You are currently browsing the tag archive for the ‘Legal Draughtsman’s Department’ tag.

qrcode.30640274In the last few articles in this series, before we know whether or not the Reforms this country needs will be taken forward or not, I will continue to look at the pledges in the President’s manifesto which have been ignored. The most important had to do with structural and political reforms, and of these the Government only bothered about one, leaving half a dozen undone.

But there were also very practical measures, which are equally important if we are to develop as our people deserve. Way back in the seventies the Economist I think described us as the only underdeveloped country that was still under-developing, and in 2001, the then Australian ambassador said he had never known a country go backwards so quickly, as we had done, during the period he had been here. That was one reason that motivated me to vote for the UNP in the December Election, though the way the LTTE ran circles round the government that took over soon caused worry. Still, I think it was a good thing we had a change then, since I think it also put the SLFP, in its PA incarnation which then changed to UPFA, back on its toes.

Development, when he experienced it, came largely through construction, as with D. S. Senanayake and his dams, the Mahaweli in JR’s time, and then the devotion to infrastructural development in rural areas under both Premadasa and Mahinda Rajapaksa. But while we must continue grateful to the last, both for bringing us security, and for his development programmes, in the last couple of years it became clear that not enough was being done with regard to Human Resource Development.

Read the rest of this entry »

Advertisements

qrcode.30495452Government needs to be accessible to the people. At present however everything militates against this. Laws are formulated in language people cannot understand. They are amended with no effort to ensure that clean copies of the latest version are available for anyone to consult who needs them. Instead you have to go through the original Act and then all the amendments to the Act, Thus, even though the 19th Amendment to the Constitution was passed three months ago, a consolidated version of the Constitution is still not available.

The President called for one the other day, and could not understand why this had not been prepared already. But our Legal Draughtsman’s Department still works on the old system that developed before computers made production of a consolidated version simple. When I pointed this out five years ago – having asked for the earlier Act that was being amended one day in Parliament, since I thought I should know precisely what I was voting for – I was told that this was the tradition and there was no need to change it.

Fortunately the Secretary General understood the implications of my question and said that a copy of any Act being amended would be available for inspection in the Officials’ Box (he said it would be a waste to give copies to all members, and I fear he was correct). Anyway now that the President has made his view clear, I hope the Department will in future present new Acts as a whole when there are substantive amendments. But I suspect the usual lethargy will take over, and we will go on in the same old way.

Read the rest of this entry »

qrcode.30268994In these last few articles on the tragedy that befell our hopes for comprehensive reform, I thought I should spell out how exactly Ranil Wickremesinghe and those working to his agenda hijacked the process. Their purpose, far from broadbasing power and ensuring a range of different authorities, was to concentrate power in the hands of what one of them lovingly described early on as an Executive Prime Minister.

Thus they took upon themselves alone the drafting of the 19th Amendment, without open discussion as had been pledged through the National Advisory Council. And so the discussion paper that came out in early March, circulated only to a select few, declared that

33A (2) The President shall, except in the case of the appointment of the Prime Minister or as otherwise required by the Constitution, act on the advice of the Prime Minister or of such other Minister as has been authorized by the Prime Minister to advise, the President with regard to any function assigned to that Minister

The rest of the draft was based on this proposition, with the Prime Minister being ‘the Head of the Cabinet of Ministers’.

Read the rest of this entry »

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.26231205Speech of Prof Rajiva Wijesinha

Prepared for the debate on the Votes on the Ministries of Justice and of

Rehabilitation and Prison Reforms

During the Committee Stage of the Budget Debate, November 21st 2014

(Not delivered because of the common candidate press conference)

 

I rise to speak on the votes today of two important Ministries. My main concern will be rehabilitation, where I think the Ministry can be proud of its work in having rehabilitated around 12,000 former combatants after the conclusion of the conflict with the LTTE in 2009.

This is of special concern to me, Mr Speaker, because as Head of the Peace Secretariat I was deeply worried about plans for rehabilitation. Nothing was being done about this, in part because the subject was then the preserve of the Ministry of Justice, which was more concerned then with what might be termed judicial issues. This was understandable, since there was much concern then about child soldiers, given the brutality of the LTTE in its system of forced recruitment.

forced conscriptions

.. the silence of the other internationals working in the area, who were complaisant in the wicked practices of the LTTE.

