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I wrote last week about how we need to improve the quality of our representatives in Parliament. I concentrated there on ensuring individuals who are accountable to particular areas, and therefore need the planning capacity to work for those they represent. But I also noted their wider responsibilities, and that indeed was what the OPA was primarily concerned with, in organizing a Seminar on Suggestions for Improving the Quality of Our Legislators.

 

But before embarking on this, we need to understand what exactly we mean by the term legislators. At its simplest, it means law makers, but we have to understand law here in terms of the functions of Parliament. And here, while Parliament is there to make laws, it also has a second function that springs from its legislative function. Amongst the most important laws it makes are those affecting the finances of the country. Hence the need to have an annual budget, which is supposed to be discussed at length by all Parliamentarians. And then,  since it is Parliament that allocates the finances which are used by the executive branch, it must make sure these are used in accordance with the provisions it makes. Hence it must monitor the use of funds by the executive.

These are the principal functions of Parliament. But because we are still steeped in the Westminster system, we confuse the functions of Parliament as Parliament with those of the executive branch of government, which on the Westminster model is based in Parliament. Even though we moved in 1978 to an Executive Presidency, we have – uniquely amongst countries which elect an Executive President independently of a parliamentary election – maintained the rest of the Executive in Parliament. Incidentally I should note that my despair about what passes for Departments of Political Science in this country is that there has been no serious research about both the rationale and the impact of J R Jayawardena’s decision to violate the commitment of his manifesto to have an executive outside Parliament. Read the rest of this entry »

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Political principles - legal regulationThe courts and other bodies described above function in order to take decisions according to the law. To advise them about such decisions, or rather to present arguments on behalf of those seeking decisions, there are professional legal practitioners known as lawyers. Lawyers can represent citizens on both sides of a civil dispute. They can also represent citizens against the government in matters of criminal or constitutional law. They may also appear before arbitration bodies and other tribunals. In addition, lawyers assist in the preparation of legal documents, including contracts, property transfers and wills. In theory, such arrangements between parties do not require lawyers. But it is advisable to make use of their expertise to ensure that all legal formalities are observed. This should prevent future legal disputes, though as we know such precautions may not always be successful.

In Sri Lanka we also run the risk of lawyers not always performing their tasks with efficiency and / or honesty. We do not have effective systems of regulation with regard to legal practitioners. I have suggested to the new Minister of Justice that he consider some of the points made by Nagananda Kodituwakku, one of the best public interest lawyers we have. But sadly I have not yet had a response, and I fear that we will not, despite the commitment of the government to reform, deal with what is a major problem for citizens, namely the fact that they cannot always rely on lawyers.

Mr Kodituwakku notes that ‘at present there is no authority to regulate the legal profession in this country, leading to a lot of abuses and victimization of innocent litigants. In leading democracies like in the UK, there is a mechanism in place to protect the citizens from unscrupulous lawyers. It is noted that in the UK a large number of lawyers found guilty for various abuses by the Regulatory Authority are being either disenrolled, suspended or imposed (with) compensation orders. 

The Regulatory Authority for lawyers in the UK is empowered with wide powers, which include searching premises, seizing of records, sealing of offices and prosecuting all unscrupulous lawyers against whom prima facie cases are established.’

It would be useful then in Sri Lanka too to protect the citizen and to instill discipline in the profession by establishing through a law a similar body with wide ranging powers. Amongst the provisions that should be introduced to safeguard the public, he suggests the following – Read the rest of this entry »

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 »

qrcode.27916254I 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 »

 qrcode.26591067It 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.

  1. 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.
  2. 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.
  3. 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.
  4. It must be specified that Secretaries to Ministries should be appointed by the Public Service Commission, not by the Cabinet or the President.
  5. 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.

  1. 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.
  2. 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.

  1. The Petitions and High Post and Standing Order Committees should be chaired by Opposition members and their proceedings should be made publicly available.
  2. 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.
  3. 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.

Colombo Post 27 Nov 2014 – http://www.colombopost.net/columns/op-ed/item/256-a-reform-agenda-1-reducing-the-power-of-the-executive

Last week saw yet another example of the slow erosion of systems that makes justice so alien a concept for our people. In Parliament we received yet another Bill cointaining amendments to a previous Bill.  It will be taken up only later, so I was not surprised that the original Bill was not available, since anyone interested could look it up in the interim in the Parliament Library. But once again I found that the notes at the side of the document, which are supposed to sum up the content of each clause, simply noted that the clauses were amendments to previous clauses.

