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Five years ago the country was full of promise. I believe that promise could easily have been fulfilled, had government not fallen prey to a few rent seekers. What happened, in particular in the last couple of years, was tragic, and I believe a full study of the triumph and the tragedy of President Mahinda Rajapaksa would be immensely illuminating.
But that should be undertaken after more reflection. In this series I will look only at a few measures that could easily have been undertaken without controversy, to have strengthened relations between the government and the people. I am sure many individuals had many ideas, but obviously I can only discuss in some detail those I had personal knowledge of. I will therefore in this series look at some of the work I tried to do, which was stymied more through neglect than deliberate policy – except perhaps with regard to one or two individuals, who could brook no rivalry (something from which President Sirisena too suffered). For this purpose I will go through some of the letters and memoranda I sent over the years, with decreasing impact.
To go back to 2010, President Rajapaksa had succeeded the previous year, against what seemed insuperable odds, in eliminating the LTTE in Sri Lanka. Then he had won the Presidential election handsomely, despite the range of support, national and international, received by his opponent, General Sarath Fonseka. He had also won the parliamentary election that followed, with a healthy majority.
Reconstruction was proceeding apace in the North, and the rehabilitation of former LTTE cadres was moving ahead successfully. The over 4000 suspects, who had been in custody before the conclusion of the war, had been reduced to well under 2000. For this purpose the President had appointed a Committee which I chaired, as Secretary to the Ministry of Disaster Management and Human Rights, and we had received full cooperation from the relevant authorities, the army and the police and prisons officials. And the National Human Rights Action Plan, which had been abandoned during the election period, was being finalized.
I was no longer officially in charge, for I was now in Parliament. The Ministry of Human Right had been abolished and, when I inquired as to what would happen about this vital area, I was told that it would be looked after by the Ministry of External Affairs. But the Ministry was ill equipped for such a task, and indeed it failed to make proper use of my project staff, who had been transferred there. In fact, because of bureaucratic delays, it lost the services of our able consultant Nishan Muthukrishna, and I began to wonder whether the Action Plan was doomed. But then the Attorney General, Mohan Pieris, was put in charge. Though he was very busy, he allowed our meetings to be held in his office, and we were able to move swifty and have a final draft approved by Cabinet the following year.
I had expected to receive a Ministry, since there seemed no purpose in having someone who was not a constituency politician, and had no ambitions to become one, in Parliament without other functions. I gather this had been planned, but the delay in finalizing the election results proved fatal, and I was told there was strong opposition to my being appointed by those who disliked my pluralistic credentials and my support for the 13th Amendment. The Swiss Ambassador at the time had told me she had heard I was to become Foreign Minister, but that seemed far-fetched. Education seemed more likely, but then Lalith Weeratunge told Kumar Rupesinghe, who said he had been pushing for this, that they had found someone far more suitable. Bandula Gunawardena was accordingly appointed.
I did not worry about this, for I thought I should in any case learn more about Parliament, and I had assumed, having known Parliament previously from the days when my father was Secretary General, that members could contribute to legislation and policy decisions. That was intended according to the Standing Orders, which I studied because, unexpectedly, I was put on the Committee on Standing Orders. I had not asked for that, or the Committee on Public Enterprises, but these soon became my main areas of concentration.
With regard to Ministry Consultative Committees, I was not put on those for Defence and for External Relations which I had asked for, given my previous work in those areas as Head of the Peace Secretariat. But I was interested enough in some of the others I was appointed to, including Women’s Affairs and Child Development, and also Resettlement. But I soon found that these were not productive bodies, being occupied for the most part with individual constituency concerns.
I tried to change this, and was happy when Manthri, the organization that monitors the work of Members of Parliament, reported recently that I was the most active in this regard of National List MPs, and in the first ten of all MPs. They were able to do this because, after I pressed the matter, the Secretary General decided to publish the proceedings of Committees. These make clear how few members bother to attend, and indeed how infrequently meetings are held. Indeed, in the over five months in which a government supposedly dedicated to strengthening Parliament was in office, just nine committee meetings were held, whereas there should have been one a month for each Ministry, a total of about 150.
