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 I was told recently by a diplomat that, amongst the worries in connection with the appointment of Mohan Pieris as Chief Justice, was the feeling that he had been put there to subvert any judicial process that might be implemented with regard to War Crimes. This struck me as ridiculous.

But it washttps://i0.wp.com/bit.ly/ZjEKY4.qrcode also indicative of the deep distrust and lack of logic that bedevil our relations with the world. It is based on an obsession with War Crimes that is a creation of two equally pernicious initiatives. The first is the determination of the LTTE rump to avenge the destruction of their hero and the terrorist separatist agenda. The second is the cynical efforts of some Western politicians to use the charge to exert pressure on us.

As the LLRC report indicates, and all actual evidence suggests, if there were abuses, they were committed by individuals, and should and would be dealt with by military courts. Though it is claimed that we have delayed unduly in this regard, that is absurd, and those who complain know this perfectly well, given how long it has taken the British and the Americans to deal with abuses by their personnel. Of course our failure to act with regard to what happened in Trincomalee is another question, and our delay there is unacceptable, but that had nothing to do with the war, and did not involve the military.

Where we are at fault  in not publicizing what we are doing. We should learn from what the Americans and the British did, and perhaps even emulate them in acquitting everyone except one suitable scapegoat – and the Americans avoided doing even that in the celebrated case of the team that cut off the thumbs of their victims.

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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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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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 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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In short, not only should Mrs Bandaranayake not have anything to do with any case involving her husband, but her husband should have been prevented from accepting any government position. Similarly, she should not be eligible for any further government position after she has served on the bench.

In short, not only should Mrs Bandaranayake not have anything to do with any case involving her husband, but her husband should have been prevented from accepting any government position. Similarly, she should not be eligible for any further government position after she has served on the bench.

Of the charges against the Chief Justice, that relating to her husband, seems particularly serious. Given that, during the inquiry into the National Savings Bank conducted by the Parliamentary Committee on Public Enterprises, it transpired that Mr Kariyawasam had acted most irregularly, and might have to face serious charges in Court, it could be argued that his wife should not continue as the head of the Judiciary.

Morally that might be desirable, but unfortunately, as Alfred Doolittle might have said, morality has nothing to do with it. Indeed, in the modern world, it seems old-fashioned to treat members of the same family as responsible for each other’s conduct. Such niceties can only be enforced by rigid rules of conduct. If such rules are not in place, then we cannot expect people in public life to create and live up to their own code of conduct.

I think we are entitled to expect those in authority not to interfere with due process when their kin are under investigation, and were the Chief Justice to pick and choose magistrates to judge her husband, that would I think be misconduct. But I see no evidence of such attempts at manipulation, and I don’t think we can expect her to resign to avoid such an eventuality. Simply recusing herself from decision making in such a situation would be all we could expect – though again, were he to be found guilty, morally it might be desirable for her to resign. To resign beforehand would seem admission of his guilt, and that is something that could not in all fairness be expected of her.

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By D.B.S.JEYARAJ
National List MP Prof.Rajiva Wijesinha has been in the news lately for his independent approach and  outspoken views. In this interview the academic turned politico speaks out openly on a number of issues including the impeachment motion against the chief justice, stalled Govt-TNA talks, National Reconciliation, about the President being reportedly annoyed with him and whether he desires a cabinet portfolio.

Q: Let me begin with a topic that is close to your heart as well as mine. National Reconciliation! You are an adviser to the President on reconciliation and have taken much effort in this regard. Could you talk about your work in this sphere and the progress achieved so far?

The Divisional Secretariat Reconciliation meetings I have had have been very useful, in part because they allow for attention to the problems that affect the day-to-day lives of communities, and in part because some government agencies have been quick to respond with solutions. But by and large my work has not moved as quickly as the situation demands, because there is no specific responsibility in government for Reconciliation.

Q: As the Presidential adviser on Reconciliation have you made any suggestions or recommendations to rectify this situation? I did read about a report you had  submitted. Could you elaborate please?

I believe a Ministry for National Reconciliation  is essential and I have suggested this to the President in the Report I have submitted, together with suggestions as to who should be appointed, either as Minister or as Deputy if the President wishes to keep the portfolio himself.

I have made 21 recommendations altogether, including strengthening of Divisional Secretariats so as to promote more responsive and accountable government with regard to the immediate problems of communities which now feel alienated from the decision making process. I have also dealt with three areas of particular concern, namely land issues, livelihood development which must be promoted hand in hand with infrastructure development and with much greater efforts for skills development to empower people to take advantage of the opportunities that are being opened up, and psycho-social support which has been comparatively neglected.

More concerted efforts to promote language learning and develop better communication between different communities is also essential, and we have to think outside the box to achieve this, given the continuing incapacity of the Ministry of Education to train and deploy sufficient teachers.

                            RECONCILIATION                                

Q:You also formulated a draft National reconciliation policy that had many commendable features. What is the position on that?

I think my greatest disappointment has been the fact that the draft National Reconciliation Policy prepared in my office with the involvement of a multi-party multi-religious group, and endorsed by a range of politicians, media personnel, religious leaders and members of Civil Society, has been ignored.

The President said he had passed it on for comment, but he has warned me that things get lost in his office, and reminders have not helped to resurrect this. I am sorry about this, because endorsement, of course with whatever amendments Cabinet might make, would make it clear that Reconciliation is a national priority, with a home grown framework through which to implement the LLRC Action Plan as well as think beyond that for long term attitudinal change on all sides. Read the rest of this entry »

Chief Justice – Shirani Bandaranayake

It is ironic that, having been the only government Member of Parliament to complain over the year of the failure of the Judiciary to administer justice either effectively or efficiently, I seem now to be the only one who thinks impeaching the Chief Justice would be a mistake. This struck me when Ravaya was interviewing me about the matter, which was when I also realized how quickly history is forgotten, and in particular the perversion of justice that this Constitution seems to have entrenched.

My first active political intervention in this country occurred when I resigned from my job with Peradeniya University to protest the manner in which Mrs Bandaranaike’s Civic Rights had been taken away for seven years, the maximum punishment possible under the law. That was the most egregious instance of Parliament acting as a judicial body, and it was a horrifying sight. I can still recall then Prime Minister Premadasa claiming that one reason to punish Mrs Bandaranaike was because she was an example of absolute power corrupting  absolutely. He said this with no sense of irony while nearly 140 government parliamentarians cheered and jeered. The TULF had left the chamber, so Mrs Bandaranaike had barely half a dozen supporters, and the dignity she displayed on that occasion has remained the most impressive of my political memories. Read the rest of this entry »

Rajiva Wijesinha

June 2019
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