for the life of that Parliament.

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Sri Lanka Parliament(This was not delivered as there wouldn’t be time for me to speak, but this is what I would have said).

Both this resolution, Mr Speaker, and the manner in which it has been pursued, make very clear the need for radical reform. We have long known that we have an illogical Constitution that confuses all sorts of political principles. Sadly we have not taken seriously the crying need to change it wholesale, not simply engage in piecemeal reforms.

Nowhere is inconsistency more obvious than in the relations between the three traditional branches of government. Underlying this inconsistency is a failure to ensure accountability, despite the claim that power belongs in all instances to the people. The Executive is accountable in that it submits itself to democratic elections every few years, but the period of six years that is prescribed, and the provision, based on Westminster norms, of having an early election, make this accountability less than perfect. And the system of elections we have for the Legislature makes a nonsense of accountability, since that requires a closer relationship between constituencies and their representatives than the preferential vote system makes possible.

With regard to the Judiciary, there is almost no accountability. Over the last year I have tried, in pursuing action on our National Human Rights Action Plan, to suggest that the Judiciary lays down norms with regard to its activities, but replies when received were not positive. The Secretary to the Ministry of Justice got no reply when she suggested that the Chief Justice convene a meeting on sentencing, and the Institute of Human Rights was not allowed to proceed with a training programme on this subject. Given the gross overcrowding in our prisons, the failure of the Judiciary to act as requested is most depressing.

Depressing too is the failure to institute codes of conduct. The report of the PSC suggests, even on the best possible interpretation, indiscretions that should never have been perpetrated. It is true that many have been responsible for such indiscretions, but in the absence of strict guidelines, that are carefully monitored, a culture of propriety is hard to sustain.

I would have hoped that the Judiciary would draw up its own guidelines but, if this does not happen, it will be necessary for Parliament to do this. The judicial power of the people is exercised by Courts set up by Parliament, and therefore it is our responsibility to draw up guidelines for the exercise of such power even while scrupulously refraining from interference in decisions. It is best then if we leave it to the Judiciary to enforce those guidelines, and only ensure careful monitoring through the financial controls exercised by Parliament.

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 By D.B.S.JEYARAJ

 An Interview with Prof.Rajiva Wijesinha M.P. – Part  3

Q: Some observers of the Sri Lankan situation opine that a creeping illiberalism is pervading society at large under the Rajapaksa regime. As a liberal and an advocate of liberal democracy, are you not perturbed by the erosion of those very values in Sri Lanka? Are you not concerned over the creeping illiberalism?

A:  I don’t think there has been any particular erosion of values recently, compared to what we went through under Jayewardene. Indeed we have a vibrant media, and relentless criticism of whatever is seen as abuse, which was certainly not the case in those days. Personally I believe that things began to ease under Premadasa, even though the Colombo elite who relished Jayewardene’s authoritarianism complained of Premadasa. But I remember the media freedoms he introduced, the liberalization of communications and the fact that we had free elections.

JUDICIARY

The point was that Premadasa , like President Rajapaksa, thought what he was doing was for the benefit of the people at large, and they were not frightened of the people or of elections. Of course both naturally attract people who are not as interested in the people as in themselves, and abuses occur, but we do have safety valves in the form of an independent judiciary which did not exist in Jayewardene’s time.

Q: But the Judiciary is under attack?

A: Unfortunately you now have a clash with the judiciary, but we must remember that, though impeachment of the Chief Justice seems excessive, we are dealing with a lady who was put on the bench with no previous judicial experience simply because the then Minister of Justice recommended her. Such a person rising through seniority to the position of Chief Justice is an anomaly, whereas President Premadasa was able to appoint a totally respected person, who was the most senior judge on the Bench at the time, as Chief Justice when a vacancy arose – confuting those who said he would make a political appointment.

” I think we should be working towards constitutional reform based on recognizable constitutional principles. One of these should be strengthening the legislative role of the legislature by strengthening the role of committees in legislation”

LIBERALS

Q: As Liberals do you not find cohabitation in this Govt incompatible with your beliefs? Do you not feel uneasy in the midst of fellow travellers of liberalism/ liberal democracy in the conferences and other events you frequently attend, as the government that you are part of has violated with impunity, those very values you and fellow liberals advocate?

A:  There is no reason whatsoever to feel uneasy, because I am proud to be associated with a government that has done more for the people of Sri Lanka than any other in recent times, and set an example to the world of how to deal with terrorism. I think we could do more for the Tamil people, and to make the minorities in general regain confidence in Sri Lanka as a whole, but we have certainly done more than critics of the government declared would be done when we got rid of the Tigers.

Liberals almost all over the world have to work in coalitions, which means being in government with those one does not agree with totally. We all know that compromises are necessary, but one does not compromise with regard to fundamental principles, and I am known well enough by Liberals internationally for them to be confident that I will not compromise on fundamentals. But I will not hesitate to criticize those who attack Sri Lanka unreasonably, with no attention to the singular positive achievements of this government. Read the rest of this entry »

It was certainly unusual that someone with no previous experience of the Courts should have been elevated to the Supreme Court …

The recent decision of the President to seek further advice before deciding whether to proceed with the impeachment against the Chief Justice is most welcome. It suggests that he feels concern about the position to which various elements in government were propelling the legislature.

There is no doubt that there have been several misjudgments with regard to the treatment of the Chief Justice. It was certainly unusual that someone with no previous experience of the Courts should have been elevated to the Supreme Court, and I have even heard it said recently that this was designed to prevent the elevation of the then Secretary to the Ministry of Justice, who would in the ordinary course of things have become the first woman Supreme Court Justice. But she fell foul of the Minister, and did not receive her due, though all those working on implementation of the Human Rights Action Plan have found her more conversant with the law, as well as administration, than anyone else in government now.

Be that as it may, there is nothing intrinsically wrong with putting an academic on the bench, and in fact Mrs Bandaranayake’s judgments have generally been acceptable, with nothing as outrageous as that which emanated from a previous Chief Justice. However it should have been recognized that to fit her in on a par with others with regard to seniority was not particularly wise, if seniority on the Bench was the only criterion for being elevated to Chief Justice. Certainly, given the tender age at which she was appointed, it was inevitable that, if that were the only criterion, she would be Chief Justice sooner than later, and have a lengthy tenure.

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Rajiva Wijesinha

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