The summing up, I should note, had been included at the beginning of the Bill. This does not happen always, so one should be thankful that this time at least anyone looking at the Bill could find out at a glance what was happening where. But I fail to understand why a custom designed for convenience, to allow anyone looking at the Bill to see immediately the impact of each clause, is now ignored. The only place where it still prevails is in the last two clauses of the Bill, where a note on the side tells us exactly what is in the Bill itself. One notable piece of information thus highlighted is that, where versions of the Bill in different languages are different, the Sinhala text shall prevail.

Read the rest of this entry »

I noted earlier that the visit of Navanethem Pillay should be seen as an opportunity by the Sri Lankan government, and the way the visit went, as well as the statement she made, confirms this view. Of course we had to contend with the fact that not all the advice she received was constructive, but the manner in which she reversed her earlier intention to lay flowers at Mullivaikkal indicates that she herself wanted to be positive. Though she argued that she had placed flowers elsewhere, she is too intelligent a woman not to have realized that her gesture would have been seen as a tribute to the LTTE, not to the victims of the long drawn out conflict.

I suspect too that, having come here, and seen our basic commitment to pluralism, she would have for the first time realized what an aberration the LTTE was. Though I do not think she would ever have stuck up for terrorists, she might have thought previously of the LTTE as at least in part freedom fighters, given her own upbringing in South Africa, where the Africans were without dignity or rights in the dark days of apartheid. Coming here would have helped her to understand the difference, and that I believe prompted the first foursquare condemnation of the LTTE from the UN system that we have now finally heard.

Sadly this was accompanied by the one blot on an otherwise very balanced and potentially helpful statement. She claimed that the LLRC report ‘side-stepped the much-needed full, transparent, impartial investigation into the conduct of a conflict that saw numerous war crimes and other violations committed by both sides’. This parroting of the American stance was a pity, because it could allow her detractors to side-step the other important points she raises.

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

  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

Read the rest of this entry »

I wrote last week about the need to have a Parliament in which members could fulfil their legislative role more effectively. But, in addition to changes in the electoral system, we need for this purpose to ensure that Parliamentarians have a better understanding of that role.

Essentially Parliament has two principal functions. One is with regard to laws, inasmuch as it is Parliament that formulates and passed laws. But, since laws pertain to particular functions, which are fulfilled by the Executive Branch, it is necessary for Parliamentarians to understand what those functions are.

Sadly the principal contact that Parliamentary practice in Sri Lanka now provides is used to discuss particular issues relating to constituencies, and to request resources for constituency purposes. There is hardly any discussion of policy. In any case the manner in which Parliamentarians are allocated to Committees, and the large numbers involved (many of whom do not attend, as I have found in waiting for a quorum to be made up), mean that policy discussions are rare.

The large number of Ministries we have – some of which have hardly held Consultative Committee meetings – mean that policy making is complicated, since so many different agencies are involved. The absurdity of pretending that Parliament can actually monitor the work of so many Ministries has been made manifest by the manner in which this year, twice the number of Ministries as last year have been put into a job lot for Committee Stage discussion during the Budget debate. Read the rest of this entry »

The importance of recent legislation to change the electoral system for local government elections was such that it clearly made sense on all sides to refrain from trying to improve the content of the Bill, but instead to concentrate on making it law. The government has after all agreed to further amendments by mutual consent later on, including increasing the proportion of those to be elected on a list basis to 40%.

I was told that one reason for not introducing that amendment at the Committee stage was that the Legal Draughtsman’s Department had said that would be difficult. I am not sure if this was correct, but if so it indicates how useless that Department has become. It was because of flaws in the draft last year that consideration of the Bill was postponed, and I very much feared then that opponents of the changes would prevail and prevent the Bill being brought forward again.

After all, though the whole country wanted change in the perverse system of preferences that J R Jayewardene introduced, the only people who had benefited from it, namely legislators elected under that system, were those who had to make the changes, and one cannot expect modern day turkeys, unlike those in the 1977 Parliament who allowed Jayewardene to destroy the power of Parliament, to vote for Christmas.

The Bill as it stands makes clear the continuing detachment from reality of the Draughtsman’s Department – a factor that I think is understood by the new Legal Draughtsman, who saw immediately the absurdity of current practice, though I gather she will not be at the helm long enough to ensure change.

Read the rest of this entry »

Rajiva Wijesinha

June 2019
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