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I make no apologies for coming back to the excellent paper prepared by Nagananda Kodituwakku about the measures needed to restore public confidence in the Justice system. Previously we looked at the systems that need to be put in place to ensure the swift dispensation of justice. Now I shall look at ways in which we can promote confidence in the personnel involved.
First of all Kodituwakku deals with the need to ensure integrity and independence in judges. This requires a
Transparent recruitment process to select judges to Superior Court System
He notes that now supreme court vacancies are filled at the pleasure of the President, which leads to a disregard for merit. We are well aware that this needs to be changed, and it is essential to have checks on the power of the President to make appointments at will. But we should not depend only on the predilections of others. It is necessary to have systems in place, guidelines that are clear and based on rational criteria, with a requirement that any appointing authority follow established guidelines in a transparent manner.
One point Kodituwakku raises, which had not occurred to me before, is that it is a mistake to fill most vacancies with officers from the Attorney General’s Department. He notes that in the United Kingdom from where we claim to have derived out traditions, ‘not a single judge to the Judiciary is appointed from the Crown Prosecution Service headed by the Attorney General of the UK.’ He suggest instead that ‘Priority should be given to eminent career judges over other applicants. Public officers serving in the AG’s Department and the members in the private bar should be afforded an equal opportunity to submit their application for vacancies. But no preferential treatment whatsoever shall be afforded to the lawyers serving in the Attorney General’s Department over the other applicants. This merit-based system shall be implemented to the appointments to the lower Courts as well.’
Another vital factor Kodituwakku notes is that there should be
No inducements with gratifications after retirement
The system of giving appointments after retirement should stop. This should not preclude work in the private sector, and short term assignments such as special inquiries should be possible. But judges must accept that they should not be appointed to any salaried position in government after retirement. As he puts it, the prevalent practice ‘conveys a wrong message that those who are inclined towards the executive would get a preferential treatment over others after their retirement. This naturally affects the independence of the Judiciary.’
In addition to his strictures on the judiciary, Kodituwakku also notes the need to restore public confidence in lawyers. He begins with the Attorney General’s Department, the lawyers who represent the public as a whole. They prosecute in criminal cases, and appear for government and government departments, which means they appear for the people. Read the rest of this entry »
There 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.
I begin here with the Preface to Political Principles and their Practice, which Cambridge University Press in India published a decade or so back. The language is simple, because it was intended as a basic introduction to those new to the subject. I have made some changes to the published version where updates or clarifications seemed necessary.
This book is intended to provide a basic introduction to the structures and functions of government, while the latter part of the book contains a brief overview of the development of such structures in Sri Lanka. This overview also provides a short analysis, intended to evoke further discussion, of the manner in which these structures, as established over the years, fulfilled or fulfil (or not, as the case might be) the functions of government.
A brief account of the manner in which the functions required of government developed historically is also included in the earlier section of the book. In the explication of structures, the different forms of a state, and the various institutions that exercise the powers of government, are described. In doing this, the doctrine of the separation of powers, and its advantages in terms of the purposes of government, are explored.
The different forms in which the executive might be constituted, and the suitability of these forms for the different functions of executive power, are also considered. The various ways in which a legislature may be constructed are also examined, together with some voting systems in current use. Read the rest of this entry »
Professor Rajiva Wijesinha, son of late Sam Wijesinha, Former Parliamentary Secretary General is a member of the Liberal Party of Sri Lanka. In June 2007 President Mahinda Rajapakse appointed him Secretary-General of the Sri Lankan Government Secretariat for Co-ordinating the Peace Process, and in June 2008 he became the Secretary to the Ministry of Disaster Management and Human Rights. In February 2010 he resigned from the Ministry and the University, and became a member of Parliament on the National List of the UPFA following which he was appointed a member of Parliament. In an interview with the Daily Mirror, Professor Wijesinha speaks about the lack of control among ruling party leaders, the loopholes in the educational system and the civil service in Sri Lanka.
Q. Describe your entry into politics
I have always been interested in political history and I have done a lot of political writings. In fact one of my best papers was political philosophy. Basically I have been involved with the Liberal party of Sri Lanka. Liberalism means freedom and for freedom you need several factors. When talking about an executive presidency, about having too much power, ever since the time of Montesquieu, there has been an idea of the removal of arbitrary powers. But the first thing we should all realise is that in any government the most important and in fact the most powerful is the executive. You need to check that executive; whether it is a child, a president or a prime minister from exercising arbitrary power. Also what are the instruments that will control the arbitrary power of the ruler on behalf of the people?
Montesquieu suggested two institutions which needed to be powerful; the Parliament, whose role was to pass the laws and money and oversee the proper spending of that money-which was why the budget was such an important occasion in our lives. The other is the Judiciary, who should independently administer the law. Another extremely powerful institution that plays a role on behalf of the people is the media. Another element is the public service. Increasingly the concept developed around an independent public service with no servants for a king or a minister.