In this regard, Mr Speaker, I must pay tribute to the Norwegian ambassador in place when I was first asked to work in this field, Mr Hans Brattskar. He was categorical in his response to the LTTE when it tried to remove the subject of child soldiers from the agenda of its discussions with government in June 2006. He made it clear that the Sri Lankan side had every reason to raise the issue, and perhaps it was that which led to the LTTE dodging those talks.

Later it was Mr Brattskar who first formally told the Sri Lankan government that the LTTE was engaging in forced recruitment of two persons in each family, by the time of his last visit to Kilinochchi. This was in marked contrast with the silence of the other internationals working in the area, who were complaisant in the wicked practices of the LTTE. Indeed when I upbraided the then Head of Save the Children, about his only worrying when the families of his staff were affected, he asked whether I objected to his trying to save them. Not at all, I said, what made me furious was his failure to have spoken out when other children were being abused.

joanna-van-gerpen1

Joanna van Gerpen (UNICEF) meeting with S. P. Tamilselvan, the political leader of the LTTE, in Kilinochchi.

All this was of a piece with what seemed unprincipled connivance, though I believe one should not attribute to viciousness what springs often from moral laziness and incompetence. Thus the head of UNICEF did nothing to check on the abuse of the 1 million dollars given to the LTTE for rehabilitation, and even seemed to acquiesce in recruitment of 17 year olds on the grounds that the LTTE had not amended its legislation in that regard – a shocking tolerance of the pretensions of terrorists.

It is incidents such as that, Mr Speaker, that have contributed to the deep distrust displayed by government towards the international community, and this must be understood even as we urge a more positive attitude, which will take advantage of the many with decent and positive values. We must set in place systems that will limit abuses, but there is no justification for blanket prohibitions. And of course we must also do more to make it clear that we can work effectively with aid agencies, guiding them to fulfil our national priorities whilst working in accordance with their fundamental principles and policies. Read the rest of this entry »

budget 2014Speech of Prof Rajiva Wijesinha

On the votes of the Ministries of Higher Education and Sports

During the Committee Stage of the Budget Debate, November 17th 2014

Mr Speaker, I am happy to speak on the votes of these two Ministries, which are both in their different ways so vital for the development of this country. Though I shall for obvious reasons concentrate on the work of the Ministry of Higher Education, I would like to congratulate both Ministers for their imaginative approach to the subjects coming under them. With regard to Sports, the efforts of the Minister to have it incorporated formally in all schools are laudable, and I can only hope he succeeds.

This was a decision of the Consultative Committee on Education, and it is a pity that those decisions have not as yet been translated into action. But while all the reforms that are contemplated are worthy, it does make sense to proceed with what is possible, given that vested interests seem to be delaying the full fruition of the Parliamentary recommendations. I hope therefore, that with His Excellency the President also committed to making sports compulsory, the Minister will soon succeed.

This is the more important because the qualities that develop through Sports in particular, but also other extra-curricular activities, are essential for productive employment. Team work and leadership and other aspects of socialization are vital, and at present opportunities to develop these are confined to children in the more popular schools. I have been shocked at the lack of extra-curricular activities in the many rural schools I look at during Reconciliation meetings in Divisional Secretariats in the North and East, and I am sure this is true all over the island. Given that for most jobs what employers look for is not just academic attainments, but evidence of other skills, it is vital that the proposal of the Minister has an impact soon in rural areas too.

This bears on the main point I wish to make with regard to Higher Education, where urgent reform is needed. The Minister and the Secretary did their best, and though the draft they prepared could have been improved, it is a great pity that the Legal Draughtsman’s Department ignored that draft and spent ages producing something not substantially different. I suspect, Mr Speaker, that the damage done to development by the Legal Draughtsman’s Department, by its delays, will loom large in the future, and amongst its worst shortcomings was the delay with regard to Higher Education.

Significantly, the need to have thought more carefully about this came up when the whole concept of Free Education was popularized. Though what Kannangara did with his Central Schools was invaluable, in extending opportunities nationwide, when the idea of Free Education was thrust upon the State Council Committee at the very end of its deliberations, there was more stress on the word Free, and not enough on Education.

Characteristically, D S Senanayake pointed this out, in his speech to the State Council towards the end of its days. What he said then is well worth quoting at length –

DSIndustry in this country has yet to be developed. Today Government service is still regarded as offering the most attractive jobs. The Civil Service is today looked up to as the most attractive branch of the Government service. But I feel that if our country is to prosper, we must recognise the fact that it is the industrialist who can prove to be of great service to the country while at the same time benefiting himself,. The industrialist can be of far greater service to the country than the Civil Servant.

