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qrcode.30309543Chapter 7 of my book on this subject dealt with the Donoughmore Constitution and its workings. The State Council it had set up achieved a lot but by the forties the Sri Lankan political leadership wanted more. Since, unlike in India, there had been loyal service to the British war effort by Ceylonese political elite, as represented by the Board of Ministers, a commission led by Lord Soulbury was sent to Ceylon to commence discussions on self-government during the war. The ensuring achievement of Independence and the power of the Prime Minister under the Soulbury Constitution was the subject of Chapter 8.

It was D S Senanayake who during the Second World War presided over the negotiations towards independence. Though initially only a larger measure of self-government was being considered by the commission, the logic of history and the imminent independence of India prompted Britain to agree to the request for independence.

The new Constitution, under which Ceylon became independent in February 1948, abolished the State Council, which had encouraged a sense of responsibility regarding government in all members of the legislature. It introduced instead an oppositional system that was based almost entirely on the British cabinet system. After the parliament was elected, the person who commanded the confidence of a majority of the members of parliament was appointed prime minister, and he then appointed a cabinet to exercise executive power.

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The last section I had planned to look at in this series is the Judiciary, though that may be the most important in the current context. The basic suggestions I put forward some weeks back, before the crisis had got so grave, basically addressed problems that were developing precisely because we were confused about two principles that all constitutional dispensations should hold sacred.

The first is that the judiciary should be independent, which means that 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 that the judiciary, like all other branches of government, should be accountable to the people. Its decisions should be subject to review, and it should follow procedures so that reliance might be placed not only on its judgments but on the processes through which it reaches such judgments. When procedures are established by law, it must itself obey those laws, though it should have leeway to recommend changes to the legislature when laws prove cumbersome or even unjust. When procedures have not been put in place, it must develop procedures through guidelines that are made known to the public.

For these purposes, so as to

  1. ensure the independence of the judiciary whilst promoting transparency with regard to appointments
  2. promote professionalism in the judiciary
  3. institutionalize justiciability by making all decisions subject to review
  4. introduce alternate mechanisms of seeking justice whilst preserving the ultimate authority of the Courts

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The National Action Plan for the Protection and Promotion of Human Rights 2011 – 2016 ( sinhala & tamil) as well as the full series of  Sri Lanka Rights Watch are available at the Peace & Reconciliation Website.

Last week the Human Rights Commission held a consultation on the current situation in prisons. There was excellent attendance from all relevant agencies, except sadly for the Attorney General’s Department. This was disappointing, but I was not surprised, since the designated officer had failed also to attend the meeting on the same subject arranged recently by the Human Rights Action Plan Task Force.

Though initially the Department had been assiduous in attendance, and extremely helpful, recent developments confirm my view that a largely competent Department has some members who do not care enough about working to deadlines and plans, and cooperating constructively with other agencies for this purpose. This doubtless is why we also have several instances of cases being postponed endlessly, without reference to other stakeholders, as was explained to us passionately by the very competent representative of the Government Analyst’s Department who attended. I hope therefore that the Attorney General will remedy the situation, and take appropriate action, as the Secretary to the Ministry of Justice promised to do when one of her staff, having been designated for the Task Force meeting, failed to attend. Whether such discipline is possible now in Departments that were a byword for efficiency in earlier days is however a moot point.

The meeting began with a succinct introduction by the Chairman to the problem, based on a visit the Commission had undertaken to the prisons. I had been privileged to accompany them on part of the visit, organized very helpfully by the Prisons staff. I have written about this before, and the horror that a matter so easily solved, with moral and social and financial benefits to the country, is left in abeyance for so long. Read the rest of this entry »

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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The National Action Plan for the Protection and Promotion of Human Rights 2011 – 2016 ( sinhala & tamil) as well as the full series of  Sri Lanka Rights Watch are available at the Peace & Reconciliation Website.

There have been some rumblings recently about the conduct of the Supreme Court with regard to the judgment it delivered on the proposed Divineguma Bill. Fortunately I have heard little criticism of the substance of the judgment, and this is as it should be. While I believe that blatantly unjust decisions of the Courts should be challenged, and in particular by academics, using reason (not by politicians resorting to prejudice), this does not seem to me to be such an instance. Where the Courts are allowed discretion, that should be exercised independently and, provided good reasons are given for the judgment, the matter should be allowed to rest.

Of course there is a case for allowing appeals from the judgments of the Courts, but these should be only to superior Courts. Given too that even the Supreme Court could reach erroneous conclusions, occasionally blatantly unjust ones, more often ones that arise from carelessness, perhaps because lawyers failed to make relevant points, there should be provision for review by a larger Bench of the Supreme Court.

In the present instance criticism seems to be on a procedural issue. I am not sure that the issue seems to me particularly significant, but I am glad the question has been raised of how to ensure that the Courts follow the procedures laid down by the legislature, even while ensuring that their independence of judgment is preserved. I have drawn attention to this previously, but of course no one takes such matters seriously until they are personally affected, and perhaps I too would not have thought of the distinction had I not been entrusted with convening the Task Force on expediting implementation of the Human Rights Action Plan.

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One of the saddest aspects of the recent attempt to impeachment the Chief Justice is that it is concerned with punishment rather than reform. This fundamental flaw in our judicial system was diagnosed in the President’s budget speech last year, when he called for reforms that would limit unnecessary remanding and employ rehabilitation rather than retribution for more offenders. But, characteristically, those suggestions were ignored, and so we had regular riots in our prisons during the past year.

I am not of course suggesting that we should try to reform the Chief Justice or seek to rehabilitate her. But we should certainly set in place systems that will prevent the type of abuse that has taken place.

LPSL logoThe abuse has now boiled down to three issues. When the controversy first erupted, the Liberal Party issued a statement which noted that ‘what appear to be the principal and indeed only charges possibly warranting impeachment, those relating to financial misbehaviour, clearly require judicial investigation before any decision can be reached.’ We thought the several charges at the end related to trivial issues and, though the Parliamentary Select Committee report does not quite say this, it makes it clear that there is no need to explore these further.

With regard to the charges relating to financial misbehavior, the first is clearly the most serious. I am not referring to the fact that she bought a house from Trillium, but rather to the fact that she headed the bench looking into Trillium issues. More shockingly, she had removed the bench doing this previously – and doing this swiftly and effectively, I believe – and introduced herself.

That she herself realized this was improper was obvious from the fact that, soon after the charges were brought, she recused herself. This confirms my view that she is a clever person who understands what judicial propriety is, and that in this case she had violated norms.

Whether that is a reason to impeach her is another question. My point here is that no one is addressing the appalling fact that she was able to thus give herself authority over a case in which, if only to a limited extent, she was involved. Equally worrying is the fact that no one raised any questions about this until there seemed reason to impeach her. And I fear government suggested that it was impeachment rather than righting the wrongs that had occurred that was vital, when it brought so many trivial charges, instead of focusing on what might be misconduct, rather than simply bad judgment.

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Rajiva Wijesinha

June 2019
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