Meanwhile the Committee on Standing Orders came to a standstill. We had proceeded swiftly after our first meeting, at which it became clear that not many of the members had much interest in the matter or any great understanding of the issues involved. But they were happy to let those of us who were keen on the matter – namely the Deputy Speaker, Chandima Weerakkody, Mr Sumanthiran of the TNA and myself – to work intensively. We had redrafted about a quarter of the document when all hell broke loose.
In the last few articles in this series, I intend to look at essential aspects of government that are not normally considered under the term Good Governance. That is generally associated with form, namely accountability and transparency and the entrenchment of procedures that prevent arbitrary and inequitable decisions.
But the substance of government is also vital, and we must recognize that the people who choose governments are generally more concerned with performance rather than process. I shall therefore examine the basic requirements with regard to performance on which governments are generally judged. But before that I would like to look at an area that covers both aspects.
I refer to responsiveness. Governments must respond to needs, and that is why they also need mechanisms whereby those needs can be expressed. The substance of the responses will be the object of judgment, but the selection of areas for action is also of close concern to the governed.
Sometimes however the area for action is selected by outside forces, albeit in the context of local needs. In this context I would like today to look at a field in which it seems that government has absolutely ignored the need to respond, which I fear can have adverse consequences for this country and its people.
I refer to the Report of Pablo de Grieff, the United Nations Special Rapporteur on issues concerned with Reconciliation, who visited Sri Lanka recently. He had issued what seemed a very helpful report following his visit, but this seems to have been forgotten in the drama over the 19th Amendment. We should however realize that swift action on the issues he has discussed is also essential if Sri Lanka is to overcome the problems of the past.
Sadly this government seems as slow about acting on essentials as the last one. The Rapporteur for instance is quite critical of what he calls ‘Overuse of commissions of inquiry leading to a confidence gap’. His general conclusion, that ‘the accumulated result of these efforts has increased mistrust in the Government’s determination to genuinely redress’ violations, is understandable. But we should also register that the Commissions themselves by and large did a good job. It was the failure of government to follow up properly that led to mistrust.
The most obvious example of this is the burying of the Udalagama Commission Report. Given what seemed the determination of the last government to prosecute no one, their failure to act on that Report is understandable. I should add though that I hope that even now the decision makers of that period understand what damage they did to the reputation of the forces by not dealing firmly with aberrations. Given however the very different priorities of this government, its failure to do anything is astonishing.
It was indeed agreed at a meeting of the Government Parliamentary Group that the findings of that Commission should be published, and appropriate action taken, but that decision was not even minuted. The Prime Minister did ask that that omission be corrected, but confessed he had done nothing, and I suspect the matter has not been followed up since. Read the rest of this entry »
I am worried that the commitment of this government to Good Governance is being forgotten in the midst of the various other concerns we have to deal with. But I believe that addressing this issue promptly and effectively will help us also to approach other problems more sensibly.
Since I began work, I have addressed a number of letters on the matter to Karu Jayasuriya since he has been appointed Minister for Good Governance. He is a politician for whom I have the highest regard, and I think he will do a great job, but I believe he should be made aware that this is an area about which the people are deeply worried.
He replied to one of my letters, registering the need to get rid of politicization of everything, to say that this was part of the culture and it would be difficult to make a change. But I pointed out that we must make a start. I think there needs to be greater discussion though of the manner in which the change should be made, and so I have begun this column in the hope that it will provoke debate and discussion.
I will post these articles on my Facebook but I hope others will do the same on theirs, with amendments and changes to popularize their ideas too. In addition I would encourage everyone to write direct to Mr Jayasuriya, so as to strengthen his hand to effect changes.
In particular he must start immediately to draft a Code of Conduct for those who are supposed to serve the public, and who receive public funds. This was promised in the manifesto, and it is a great pity that the public do not know what is being done about it.
I have told the UGC to draft a Code for academics and administrators in academia, and they gave me a first draft but I found it woefully inadequate. If I am still involved and can get the UGC to function again, I will suggest that the next draft be put on their website for discussion. They have already, as I requested, put on their website the criteria for appointment to Councils.