 

We speak of industrialization in Ceylon but we do not seem to realise that we require well-trained personnel to enable us to compete in the industrial sphere with other parts of the world. We also want agriculturists who could help this country to compete on equal terms with the rest of the world.

We realise that 80 per cent of the people of the country, according to the estimate of the Special Committee on Education, must take to industry and agriculture. I feel therefore that any scheme of educational reform that takes no account of these factors tends to ignore the usefulness of our student population to the community in the future.

 

When the age-limit is revised to sixteen, what happens? We carry on with the same kind of education up to the age of sixteen, whether it is bad Sinhalese, bad Tamil or English. We would not get that bias that is required, that was expected to be given to students from eleven to sixteen. They would not get that training; and if we get any students at all, they will be students over sixteen who have been rejected everywhere. They will not have the necessary bias and we will have to start all over again.

 

One problem Senanayake diagnosed was the failure of adequate consultation. He put that down to the unusual system that obtained under the State Council, where there was no question of Cabinet responsibility –

 

The duty of making the actual proposals is entrusted to the Executive Committee concerned … But I have one little complaint to make in this regard. Although an Executive Committee does or omits to do something, the only body that is blamed for it is the Board of Ministers. In these circumstances, one feels that it would be well if the Ministers as a body were given an opportunity of considering a report as a whole and were allowed to put forward their own proposals … So far as my Ministry and I were concerned, we would have been only too happy to be associated with my good friends in evolving a scheme or discussing a scheme for discharging our duty to the large number of students who were to be placed under our care.

 

Unfortunately, though we have Cabinet government now, the norms of Cabinet government do not apply, and there is insufficient coordination. Thus the need to diversify, to provide more and better vocational and technical training, and also provide degrees and opportunities for advancement in skills suitable to higher level employment, is not taken seriously.

With the cooperation also of the Ministry of Youth Affairs and Skills Development, I have been able to look into the situation more closely, and not only as regards the North and East. But though there is great goodwill on all sides, we do not have systems in place to ensure swift action, and also to empower more and better service providers. Unfortunately the efforts of the Minister of Higher Education proved abortive, while our efforts at COPE to introduce a greater sense of accountability in those now responsible for education at the universities has not been properly understood. Setting in place mechanisms to all institutions to fulfil their responsibilities to the students as well as the country at large would be easy, but it requires great will and commitment.

I am grateful to the Minister and the Secretary who decided earlier this year to appoint me to an Advisory Position. Better late than never, I thought at the time, given my long experience of the system and education in general. However, having now put forward a constitutional amendment to prevent Members of Parliament having any formal involvement with any Ministry, which seems important if the Doctrine of the Separation of Powers is to be upheld as best possible under this strange hybrid Constitution we have, I felt I should resign. Besides, though my suggestions were well received, the system moves so slowly that we need more effective mechanisms if we are to develop a system suited to the modern age, and the varied talents of our students. I hope then that the Minister will try in what time remains to move swiftly on the excellent ideas with which he began his tenure of office.

These include the promotion of public-private partnerships in providing educational services. This is essential if we are to increase the range of courses on offer, as well as provide better education to more people. Unfortunately there was insufficient consultation and explanation to begin with, which allowed opponents, including those within the government who are still stuck in unthinking dogma, to claim that the plan was to do away with free education. Nothing could have been further from the truth, but rather what was sought was to provide education to those who now have no access to free education, and who often have to spend exorbitant amounts to obtain degrees in other countries, degrees as to which we have no monitoring capacity.

The failure to regularize the availability of paid courses within Sri Lanka put paid to our being able to encourage courses that would benefit the nation, it also prevented us from developing a scholarship scheme which would have allowed bright students access to different forms of delivery. And we were deprived of developing healthy competition that might have made the more traditional of our universities realize they had to make changes in their programmes.

I remember, Mr Speaker, when this government seemed full of innovation and committed to pluralism, the enthusiasm of university administrators in Australia who wished to set up courses within this country. There were experts in nursing and in teaching who would have done much to enhance the skills of our students. But nothing was done to help them, and we are now struggling to satisfy the need for developing expertise in these fields. Unfortunately, when we bring up the subject of pedagogical skills in the Consultative Committee, we find resistance despite the efforts of the Minister and the Secretary to get things moving.