The need for a free economy should be addressed. However, I am delighted by the fact that statism changed its phase after JR’s open economy was established. At that time I was writing for my PhD and by the time I got back I found him to be rather authoritative and I was horrified by the type of things he did.
Q. What was the concept of the Liberal Party?
We were the first people to say, “control the power of the executive”. Before the 17th Amendment, the President appointed anybody he wanted for anything. We were the ones who said that on a political philosophy it was totally unacceptable. We pooled in a lot of ideas then, which are now universally accepted. Chanaka Amaratunge had a deep knowledge about the constitutions all over the world. We said that the election system was mad and proposed for a mixed system. We said a lot of things and gradually people came to accept them.
Q. What do you think of this newly emerging ‘defection-culture’ and the political scenario as of late?
I think the country is pleased. In my opinion, every individual who crossed over to the Opposition had a strong identity. I think Maithripala Sirisena is a very capable person, yet the cross-over by Tissa Attanayake is quite ineffective. The opposition need not be sorry that he is gone.
Q. Do you regret your transition from being an academic to a politician?
No. I have done a lot in academia and I was responsible for taking the initiative to transform university education, through the introduction of ‘co-courses’. The British education system relies on a very good school education. In America, students are taught basic skills in universities and this was initiated from Harvard in the 19th Century. What they said was that as soon as you came into a university you didn’t specialise, but you have to learn a little bit about science, mathematics and the like.
The Harvard by the end of the 20th Century had expanded the co-courses into 10 separate things and the students had to do a little of each. These courses included communication, inter-cultural skills, inter-personal skills and the like. When I went back, I introduced this system at the University of Sabaragamuwa. So every student had to do English and they also had to do both Sinhala and Tamil, because my Tamil and Sinhala students could not write anything. Along with these I also introduced critical thinking. At first they used to curse me for this but then later they said that this was what they got when they went for jobs. Also many of these students did not know how to use a book. For example, when asked to find the largest country in the world the whole class was busy turning pages, but of course there was a contents page. Therefore, I also introduced library skills. Since these skills were introduced, which I think are very important to any student, the University Grants Commission (UGC) has announced that they were mandatory.
In any society 80% has to go into business, technical work and you must educate people for that. You cannot educate 100% of a population. We see graduates coming unemployed and our rulers offer them jobs. The brightest minds in the country are going and sitting at the Divisional Secretariats as Samurdhi officers and when I ask them what they when I ask them what they are doing, they say ‘data collection’. When asked for the purpose, they keep staring at me. So we can see that no one has been doing anything about this mismatch in education. In fact I think what I did was quite useful. Read the rest of this entry »
It 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.
- 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.
- 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.
- 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.
- It must be specified that Secretaries to Ministries should be appointed by the Public Service Commission, not by the Cabinet or the President.
- 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.
- 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.
- 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.
- The Petitions and High Post and Standing Order Committees should be chaired by Opposition members and their proceedings should be made publicly available.
- 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.
- 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.
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.
After the recent fiasco over the delay in providing Members of Parliament with bills they were supposed to discuss and vote on, I engaged in some study of practice here and in other countries, and also referred to relevant authorities. What became clear is that Sri Lanka has in essence taken away from Parliament its power over legislation, and the neglect the Speaker diagnosed in Parliamentary officials, claiming that he would have taken firm action if he had the power to do so, is not seen by them as neglect. They see Parliamentarians simply as lobby fodder, fulfilling their functions simply by speaking and voting for or against a Bill, with no responsibilities to actually ensure that Parliament produces fit and proper legislation.
I say this because a former Secretary General of Parliament has written a book which is supposed to set out the functions of Parliament, in which the chapter on making laws completely omits the role of Parliamentarians. Indeed she even claims that Bills are usually given to Parliamentarians after what is termed the First Reading – when they are placed before Parliament. She has obviously not understood that the First Reading takes place precisely when Parliamentarians have the Bill placed before them, and to see that as a sought of afterthought is a complete denigration of the Legislature as it is constituted, by Representatives of the People.
The book in question is handed out as a sort of bible to new Parliamentarians, but I suspect no official in Parliament has actually studied it and set it against what goes on in other Parliaments. Perhaps no one there now has either the capacity or the inclination to engage in such studies, given the contumely with which J R Jayewardene treated Parliament and Parliamentarians when he imposed the current Constitution on the country, and also its several amendments, which subverted any possible principles the Constitution may have contained.
When I was asked recently, in fulfillment of my work on the Human Rights Action Plan, to assist the Ministries of Justice and of Child Development and Women’s Affairs to finalize the draft of an act to replace the Children and Young Person’s Ordinance, I was struck by the absurdity of a phrase which did not seem to worry anyone else at the consultation.
It related to proceedings conducted before a Children’s Magistrate’s Court (which the law sought to establish), and laid down that ‘The Chief Justice and any three Judges of the Supreme Court nominated by the Chief Justice may frame rules regulating the procedure to be followed’ in such proceedings. Leaving aside the question of the Chief Justice selecting any three judges, where I believe there should be greater precision to prevent arbitrary choices, the clause seemed to me wholly wrong headed in making such rules optional.
