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qrcode.30076040For the second part of this series, I will follow the system of the book that Cambridge University Press published some years back, and deal with practice in Sri Lanka. At the time I wondered whether I was not being unduly simplistic in spelling out in detail the way in which democracy developed in Sri Lanka. But a decade later, I realize this is essential, for, let alone students, many politicians and even academics cannot connect, and see relationships between basic political principles and what happened in this country – which was often the result of the particular convenience of a few individuals in positions of authority or of influence.

 

The first Chapter of the Second Part, Chapter 5, is about Power Sharing and Representation. It begins with a quick sketch of Early History before moving on to the development of Representative Institutions in the British period.

Early History

 

Sri Lanka, as most countries of the world, had an autocratic form of government for much of its history. Kings (or sometimes queens) ruled Sri Lanka from well before the Christian era. A change of government meant a change of monarch, often through violence or invasions. Sometimes the country was divided into several small kingdoms, with different kings who were independent of each other. More often, it was unified with one king dominating other rulers who were characterised in different periods as sub-kings or governors.

These kings were given advice and assistance by councils with various responsibilities at the centre. There were also systems of local government, with councils of elders in villages, or councils of various sorts to advise governors of regions. However, all such councils existed at the will of the king, as did the courts. They and the governors were chosen or appointed on the sole authority of the king. Though good rulers took into account the wishes of their people, the idea that the people had a right to choose their rulers never came into play. The only occasions on which the will of the king was not absolute was with regard to succession or appointment of sub-kings, where heredity was crucial. In short, democracy was unheard of as a principle. The Divine Rights Theory of Monarchy based on heredity or conquest held sway in Sri Lanka, as it did in most of the world, for most of its history. Read the rest of this entry »

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qrcode.29977451In dealing with the Law in this series, I have added much to the text of the book that was published some years back by Cambridge University Press in India. This is because the decline in our legal system in the last couple of decades has been appalling. So in addition to my analysis of what law is about, I thought it essential to include some recommendations on establishing a system that will help restore the confidence of the people in the justice system.

For this purpose I have drawn much on the suggestions of Nagananda Kodituwakku, whose deep commitment to a professional and honest public service has been heightened by his experience as a lawyer in England. His paper shows that, whereas we claim that our system is based on the forms developed by the British, we have failed to move with the times as Britain has done.

I realized from what he wrote that it will not be enough to restore the independence of the judiciary. That is essential, and we must ensure that appointments are made in accordance with clear criteria and transparently, through a system that ensures consultation and professional input that weighs more than politican convenience.

But in addition we must ensure that the court system is responsive to public needs. Costs must be controlled so that justice is not beyond the reach of the majority. And justice should not be delayed, since that is not justice. Read the rest of this entry »

qrcode.29948785Although cases have to be brought to court when the law is breached, ideally a society should maintain law and order without having recourse to the courts. Crucial in this respect are the forces of internal security. Chief among these are the police, whose primary duty is vigilance to ensure that criminal activities are prevented or limited. With increasing criminal activity, the police find it difficult to fulfill this function, and are instead involved more in crime detection. In such cases, it also falls to the police to prepare evidence and present it in the courts, under the guidance of government lawyers wherever necessary.

Meanwhile, some of the functions carried out by the police at a stage when society was less complex have now been handed over to private security organisations. These hardly existed half a century ago, but now many government officers, private firms and even private houses, have security guards on a scale which was not thought of as necessary some decades ago. We can see then that internal security, which was considered primarily a function of government, is now perceived as a joint responsibility.

It should be noted that the preventive role of the police has increased in other respects. For instance, some years ago traffic control was not a major responsibility of the police. Now, with increased movement of people and greater use of vehicles, ensuring adherence to traffic regulations, and interpreting them in difficult situations, has become a primary responsibility of the police. Though this may seem a far cry from the security-related functions of the police, maintaining order in this area is vital for the smooth functioning of society.

There are many other government agencies that also contribute to security. Customs and excise officials have always been an integral component of financial and legal security, and their role has expanded with the expansion of criminal activity in areas such as narcotics and terrorism. But there are also agents of other ministries and government departments, such as the Consumer Protection Authority or the Public Health Department, who have a vital role to play in maintaining security. With the development of society and the need for security in new areas, the work of organisations such as environmental protection agencies will increase in importance. It will be necessary for governments to strengthen their preventive role.