I should note however that there are signs of improvement, with more attention to English and soft skills, though perhaps these should be spelled out more carefully, with greater attention to training of trainers in these areas. We should also look at good practice in the past, as with the courses in thinking and self-expression developed by Oranee Jansz when she was Co-Coordinator of the General English Language Training programme until that was swallowed up by the universities, who then deployed the funds for capital expenditure for the most part. Indeed they have only themselves to blame if a similar course had to be started by the Ministry of Defence, which at least knows how to develop initiative and pride in work. The pity is that the universities are not prepared in general to learn from best practice, their own or that of others, which is why we must hope the innovations the Minister is trying to introduce will take root.

There is much to do in these fields, Mr Speaker, and we cannot afford to move slowly. I hope therefore that this Ministry is not stinted of funds, but that better systems of accountability will be introduced – including, as I have long suggested, sharing the accounts with the students, who will be our best safeguards against corruption – and more effective monitoring, as we have suggested in COPE, to make sure that the learning process is constantly upgraded, and that its products are able to serve the nation imaginatively and with a range of skills, as D S Senanayake wanted over half a century ago.

downloadSeveral papers, though interestingly enough not all, carried accounts last week of the failure of Vasantha Senanayake to propose the Constitutional Amendment that stood in his name on the Order Paper of Parliament on September 25th. It was not however registered that he had not withdrawn the motion, which was to introduce statutory limitations on numbers in the Cabinet. He merely postponed it, while meanwhile requesting government to set up a Committee to go into that and other constitutional amendments he had proposed.

It seemed to me a pity that he had not gone ahead with the motion, not least because of the enthusiasm with which government members had greeted it on the day. One government MP came up to congratulate him, and was deeply disappointed to be told that he would not be proposing it that day. Even more surprisingly, a Cabinet Minister, albeit a particularly honest and honourable one, told me it was a very good idea. And the enthusiasm of the opposition also took the form of recognition of their own inadequacies, for Ravi Karunanayake, who had proposed something of the sort through a Private Members Motion, granted that it was much more effective to put forward a Bill.

Ravi indeed has contributed to the contumely in which Private Members Motions are held, by proposing hundreds of varying importance, which has contributed to Fridays becoming a day to avoid Parliament. And it is a mark of the lack of awareness about Parliamentary practice in those who pass for senior Parliamentarians that it was a first time member who registered the importance of putting forward a Bill, instead of adding through a Motion to the tedium of Fridays. That day in Parliament is now largely the preserve of Ravi and of his great rival Buddhika Pathirana, along with legions of the dead (obituaries being the other main subject of discussion on Fridays, apart from the motions of the dynamic duo).

The assumption in the press was that Vasantha had been pressed by the UPFA leadership into withdrawing the motion. This had indeed happened earlier, for he had put forward the Bill some months ago, but on that occasion the President had spoken to him and, in talking about his bright future, persuaded him not to put it on the agenda. I suppose it is because I do not have a future that I would have sought some sort of commitment from His Excellency to encourage debate and discussion on the matter, but I can understand someone of Vasantha’s age believing that that would not be the end of the matter. Read the rest of this entry »

download (8)I had a bizarre experience recently when I had to attend what is termed Standing Committee B of Parliament, which deals with legislation. This was in connection with the Vasantha Senanayake Foundation (Incorporation) Bill which I had sponsored. The experience was rendered worse by the Minutes which I received subsequently, which bore no relation to what had actually taken place.

I presume that there is some formula for reporting the meetings of these Standing Committees, but it was certainly inappropriate in this case, given that I had raised some matters which I had asked to be recorded. The Minutes state that I moved several amendments to the original draft of the Bill I had presented. This was not the case. What happened was that we were told the legal advisers had gone through the draft and suggested amendments. I accepted these, but I asked the basis on which they had been made.

It turned out then that the representative from the Legal Draughtsman’s Department who was supposed to liaise with Parliament regarding the Bill had no idea of the reasons. After much discussion one bright lawyer from the Attorney General’s Department said that the changes were probably because the Bill as it stood seemed to be in conflict with the Constitution.

I gathered then that for years the Attorney General had advised against many charitable works by Foundations on the grounds that the Constitution, following the introduction of the 13th Amendment that introduced Provincial Councils, declares that ‘No Bill in respect of any matter set out in the Provincial Council List shall become law unless such Bill has been referred by the President…. to every Provincial Council’.

Read the rest of this entry »

Rajiva Wijesinha

November 2017
M T W T F S S
« Oct    
 12345
6789101112
13141516171819
20212223242526
27282930  
%d bloggers like this: