The March of Folly 19 – Trying to improve the quality of legislation and parliamentary oversight

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.

The March of Folly – 4. Our mad cabinet system

I discussed last week the absurdity of how appointments are made to the cabinet. But the problem goes deeper than that, in that we have completely perverted the whole concept of cabinet government, and then multiplied the problem by having massive cabinets. Indeed the 19^th amendment, contrary to the pledge in the President’s manifesto, practically entrenched this, by introducing provision for what is described as a National Government, with no effort at all to define what that might mean.

So we now have a government that certainly does not represent the nation, since it is clear that parties representing a majority of the Sinhalese and a majority of the Tamils are not in government. Only the Muslims can claim that, and even that perhaps may soon be in doubt, given the breach that has developed between Rauff Hakeem and Hassen Ali, who is one of the few Muslim politicians who can claim to be a man of principle. He was one of the five members on the government side who did not vote for the impeachment of the then Chief Justice, the only member of the Muslim Congress who stood firm.

In Sri Lanka the cabinet has become a reward for getting into Parliament and having pleased those in power. Being a Minister does not however necessarily confer power with regard to policy making, but this is not a problem for most Ministers because they are not really concerned with policy, and few have the capacity to understand policy and planning. Rather, they see ministries as providing them with perks, as the excesses of the last few weeks have made clear, the massive sums the country now has to fork out for yet more vehicles for yet more ministers.

Endgame : Meditations on a House, a Country, a Career –13 Useless efforts

Much of this series has been about my personal travels, and the slow but steady dissolution of the world I had known. To dwell only on these would however give a misleading impression of what occupied me most during the years from 2012, when I began to realize that my efforts to promote reform were getting nowhere. But that realization took time to crystallize and, in the period when I continued in Parliament on the government side, I tried hard to effect some changes.

It was something I felt that the National Human Rights Action Plan, which we had begun drafting when I was Secretary to the Ministry of Disaster Management and Human Rights, was finally adopted by Cabinet. There was no Ministry of Human Rights following the 2010 election, and it became clear that the Ministry of External Affairs, to which in theory the subject had been entrusted, was neither competent nor concerned. Minari Fernando, the Consultant we had taken on to draft the plan, found it impossible to work from there, but fortunately Mohan Pieris, as Attorney General, took on responsibility, though he was too busy to attend meetings and I had to do most of the work. But he allowed the more able members of the Department such as Yasantha Kodagoda to contribute, and with yeoman service from Dhara Wijayathilaka and Hiranthi Wijemanne, who had been deeply involved in improving the lot of women and children for many years now, we got a good draft together.

After it was adopted, Mahinda Samarasinghe, who had been made the President’s Special Envoy on Human Rights when the failure of the Foreign Ministry became obvious, was appointed to chair an Inter-Ministerial Committee on implementing the Plan. That did not I think ever meet, but he appointed a Task Force to expedite implementation, and asked me to help. By then I had realized how insincere Mohan Pieris was, so I told Mahinda I would do this only if I chaired the Task Force. Mohan was clearly upset, and said at the meeting at which Mahinda asked me to take over that I could be a bloody nuisance, but he made no further objection, and for a few months we were able to work towards consensus on many issues.

But before long it became clear that, to expedite action, we needed a dedicated Ministry as we had had before. Though Secretaries to Ministries seemed most cooperative, in particular the Secretaries to the Ministries of Land and of Women and Children’s Affairs, the representatives they sent to meetings could not ensure follow up. In some cases there was vast confusion about who was responsible, given the proliferation of Ministries, and the plethora of Departments within Ministries. We also had to cope with a very conservative Ministry of Justice, which seemed determined for instance not to repeal the horrendous Vagrants’ Ordinance, on the grounds that that was the only way to control prostitution. The fact that it was used to remand women at will, with no provision for checking on their fate, while prostitution flourished in various forms, was ignored.

Chanaka Amaratunga – the last phase

Chanaka Amaratunga died 20 years ago on August 1^st, 1996. He died a very disappointed man, for he had not been put into Parliament at the previous election. Those of us who have been in Parliament can vouch that that is no panacea for disappointment, given how sadly our Parliamentary traditions have been traduced. But Chanaka was a passionate believer in the Westminster system, the last perhaps to care deeply about its forms, with the possible exception of his great friend, Anura Bandaranaike.