The Committee on Public Enterprises had instructed some time back that this be done, but there was a delay. On my first day in office I inquired what had happened, and was told there was a draft. That did not seem good enough to me, and I told them that, since they had had sufficient notice, I expected a final draft within a week. That was forthcoming, and the Eastern University Council was appointed accordingly. Those appointments seem to have been welcomed, though I also realized there still needs to be fine tuning. It would be useful if those interested checked on those guidelines and commented, so that we can have an even better set of requirements to put into the act when it is being prepared. Read the rest of this entry »
There were many firsts in the election of President Maithripala Sirisena in Sri Lanka: An incumbent president was defeated; parties specifically representing different races and religious groups — the Jathika Hela Urumaya for the Sinhalese, the Tamil National Alliance (TNA), and the Sri Lanka Muslim Congress along with the All Ceylon Muslim Congress — came together on a common political platform; corruption was a major issue in the pre-poll campaign; and now a specific timeframe has been set for reforms.
However, the most important responsibility of the new government will be settling the national question. While the country owes him a debt of gratitude for eliminating terrorism from the country, former President Mahinda Rajapaksa did nothing about the commitments he made in 2009 to ensure inclusive peace.
As a member of the Liberal Party, I urged Rajapaksa to implement the 13th Amendment, which created Provincial Councils in Sri Lanka, but met with no success. I understand that there could have been problems about some aspects of the amendment but those could have been resolved through discussions.
When we negotiated with the TNA, MA Sumanthiran and I found a solution to what had previously been considered the vexed question of powers over land. We met stakeholders, asked them about their apprehensions and assuaged those fears.
Unfortunately, two members of the government acted in bad faith, one even refusing to fulfil instructions the president gave us to act on what had been agreed with the TNA.
Reaching consensus on these matters is a priority and the new government should set a time table for this. Successive Sri Lankan governments failed because they allowed talks to drag on without any purpose.
There has been much exultation in some quarters in Sri Lanka about the conviction of Jayalalitha, but I was glad to see that at least some articles also noted the need for stringent measures in Sri Lanka too, to combat corruption. One article however missed the point, in citing as an example of what needed to be dealt with firmly the Ceylinco case.
The failure to deal with that swiftly, and provide compensation to the victims of the scam, is indeed appalling. But that failure has to do with the delays, not necessarily arising from corruption, of our judicial system. Certainly we also need measures to make our courts move and it is sad that those have been forgotten. Though it is featured in the Human Rights Action Plan, as far as I can see no one has bothered about that plan following my resignation as Convenor of the Task Force to implement its recommendations.
But that is a different issue, and what we are talking about in Jayalalitha’s case is the corruption of politicians. Now this is nothing new, and it also happens all over the world. I remember the scandals in Local Government in Britain when I was a student, more recently we had the horrors of the Bush administration dishing out contracts in Iraq to agencies in which senior officials had interests.
Nearer home however aggrandizement seems to be excessive. The Jayalalitha case is about disproportionate assets, and in Sri Lanka too it is the inordinate greed of those who are plundering the state which has skewered development plans whilst also contributing to the increasing unpopularity of the government. And sadly government seems to be conniving at this corruption, given the mechanisms it has set up this year, with no transparency, to spend public money. Read the rest of this entry »
No, I think India has been absolutely consistent. Like our cabinet, which endorsed the LLRC Action Plan, it believes we need to do much to promote reconciliation, but it believes we must do this ourselves. This time, unlike in previous years, the US and its allies included external intrusion, which goes against the principles of the UN. India, given its leading role in promoting a multi-polar world rather than domination by one ethos, could not support such a dramatic departure from international norms.
Q: In your opinion, what did prompt India to abstain from voting?
Recognition that this sort of intrusion could set unfortunate precedents for all countries that do not play ball with the West.
Q: India’s permanent representative at Geneva cited the ‘intrusive nature’ of the UN resolution as the reason for their decision to abstain. But, were there geopolitical concerns such as countering Chinese influence in Sri Lanka, that could have underpinned the Indian decision?
Had that been the main reason, India might as well have played along with the West, which seems keen on going back to the absolute divisions of Cold War days. Though China has been a solid friend to Sri Lanka, given geographical and economic realities, India throwing its weight behind the West would have left us helpless – and indeed China has pointed this out in urging us always to maintain good relations with India.
Q: India’s decision to abstain would give it a greater leverage on the matters concerning justice and accountability in Sri Lanka as well political aspirations of Tamils. Do you agree?
It should make us realize that we need to work together with India, just as we did during the conflict. India like us was committed to eradicating terrorism, and like the President it saw this as essential for the benefit of all Sri Lankans including the Tamils. But I fear the dwarfs who dominate policy making will continue to sow distrust. Recently for instance there were attempts to convince the President that the Indian government was behind the Tamil Nadu state’s attempt to pardon Rajiv Gandhi’s killers. I cannot understand how that could be believed, and fortunately Delhi acted immediately so the President would have seen the true picture.
Q: The incumbent government has repeatedly failed to honor the undertakings given to New Delhi in terms of implementing a political solution in line with the 13 amendment Plus. So you expect that the government of Sri Lanka would now be compelled to work on a political solution, at least as a gesture of goodwill towards New Delhi?
We should be working on a political solution for the sake of our own people. But clear instructions give by the President are ignored so the impression has been created that he cannot be trusted. This is a tragic situation, given what I believe is his essentially pluralistic vision, but he must now work seriously on implementing the manifesto on which he won election, instead of seeing his main role as simply to win election after election. If he continues to rely on people who have repeatedly let him down, and are only interested in their careers and their fortunes, and see him simply as an instrument of winning elections that none of them could do without him, then the victories of 2009 will soon be lost.
Q: Would Indian support to Sri Lanka serve as a a deterrence against multilateral initiatives by the advanced democracies to push for an investigation into the alleged violation of human rights and humanitarian laws in Sri Lanka?
I hope it will, but we need to work closely with India to make it clear that our own initiatives will suffice to promote human rights in general, as well as both restorative justice and a political dispensation in which all our people can have confidence. We should fast forward implementation of all the LLRC recommendations, and if we have any reservations, we should explain the reasons for this. We should also set up an advisory group, of countries such as India and Japan and South Africa, and perhaps Australia and Brazil too, to help us move forward, and ensure transparency as well as speed.
Q: What should Sri Lanka do to harness the goodwill of India?
First, we need a coherent foreign policy that is based on traditional SLFP values of Non-Alignment. The last of the groupies of the Jayewardene-Hameed era, who ruined our relations with India, is now Foreign Secretary, which is preposterous, whereas the position should have gone to someone like our present High Commissioner in Delhi, who has the confidence of India. Since his term is up, he should be replaced by someone who has good relations with India and Indians. Most important of all, we need a new Foreign Minister, given that his total mishandling of India in 2012 led to them voting against us.
We should also move on the matters that were agreed during the discussions with the TNA. We had suggested nothing ourselves until I was put on the team, and then the TNA responded positively to two suggestions I made – but since two members of our team were determined to sabotage the talks, nothing further came of these. In fact, when Mr Sumanthiran and i had reached a generally acceptable agreement on land, the President was told that I was giving too much away. This was before the saboteurs had even seen our draft, whereas in fact Mr Sumanthiran was accused of the same by some of his team after they saw the draft.
Thirdly, we must stop centralized control of Indian aid, and instead develop systems that will allow for greater flexibility and local consultation. Reconciliation should be an essential component of all aid programmes, and there should be greater stress on human resources development and entrepreneurship. Given how the monopoly of the prevalent model of economic development failed to win hearts and minds, there should be a cabinet sub-committe, headed by the Senior HRD Minister, with National Languages, Skills Development, Agriculture and Water Resources and Management, to develop a blueprint for interventions.
When I was asked recently, in fulfillment of my work on the Human Rights Action Plan, to assist the Ministries of Justice and of Child Development and Women’s Affairs to finalize the draft of an act to replace the Children and Young Person’s Ordinance, I was struck by the absurdity of a phrase which did not seem to worry anyone else at the consultation.
It related to proceedings conducted before a Children’s Magistrate’s Court (which the law sought to establish), and laid down that ‘The Chief Justice and any three Judges of the Supreme Court nominated by the Chief Justice may frame rules regulating the procedure to be followed’ in such proceedings. Leaving aside the question of the Chief Justice selecting any three judges, where I believe there should be greater precision to prevent arbitrary choices, the clause seemed to me wholly wrong headed in making such rules optional.
I was given what seemed to me two mutually contradictory answers when I made the objection. One was that the word ‘may’ in such contexts was generally held to create an obligation to act. The other was that, if there were a ‘must’ and action was not taken, then the law could not come into effect.
