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qrcode.29266949I 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 »

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qrcode.29128112The present government has made a complete hash of the Cabinet. Whereas we talked in terms of a Cabinet based on rational principles, we seem to have adopted the rag-bag approach instead, with ludicrous combinations such as Home Affairs and Fisheries (whereas District and Divisional Secretariats should obviously have been part of Public Administration) or Minister of Policy Planning, Economic Affairs, Child Youth and Cultural Affairs.

This is ridiculous, but it is inevitable when Cabinets are formed with priority given to keeping people happy, or by those with inflated beliefs in the capacity of some individuals. What a country needs rather is a clear vision of what government needs to do, and how this can be done most effectively. The Cabinet should be based on the needs of the people, not the needs or egos or even simply the seniority of particular politicians.

I therefore present here the Second Chapter of ‘Political Principles and their Practice in Sri Lanka’, which scrutinizes what government should do, and why.

In many countries, especially those like Sri Lanka which were under British colonial rule, there is a belief that the powers of government are unlimited and so are its duties. This may be because, under the colonial system, absolute power belonged to a foreign state which did not have any responsibilities towards those whom it governed. Colonialism could not conceive that the people are above the government, and that the functions of government should be limited to those the people want or need.

 

The state centred view of government was reinforced in modern times by communist goverments. Communist systems emerged in the twentieth century as the main opponents of capitalist systems. Communism and capitalism originally referred to economic ideas rather than political systems. However, communism developed into a political system that gave absolute power to the government. This was perhaps because it emerged in states where absolute monarchies had prevailed previously. Karl Marx, who initially developed communism as a social and economic theory, had believed that the state would eventually wither away. But communist governments, which emerged first in feudal and agricultural societies, merely reinforced the old model that gave absolute power to the government. Read the rest of this entry »

Join us in calling on His Excellency The President of the Democratic Socialist Republic of Sri Lanka to introduce a Constitutional Amendment to limit the size of the Cabinet to 20, with no more than 20 Cabinet Ministers and no more than 20 other Ministers of Junior Ministerial rank.

You can sign the petition by clicking here.

http://www.change.org/en-GB/petitions/his-excellency-mahinda-rajapaksa-the-president-of-sri-lanka-introduce-constitutional-amendment-limiting-cabinet-to-20-cabinet-ministers

Short link – http://chn.ge/YbSBgY

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First published – Daily News 24 Dec 2012

Last month I judged the semi-finals of the MTV Debating Competition. I don’t usually accept such invitations, given the time these engagements take, but the topic was whether the 13th Amendment should be abolished, and I thought I should get an idea of what young people were thinking.

To my surprise, both teams expressed the view that the 13th Amendment was a mess because it did not sufficiently empower people at the periphery. Those who did not want to abolish it granted that it needed amendment, to which the Proposition said that there was no point in amending it out of recognition, and that it made more sense to replace it altogether.

Of course the views expressed could not be taken as representative of the country as a whole, since the debate was in English, and it was two Colombo schools which were in the Semi=Final. But I remembered then the nationwide polls taken at the time I took over the Peace Secretariat in 2007, when the government had come to the realization that it had to deal with the Tigers militarily. Even polls taken by NGOs that had been in favour of the Peace Process initiated by the UNP government – as I had been, until I realized, very soon I should add, that this was not likely to lead to peace but to further confrontation and suffering as the Tigers used that period to build up their military strength – indicated that the vast majority of the people were in favour of getting rid of the Tigers. But they also advocated a peaceful political settlement with greater devolution.

I should add that the need for this is universally agreed, though as I have noted it is expressed as decentralization by many who urge getting rid of Provincial Councils as they now stand. My own view is that, if we go on discussing the matter in terms of Provincial Councils and emotive terms such as devolution and decentralization, we will lose sight of what is generally agreed, that we must develop mechanisms to ensure more power to the people, with greater accountability. Read the rest of this entry »

The need to train productively and continuously

Having written for nine months about children, I thought of moving to another topic that seems to me equally important in the current context. It is also possibly of greater topical interest. And though I believe the care of children is of crucial significance, and that we must do better in this regard to promote development as well as equity in this country, I think the better deployment of the armed forces would also help us immeasurably to achieve these goals.