I was given what seemed to me two mutually contradictory answers when I made the objection. One was that the word ‘may’ in such contexts was generally held to create an obligation to act. The other was that, if there were a ‘must’ and action was not taken, then the law could not come into effect.
If the legislature wanted such rules in place – and obviously there must be rules, to prevent inconsistencies and irregularities – then it should not only make that clear, but should ensure that those rules were in place. My suggestion then was that the clause should read ‘…..shall frame rules regulating the procedure…within one month of this act coming into operation’.
It was granted that this might be effective, but then the question was raised as to what would happen if the Chief Justice failed to make such rules. The answer seemed to me simple, namely that a failure to abide by laws passed by Parliament indicated incapacity, and should therefore warrant removal. Alternatively, Parliament could decide that, were rules not formulated as laid down in the Act, Parliament would then formulate such rules itself. Read the rest of this entry »
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
- ensure the independence of the judiciary whilst promoting transparency with regard to appointments
- promote professionalism in the judiciary
- institutionalize justiciability by making all decisions subject to review
- introduce alternate mechanisms of seeking justice whilst preserving the ultimate authority of the Courts
Rajiva Wijesinha 
Most Important Issue Facing the new President is to Restore Confidence in the Governmental Process
January 14, 2015 in Comments | Tags: 13th Amendment, accountability, Committees of Parliament, community policing, consultation, COPE, dendro-energy, development, Disaster Awareness and Response, Education, entrepreneurship, Finance Committee, Freedom of Speech, governmental process, grama niladhari, judiciary, land, Law & Order, LLRC, local authorities, national policy, Opposition, PAC, petitions committee, Pradeshiya Sabha, Right to Information, Rule of Law, rural populations, Skills Training, Small and Medium Enterprises, soft skills, state media, vocational training, Women and Children’s Units | Comments closed
For this purpose it is necessary to establish systems that work according to the Rule of Law, and with full accountability to the people. In this respect it is vital that Parliamentary control of legislation and finances be restored.
This does not mean strengthening an Executive based in Parliament, but rather strengthening Parliament to be an effective check on the Executive. This means strengthening the power of ordinary members of Parliament, both government and opposition.
Measures to ensure this were the principle component of the Standing Order changes I had proposed last year, changes which the Speaker ignored in contravention of the existing Standing Orders. My main purpose was to strengthen Committees of Parliament by streamlining them and ensuring that they were not chaired by members of the Executive. In the case of the Finance Oversight Committees, the PAC and COPE, the chair was to be a member of the opposition.
But ensuring open discussion in committees is not enough. It is also necessary to give them teeth, and for this purpose we should ensure that the Executive either follows their recommendations, or else gives reasons in writing as to why this is not desirable or possible. The same would apply to the petitions committee, the directions of which are now simply flouted by the Executive.
I would take this principle further, to promote consultation as well as accountability at local levels. The Local Government Act should be amended to ensure involvement of People’s Representatives in Committees of Pradeshiya Sabhas and Local Councils. I have already suggested amendments in this regard to the Secretary of the Local Government Ministry who had consulted me about the Act. It will also be necessary to define clearly the areas of responsibility of local government bodies, and to give them powers to work effectively in these areas.
In addition, given the number of administrative decisions made at Divisional Secretariat level, there should be consultation mechanisms at Grama Niladhari level, with mandatory feedback at the decision making level. This is the Divisional Secretariat, and I am glad that Mr Sirisena’s manifesto declares the centrality of this level, and the need to ensure coordination of services. With regard to this I have been working together with several Ministry Secretaries on a UNDP Project to improve delivery of services, and I hope the next government studies the excellent report produced by Asoka Gunawardena and implements its recommendations. Certainly we must get rid of the ridiculous system introduced by Basil Rajapaksa, of handing over development funds to Members of Parliament to spend virtually at will, with no coordination and little reference to the plans of the Line Ministries.
Line Ministries should be strengthened, and this requires reducing the size of the Cabinet in accordance with clear rationales, as pledged in the opposition manifesto. We cannot have many ministries dealing with similar subjects, and we cannot have ministers doing what they want – and in particular accepting unsolicited bids for projects, which has become a feature of the way the present government runs things – without adherence to well developed plans. It is imperative that a Ministry of Policy and Plan Implementation be set up, and given teeth on the lines of the suggestions the Secretary to that Ministry and I forwarded to Mr Lalith Weeratunge at the end of 2009.
I have stressed governance issues, because these seem to me the most important in terms of safeguarding democracy and promoting equitable development. For this purpose it is also essential to pass the proposed Freedom of Information Act, and to give it teeth through ensuring public accountability at all levels of government. In addition I hope we will also introduce the Bill of Rights which was promised in the 2005 Mahinda Chintanaya, and which the Ministry of Disaster Management and Human Rights had got drafted by the end of 2009, but which has since been ignored. Read the rest of this entry »
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