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qrcode.29720651We have looked thus far at Parliament, the legislative branch of government, which is supposed to pass laws and also monitor the work of the executive. Then we looked at the executive, the active functioning branch of government, and considered the various duties it should perform,

Third we should consider the judicial branch of government, which was considered the only other one at the time the theory of the Separation of Powers was enunciated with regard to government, There are I believe other elements that the public also needs to ensure its security,  from society in general as well as an over powerful government. But there is no doubt that the judiciary is the most important restraint on those who would violate the rights and freedom of the people, and we should therefore look at it in some detail.

Types of law

As we have noted previously, one of the most important functions of government is ensuring the security of its people. When we think of security, it is defence that first springs to mind—the work of the security forces in dealing with external threats. But what is more important in the day-to-day lives of ordinary people is internal security, namely ensuring that law and order is maintained.

Basic concerns in this respect can be seen in the commandments issued by religions, even before codes of law were developed. All religions, for instance, prohibit murder and robbery. Even though such actions are perpetrated by some individuals against others, it is recognised that they have a bearing on society as a whole. Such actions are termed criminal acts, and dealing with them is seen in most societies as the direct responsibility of the government. Unless stern action public action is taken in such cases, the security of the entire society is threatened.

When a case is brought under criminal law then, it is the government that prepares the case and prosecutes the accused. Since these are serious issues, and punishment is severe, the guilt of the accused should be clearly established. It is necessary, therefore, in such cases that the prosecution proves its case beyond reasonable doubt to avoid punishment of the innocent. Otherwise, the accused is acquitted.

Other offences, though defined and dealt with by the law, are seen as affecting individuals alone. So cases such as disputes about land or contracts, or those involving personal relations such as divorce, come under what is termed civil law. In such cases, one person makes a complaint and someone else must respond. They are decided on what is termed a balance of probabilities since a decision has to be reached in favour of one side or the other and the plaintiff and the respondent have to be treated equally. So even a slight inclination to one side of the balance is sufficient for a ruling in favour of that side.

There is also a third type of law which has gained importance in recent years. This is constitutional law, which comes into play when the government is seen as violating the rules according to which it must govern. One aspect of this law is seen in operation when the government wishes to introduce new laws or change the constitution. The courts should decide whether such new laws or changes are in accordance with the existing law. Sometimes governments wish on their own to verify whether their proposed actions are legal. Citizens or groups of citizens can also petition the courts to seek clarification or present arguments alleging that particular bills are unconstitutional, and the government may respond to these petitions. 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 »

One of the more bizarre aspects of the post-conflict situation is the strange combination of forces trying to undermine the security forces in their work in the North. I believe their presence there is essential, and not only for security reasons, which we cannot ignore just because the LTTE in Sri Lanka has been destroyed. LTTE sympathizers are still active elsewhere, as we can see from the determination not to condemn any acts of the LTTE – except only for the occasional general admission that both sides violated international norms, followed by a catalogue of what the forces are supposed to have done, with no specifics with regard to the LTTE.

But it is not only fear that the enormous resources LTTE and separatist sympathizers command will be used again for violence that requires the continuing presence of the armed forces in the North. It is also that they still continue with massive services with regard to the restoration of basic infrastructure. Unfortunately they have not developed a system yet of recording the number of wells they have dug, the houses they have built, the roads they have repaired, the playgrounds they have constructed, so their contribution goes unsung. And trying to introduce coherence into the government narrative is of course impossible, given that it privileges style over substance, but really has no idea of the style that would carry conviction.

Meanwhile the vociferous opponents of reconciliation in Sri Lanka ignore all the work the military has done, and continue to talk of a military presence, which only they seem now to see. Most disinterested observers, on the contrary, are now struck by the absence of soldiers on the ground in most of the North. Interestingly, the assistance provided still by the military is appreciated not only by those who actually supply assistance and see how the military has facilitated resettlement, but also by the majority of the resettled. At Divisional Secretariat meetings, while they continue to draw attention to what they see as shortcomings – and also what is occasionally described, in the Vanni, as the unfair allocations decided on by politicians – there is no criticism of the military.

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I was honoured last week to be invited to a Conference on the ‘Changing Scenario in South Asia: Leveraging Economic Growth for Collective Prosperity’ organized by the Centre for Rural and Industrial Development in Chandigarh. Indian think tanks have always impressed me, and participating in discussions with the range of intellects they bring together has always been a pleasure as well as a learning experience.

This particular Centre was not one of those that is associated with government, like IDSA, the superb strategic analysis outfit that was almost simultaneously hosting another dialogue of particular interest to Sri Lanka. But CRID also attracts government attention and support, as was apparent from the fact that the Conference was opened by the Indian Minister for External Affairs. This indicates the interest the Indian government has in independent thought and analysis, and suggests the direction we too should move in. We must begin consultation of a wider scale, and building up consensus in the many areas in which that would be so easy, if we are to harness all our energies to pursue the immense task of development and national integration that we must now concentrate on.

The Conference was intended to cover a broad range of topics, and speakers were asked to choose from a range of issues, from Economics to Religion and Ethnicity. I thought of addressing two concerns together, namely Security as well as Ethnicity, since it seems to me that, in the current context, they are inextricably linked. I thought however that I should think in terms of cooperation, since we are in great danger of turning our backs on this, both internally and regionally. The solipsistic mindset that seems to dominate national discourse, following the recent vote in Geneva, needs to be overcome, if our national interests are not to be sacrificed on the altar of big power politics.

I have always believed that, to ensure our security, we must have good relations with India. The disasters that happened in the eighties made it clear that, if India were hostile, no one else would come to our rescue. And though commentators with no sense of time or causality still attack India for encouraging terrorist movements in the early eighties, the simple fact is that we started the distrust by trying to become proxies of the West in the Cold War. Unfortunately the West in those days – and perhaps now – has a polarizing view of international relations, and demanded total loyalty, which was combined with unremitting hostility to India, which it saw as a Soviet ally. Read the rest of this entry »

Rajiva Wijesinha

April 2019
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