I say this because we are faced with a terrible crisis of administration in this country. I have been exploring elsewhere, and will continue to do so, how we can make our administration more responsive as well as more effective, but I think we also need for this purpose to look at best practices that can be replicated. In Sri Lanka we find that only amongst the armed forces.

Former Foreign Secretary Palikakkara, in talking at a recent Liberal Party seminar on political reform, mentioned – perhaps in defence of the recent obvious incompetence of his former Ministry – that if foreign policy is ailing, it’s no different to decay in governance generally. I think this is correct, and that all branches of the government suffer from inadequate training and insufficient attention to thinking and planning skills – as well as our failure to demand that reports be written and monitoring of activities be systematic.

I recently found – or had thrust in my place – two obvious examples of our failures with regard to training and planning. One of the new graduate trainees in the North said that government was wasting their time while not giving them enough to do, which another said they had not received adequate training, and were not properly briefed about what they should do.

More startlingly, when we were considering, at the Parliamentary Consultative Committee on Justice, the report of the Judges’ Training Institute, which the Minister said was much improved, we found no mention at all of basic training courses for new entrants to the judiciary. In the Committee was one of the brightest of the new Parliamentarians, Mr Janaka Bandara, who had been a magistrate himself, and he described to us the inadequacies of the training he had received when he took up a judicial appointment.

The exception to this sorry state of affairs regarding training is the military, and in particular the army, which has continuous training as well as entrenched accountability mechanisms. This I think explains why they have been about the most functional unit in government over the last decade. Given the enormous talent we do have in several places, better training, as well as the allocation of clearcut responsibilities as we have in the army, will surely make good people perform better in all official agencies, and enable at least some work to be got out of those who are not so good.  Read the rest of this entry »

A wave of problems with regard to Human Rights has swept the country recently, most tragically the events at Welikada. The resolution to impeach the Chief Justice has made it clear our constitution has deficiencies with regard to ensuring the independence of the judiciary while also promoting accountability and transparency with regard to judicial decisions. Then we have had the internal UN report on the conduct of the UN in Sri Lanka during the war, and a spate of recommendations in Geneva that we thought had to be rejected.

Those who have read this column will realize that I have discussed these problems, and the dangers they present, and have also suggested remedies. I pointed this out to the President, but was duly crushed by his rejoinder, that since I functioned in English, necessarily I had little impact.

One of the pleasures of talking with him is that he listens, even when there is disagreement (though occasionally, when one argues too much, there is the firm injunction not to try to persuade him), and his rejoinders make a lot of sense. This is a characteristic he shares with the Secretary of Defence, who is even more definite about what cannot be done, but extraordinarily positive about most matters – as I found in my first formal dealings with him when I headed the Peace Secretariat, and he straight away allowed the A 9 northward from Omanthai to be open almost every day of the week, when the LTTE had previously not allowed the ICRC to facilitate this.

The President’s advice about the need for me to function more actively in Sinhala, and especially in Parliament, clearly makes sense. Given that my analyses are written in English, I cannot really expect them to have much impact on most decision makers. I am grateful therefore to those who do respond, to the letters I write in English after meetings of Divisional Secretariat Reconciliation Committee meetings. Health and Defence are always prompt, I should note, which confirms my view that institutions that observe the proprieties are also the most efficient. But recently I have been delighted to receive positive replies from the Ministry of Agriculture (though sadly not Irrigation, despite the many problems in that field drawn to my attention), and even the Ministry of Education has been helpful. Read the rest of this entry »

sithamuI was immensely impressed by the publication, initially on this website, and then in a Sunday newspaper, of the report of some young parliamentarians, from government and opposition, which aimed at promoting post-war Reconciliation and better relations with members of the Diaspora. I had come across them before, since I was asked to address them before an initial visit to Britain, and later I was most impressed with two of them who attended a meeting with the former British Secretary of Defence when he was here for the recent Defence Seminar.

I told the Secretary to the President about their input, and he turned out to be aware of their academic qualifications, and recognized their worth. Unfortunately he is not in a position to make use of their undoubted talents, given our national obsession with seniority, regardless of merit.

I will not discuss their recommendations, which are In accordance with those of the LLRC but adding on more interesting initiatives too. Rather my purpose here is to suggest that such synergy should be used by government also, to promote reform, as well as wider understanding of how reconciliation can be pursued.

Read the rest of this entry »

Rajiva Wijesinha

August 2019
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