Finally, all over the world in the last few decades, greater attention is being paid to what is known as Community Policing. This is connected with the idea I began with in this section, that the police, as the guarantors of law and order in a community, should also play a part in forstalling problems. This can be done through greater involvement in society. Working together with leading members of the community, and also the vulnerable, will help to establish a set of norms, which will not be easy for individuals to violate.

Judicial Independence

Of the institutions and individuals noted above, some clearly belong to the government in the narrow sense of the term, that is, the executive. For instance, in addition to the police, the attorney general, the legal draughtsman and their departments fulfill executive functions, and therefore, they usually come under the authority of the executive head of government or his or her representative. Read the rest of this entry »

Political Principles - majoritanismFinally, in this Chapter on Democracy and Representation, I look at how countries can avoid the impression that their governments look after only particular sections of society. Making it clear that government is inclusive, and bears equal responsibility for all groups in a country is an important part of ensuring the unity and thus the sovereignty of any country.

 

Avoiding Majoritarianism

The idea that the winner takes all after an election has caused serious problems in many democracies. It reduces the need for constant consultation that will contribute to continuity of policy. In pluralistic societies, in particular, it leads to neglect of the needs and aspirations of minorities. Minorities need not just be racial and religious minorities. Particular regions and social groups, even though they are a part of the racial or religious majority in a country, can be neglected by a government based on a parliamentary majority that springs from a limited proportion of the vote.

Constitutional safeguards, in the form of entrenched provisions, can ensure to a certain extent that discrimination is limited. However, in order to satisfy the needs of all these groups, constitutional safeguards alone will not suffice. Increasingly therefore, states have begun to realise that regional structures of governance are necessary, if the needs of particular segments of society are to be addressed. A central government cannot be expected to appreciate and respond actively to the special needs of smaller units with the same devotion that a government concentrating on that unit alone can supply.

The argument that devolving power to smaller units will cause problems cannot be sustained if the process of devolution is systematic and coherent. Certainly, there are issues that are best handled centrally, and will have to remain the prerogative of the central government. But assuming that all issues are best handled centrally is a fallacy. Also, the argument that devolution of power can lead to separation is no more valid than the argument that failure to devolve also leads to separation. Historically, the latter has caused separatist movements more often than the former.

The argument that devolution suits only large countries is also incorrect, since rational devolution supposes that authority is devolved in accordance with convenience rather than abstract principles. Larger units may require more powers, but smaller units can also exercise some powers in a manner that will benefit their people. One of the most successful examples of a country that has remained unified despite marked differences among its people is Switzerland. It is a relatively small country which allocates considerable power to the several cantons that constitute it. Read the rest of this entry »

Good governance 10When we were discussing electoral reform at a meeting of all parties chaired by the President, I was astonished at the general incapacity or unwillingness to conceptualize. The principal exception to this was the JHU representative, Asoka Abeygunasekera, whose few interventions went straight to the core of the problem.

A week later, at the launch of his book on the last election, I was telling one of the diplomats present about his conceptual capacities when he got up to speak. His main point was the general lack of analysis in addressing problems. I suspect that, like me, he has been sadly disillusioned by the failure of this government to address scientifically the problems it identified during the election campaign, and work systematically to overcome them.

Unfortunately this government, like the last one, seems to avoid thinking and planning, but rather produces ad hoc solutions when problems crop up, with no assessment of long term goals. Its idea of consultation seems to be to leave particular matters to particular individuals, which is why perhaps there has been no progress at all on that most important of commitments, a Code of Conduct. Instead we have concentration by individuals of what they want, which reduces to how they can best enhance their own powers.

All this is accompanied by outbursts that do more damage than the good achieved by positive measures. Ranil Wickremesinghe threatening to shoot Indian fishermen or attacking the Australian government for not following the line of his preferred Westerners with regard to the last government, Mangala Samaraweera defending Kshenuka Seneviratne by accusing Tamara Kunanayagam of speaking in support of the Tigers, Ravi Karunanayake claiming that the business sector had supported the previous government, all show a penchant for scoring debating points without considering the long term interests of the country. Read the rest of this entry »

To ensure that Parliament is composed proportionate to the will of the people, while at the same time allowing for constituqrcode.29527441encies that had individual representatives, the Germans developed a system that combines features of both the simple-majority system and the proportional representation system. In the German system, half the seats in parliament are occupied by candidates elected on a constituency basis. In addition, voters cast votes for a party and those votes are counted separately.