I have written previously about the reasons Chanaka was not put in Parliament, but it is appropriate here, today, to note categorically that his hopes were destroyed by two people. In their careers they have often seemed polar opposites, but at the time they were united in their determination to keep Chanaka out. But I should note that it was not primarily dislike of him that motivated them, but rather fear – a much under-estimated factor in Sri Lankan politics. The fear was not of him but of another of his great friends, Gamini Dissanayake.

The two conspirators I refer to are Ranil Wickremesinghe and Chandrika Kumaratunga. It is the more essential now to expound what happened because, in their subtle and not so subtle ways, they will now destroy Maithripala Sirisena, as they have destroyed so much else, unless their essential negativity is recognized. For once again what has brought them together is not anything positive, but rather a visceral hatred of Mahinda Rajapaksa. And underlying this hatred again is fear, and envy for they realize that he is much loved still in the country. This is despite all his faults and the faults of his government, because he achieved much for the country, not least destroying the terror that had burgeoned under their watch. They on the contrary did very little when they were in power, one for over a decade, the other in short spells, during which the power of the Tigers grew exponentially.

The Road Not Taken 2 – Ignoring the need for parliamentary consultation and consensus

One of my more naïve assumptions as I entered Parliament, in April 2010, was that it was an independent institution. I also assumed that it was the role of backbenchers, even on the government side, to bring issues to the attention of the executive. I was therefore the first member on the government side to ask a question, and also the first to propose an adjournment motion.

Some of my colleagues actually questioned this and suggested I was trying to embarrass the government. But at a Parliamentary Group Meeting the President indicated that we should get involved in such parliamentary practices, and not leave it all to the opposition, whereupon others followed suit.

I was less lucky about another initiative I started, which was to propose adjournment motions signed also by opposition members. I had found several who seemed like me to want the dignity of Parliament upheld, but after I had got several signatures – Ramesh Pathirana and Neranjan Wickremesinghe from the UPFA, Rosy Senanayake and Buddhika Pathirana from the UNP, Sunil Handunetti of the JVP and Mr Saravanaparvan of the TNA and Mr Radhakrishnan of the UPF – one member of the government group questioned the concept and, sure enough, at the next Parliamentary group meeting, the President said this was not proper. Unbeknownst to me, his idea of promoting consensus was to bring people over to then vote with government on all issues – which happened soon afterwards, giving the government a 2/3rd majority – not, as I had hoped, to promote initiatives which parliamentarians on all sides would favour. As a matter of interest, I give here the text of the motion which eight of us signed and handed in to the Leader of the House –

We, the undersigned Members of Parliament, representing a cross-section of parties, request that the following adjournment motion be taken up for discussion as soon s possible –

That this House do stand adjourned to regret the numerous occasions on which Parliamentary questions have to be postponed again and again because of a failure to provide answers in time; to request Hon Ministers, while recognizing that such delays are due to circumstances beyond their control, to emphasize to Ministry staff and Heads of Departments the importance of providing answers quickly; to suggest that Ministries should set up systems to maintain records more carefully so as to have essential information readily available; to urge the relevant Ministries to devise and implement swiftly training programmes for public servants that will ensure skills in line with the requirements of a knowledge society; to request a thorough overhaul of the Sri Lanka Institute of Development Administration to promote the provision of courses that may receive appropriate accreditation , to improve soft skills of communication and analysis as well as administration; and to urge the entrenchment in the public service of a culture of swift responsiveness to the needs of the public, with regard to information as well as action.

A Reform Agenda 25 – Local Consultation and Empowerment

I was asked recently in an interview to mention seven areas of priority for the new Parliament. I began with Education and Reconciliation which have long been priorities for me. But then I also noted some other areas in which structural change was essential.

One of these was providing greater autonomy to the regions and local bodies with regard to decision making. But I did not by this mean a return to the old debate about devolution and sharing power between the Centre and Provincial governments. My stress was on more power to local bodies, and I also thought it vital to develop better consultation mechanisms.

I am glad that the UPFA manifesto notes this need, and I hope they will study the progress made in this area by the Ministry of Public Administration, working in collaboration with UNDP. A couple of years back the Ministry Secretary sent out a circular about regular meetings at Grama Niladhari level, and he also issued, together with the Secretary for Child Development and Women’s Affairs, a circular setting up Women and Children’s Units in each Division. Building on such initiatives, there was an excellent report prepared by Asoka Gunewardena on improving Service Delivery in the Divisions. This should be used to flesh out the manifesto, leading I hope to fulfilment of the President’s commitment in his January manifesto that ‘The Divisional Secretariat will be made the chief unit that performs the priority tasks of the area’.