If the legislature wanted such rules in place – and obviously there must be rules, to prevent inconsistencies and irregularities – then it should not only make that clear, but should ensure that those rules were in place. My suggestion then was that the clause should read ‘…..shall frame rules regulating the procedure…within one month of this act coming into operation’.
It was granted that this might be effective, but then the question was raised as to what would happen if the Chief Justice failed to make such rules. The answer seemed to me simple, namely that a failure to abide by laws passed by Parliament indicated incapacity, and should therefore warrant removal. Alternatively, Parliament could decide that, were rules not formulated as laid down in the Act, Parliament would then formulate such rules itself. Read the rest of this entry »
A completely new constitution would be best, but since that could take time, there should be swift reform of the worst features of the current constitution.
2. “Ensure the independence of the judiciary whilst promoting transparency with regard to appointments” is what you have said regarding judicial appointments. This is a bit vague. Do you think the President of the Republic should have the ability to directly appoint Judges of the Supreme Court after seeking the recommendations of the Parliamentary Council which will invariably not oppose presidential nominations? This effectively means the President has direct control over Supreme Court appointments. Is this conducive or should this power be curbed in a potential new constitution?
There are three separate issues with regard to the Judiciary. The first is independence with regard to the decisions it makes, which must be absolute. As I put it in the series on Constitution Reform now on my blog, www.rajiva.wijesinha.wordpress.com, ‘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 procedure, as to which the Judiciary must conform to laws, and make rules for itself where the law is silent. I have written at length about the inconsistencies in the way in which judges give out sentences, and how they fail to fulfill their basic obligations of checking on prisons etc.
The third is appointments, where usually on a Presidential system the President appoints. However this should be subject to controls. Requiring the consent of the legislature or a component of it would be good, but consultation also can be effective in preventing hasty or inappropriate appointments. Such consultation should be transparent, which the 18th Amendment permits, because it does not require the Parliamentary Council to maintain confidentiality.
In a Westminster style Constitution, where the Head of State makes appointments, but on the recommendation of the Prime Minister, there is usually no rejection of a recommendation, but the very fact of a second entity being involved makes the Prime Minister careful. So too, if the Parliamentary Council functioned now, the President would necessarily be careful about not putting forward names of those who might cause him embarrassment. Both Shirani Bandaranaike and Mohan Peiris could have fallen into this category, and in fairness to both of them, they should not be subject to rumours but their conduct should have been subject to transparent scrutiny. Read the rest of this entry »
I referred earlier to the need to strengthen Committees of Parliament so that they can provide better inputs into legislation, but recent experience indicates that there is much more that should be done to ensure better legislation for the country. I have realized now that we are perhaps the weakest country with regard to formal procedures, amongst those that can claim to have strong democratic traditions. This may well lead to the erosion of democracy that we simplistically diagnose in terms of people, without due attention to the processes that are so vital for democracy.
This danger is obvious if we consider the current common belief that problems with regard to the Chief Justice arose when the initial Supreme Court judgment on the Divineguma Bill was delivered. When the Parliamentary Group met that day, I suggested that this judgment, following on several previous bills of great importance having failed to get through Parliament in the previous two years, indicated that we needed to be more careful about legislation.
This suggestion was repudiated, on the grounds that the Supreme Court was biased, and even the Attorney General under whose aegis the Bill had been drawn up had found, being now on the Supreme Court, that it needed amendment. Given the different areas of responsibility in the Attorney General’s Department, this did not strike me as evidence of inconsistency, and I am happy to say that now Members of the Cabinet have declared that the Supreme Court had suggested some sensible amendments that government should have introduced from the start.
I believe this vindicates my position, that government has been far too careless about legislation recently. This is not always because of haste, given that indeed one crucial measure has had to be dropped for the moment because of delays at the Legal Draughtsman’s Department. I refer to the attempt of the Ministry of Higher Education to encourage private and non-profit tertiary education, something this country urgently needs if our youngsters are to benefit from the economic opportunities our infrastructural development programmes have created. 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
- ensure the independence of the judiciary whilst promoting transparency with regard to appointments
- promote professionalism in the judiciary
- institutionalize justiciability by making all decisions subject to review
- introduce alternate mechanisms of seeking justice whilst preserving the ultimate authority of the Courts