The number of seats a party occupies in the parliament must be in proportion to these votes. In order to achieve this, the remaining half of the seats in parliament, after the individual constituency representatives have been chosen, is allocated to each party to reflect the proportion of the votes they obtained on the party vote. This requires correction of any imbalance caused by the constituency vote, where one party may win a great many constituencies even though it has won each of them by a very small majority.

An example may help to make this system clearer.

Capture

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 »

Political Principles 4This is a much misunderstood doctrine, and I fear that ignorance of the principle will lead to reform of the current constitution in a disastrous manner. When there was a pledge to abolish the Executive Presidency, the more unsavoury elements in the UNP immediately declared that it would be replaced by an Executive Prime Ministership.

That is an absurd idea, but I found even Jayampathy Wickremaratne dogmatically declaring that an Act was being prepared to made such a transfer immediately. I argued against this strongly, first on the grounds that it would play straight into the hands of Mahinda Rajapaksa. He, and my friend Dayan Jayatilleka, were arguing that a vote for Maithripala Sirisena would amount to a vote to put Ranil Wickremesinghe in power. Had Jayampathy unveiled his draft Act as he claimed was necessary, the government would have made mincemeat of the opposition campaign.

My second point was I felt even more important, namely that it would be immoral to ask people to vote for Maithripala Sirisena only to transfer power immediately into the hands of someone who would never have been elected on his own merits. It is to Ranil Wickremesinghe’s credit that he recognized this. When I spoke to him shortly before the Sirisena candidature was announced, I confirmed that the Liberal Party would not support Mahinda Rajapaksa, but I added that we could not support Ranil either. The reason I gave was that he simply could not win, and he immediately agreed and said that was why he had tried to persuade President Kumartunga to come forward.

That confirmed my view that Ranil, though able enough with regard to economic discipline, was simply no judge of people – as the appointments he makes testify, culminating in the selection of Tissa Attanayake as General Secretary of the UNP. I told him then that Chandrika would do even worse than he would, and we had to hope for someone more acceptable to the nation to emerge. I think we both knew by then that Maithripala Sirisena would indeed emerge, but we respected confidentiality and left it at that.

What we now have then is ideal, with Maithripala Sirisena as President and Ranil working under him as Prime Minister. But I have realized, from the manner in which the Cabinet has been constituted, that Ranil has thought of electoral considerations first, and this is no way to run a country. It is for that reason that, in the reforms we are engaged in, we must understand basic principles of constitutionality. I therefore present here only the section on the Separation of Powers from my book –

In a few countries, such as the United States, the executive and the legislature are almost wholly independent of each other. This is in accordance with the doctrine of Separation of Powers, put forward by Montesquieu, a political theorist of the eighteenth century. Montesquieu believed that the people would suffer if any one individual or institution had absolute power. Therefore, he advocated that the legislature (the body responsible for making the laws) should function independently from the executive (the body responsible for implementing the laws). These ideas were followed during the drafting of the American Constitution in the 1780s.

 

Sri Lanka, along with many other countries, follows the British model which does not separate the executive from the legislature. In Britain, the king initially had absolute power. He ruled with the help of a cabinet appointed according to his wishes. Gradually however parliament developed a rival authority and it became customary for the king’s first minister to obtain the support of parliament. Then, during the nineteenth century, it was established that the king could not appoint a candidate as prime minister unless he had the confidence of parliament. Now, after a parliamentary election, the monarch invites the leader of the party which has a majority in parliament to form the government.

This in effect means that the prime minister, who runs the executive branch, also controls parliament. Earlier MPs felt that their main responsibility was to the people who had elected them and therefore they often challenged the executive on specific issues, even if they broadly supported it. Now however with allegiance to a party being considered more important than the interests of the nation or the people one represents, even parliamentarians who have no executive position do not normally challenge their party leader when he or she is prime minister. In countries like Sri Lanka, it is almost impossible to question the party members in the executive and remain in the party. Read the rest of this entry »

Rajiva Wijesinha

August 2019
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