Political Principles and their Practice 25 – Alternative sources of Authority

I have come to the end now of the subjects covered in my book on Political Principles and the Practice in Sri Lanka, which was published in Delhi a decade or so back. I thought it still relevant, since I feel that one reason the Reform Programme with which the current government has been unsuccessful is that it did not pay sufficient attention to basic political principles.

Having gone through some of these, I then looked at how constitutions had developed in Sri Lanka over the last century. The constitutional process began with the Colebrooke Reforms in the 1830s, but then there were very few changes until the McCallum Reforms of 1910. After that changes happened thick and fast, culminating in the current Constitution which was introduced by J R Jayewardene in 1978.

In early days stress was on the Legislative Council, with the Executive Council being a separate entity as it were, controlled by the head of government, the Governor. It was only with the Manning Devonshire Reform of 1924 that two members of the Legislative Council without executive responsibilities were put on the Executive Council. It was also in that Reform that the Legislative Council acquired greater powers of financial oversight, through the establishment of a Public Accounts Committee.

Political Principles and their Practice 24 – An Executive Presidency tied to a Westminster Cabinet

After he won election, Jayewardene ignored his own political theories when he found himself in command of almost absolute power following the massive electoral victory in 1977. He was virtually unquestionable for, along with Senanayake, most of those who had held cabinet office in the 1965 UNP government were dead. Jayewardene was more senior than all those who remained and he soon dismissed his only contemporary, a cabinet minister who had been with him in the 1950s.

The fact that he did not implement his proposals was clearly his own decision rather than the result of political compromise. He probably realised that his control of parliament would be enhanced by continuing the requirement that the cabinet should be drawn from parliament. The executive would not be criticised by members of his own party if they were hoping to join it and if its senior members were present with them in parliament. Another reason may have been that he was winning over members of other parties by offering them executive positions. It would have been embarrassing if they had to vacate their parliamentary seats for this new system, in which case candidates would have had to be nominated to the seats by either Jayewardene himself or the party to which they had originally belonged.

Political Principles and their Practice 23 – Parliamentarians without legislative or oversight powers

By giving parties the right to expel members from Parliament, Jayewardene destroyed an important principle of parliamentary democracy—the independence of members of parliament. The main justification of parliament is that it acts as a check on the executive. In the British system members of the ruling party generally support the government, but they are free to criticise and question it. Turning them into mere lobby fodder, programmed to support the government under any circumstances, makes them redundant.

In Sri Lanka, as time passed, MPs realised that they could invoke the authority of the Supreme Court against arbitrary expulsions. But such a move set them in a position of hostility against the party. This usually meant they had to cross over to the opposition if they wanted to assert their independence even on a single issue. So Sri Lanka has been deprived of one of the great benefits of the parliamentary system, which in other countries allows members who think on similar political lines to maintain basic loyalty to their party while criticizing anything they find aberrant. In Sri Lanka, on the contrary, any dissent leads to oppositioning. So it is rare to find members willing to express different opinions, which happens usually  only if sufficiently large numbers could be brought together for a change of government. But since most parliamentarians are not likely to change loyalties on appeals of conscience alone, financial incentives and promises of future office would have to be used to lure them. Instances of this approach have occurred recently, leading at the end of 2001 to a premature election.

A Reform Agenda 24 – Freedom of Information

One of the promises in the President’s manifesto which was broken was that relating to the Right to Information Bill. The manifesto pledged that the Bill would be introduced on the 20th of February and passed within three weeks. Some sort of leeway was also given, because it was actually a month later, on the 20th of March, that it was pledged the Bill would be passed.

There is no excuse whatsoever for having failed to get this done. True, the Right to Information was incorporated in the Constitution in April, but this needed to be fleshed out through a Bill. Such a Bill was indeed drafted, and circulated at the beginning of April, so I assumed all would be well. I found the draft generally satisfactory, though I suggested some changes to extend its scope, including posting electronically for the information of the public ‘the Declarations of Assets of Ministers, Deputy Ministers, Secretaries of Ministries, Chairs of Public Authorities and all officials responsible for contracts or expenditure over the value of Rs 1 million…… Gifts over the value of Rs 500,000 received by such individuals should also be recorded.’