Constitution Council and 19A woes

Friday, January 31, 2020

When the Constitutional Council (CC) was reinvigorated under the 19th Amendment to the Constitution in 2015, it was hailed as one of the biggest achievement of the new government.

However, the hurriedly enacted Amendment in April 2015 created serious differences between the Executive and the Constitutional Council on issues pertaining to certain appointments to top post in judiciary and public institutions.

Earlier this week, ruling party Parliamentarian Sisira Jayakody alleged that some appointments made by the CC were made due to the certain influences and political purposes and they should be reviewed. He said this at a press briefing held at the Prime Minister’s Office.


The Constitutional Council, a 10-member constitutional authority tasked with maintaining independent commissions and monitoring its affairs was established with good intention. The CC was first established in 2000 under the Seventeenth Amendment. However it was replaced by a Parliamentary Council under the 18th Amendment, and 19A reactivated it.

The problems between the CC and Executive began within a short period. One of the issues is the rejection of the name sent by the then President Maithripala Sirisena for the Appeal Court. These rejections have created a controversy on the appointment or rejection criterion adopted by the CC. Speaking in Parliament in 2018, President Sirisena said that the legitimate child (CC) he produced had been abused. “I helped the formation of the Constitutional Council and Independent Commissions with utmost good faith. 19A has elaborated on the functions, responsibilities and guidelines for those institutes. But we have not done anything in 19A,” he pointed out.

Making appointments

The former President charged that the Constitutional Council had rejected 14 names of judges nominated by him and said that they had been subjected to injustice by the rejection by the CC. “If a name of a judge is rejected by Constitutional Council or a different body, they have a right to know the reason for not giving them a promotion that they believe is rightful, given their service and experience. Even a labourer has a right to know if their legitimate promotion is not given. A judge is not an average person. Because of this matter, judges in primary courts, district courts and high courts are now frustrated. They have lost their hopes. They ask me if that will happen to them as well. Will it be necessary for them too, to go behind someone to get a promotion? Those judges starting from the primary courts have expectations for future. They work hard for them. Therefore, Hon. Speaker, as far as I know, those whose names have been rejected have a natural right to know why their names have been rejected,” the former President lamented in Parliament.

CC Chairman, Speaker Karu Jayasuriya rejected these allegations and informed the Parliament that the CC makes appointments only out of the nominations made available to the Council by the President and no other name has been included out of that. “I would like to record that there had been no untoward incident or and unjust occurred when selecting names from the lists provided to us. We do not see anything wrong there,” he said.

On December 8, 2018, the Speaker tabled a document containing the guidelines that the council should follow when approving the nominations from the President to the council for appointing persons for the posts mentioned in the Section 41 C of the Constitution and when appointing persons to the independent commissions mentioned in the Section 41 B of the Constitution. It has to be mentioned that when appointing persons for the posts those guidelines would be adhered to and due consideration would be given to their seniority, honesty, integrity and impartiality. As the Speaker pointed out, if seniority is the only yardstick then there is no need of the council to make appointments. There are instances where appointments have been made overlooking seniority.

The Speaker chairs the Constitutional Council, while Prime Minister representing the government and the Leader of the Opposition representing the opposition are ex-officio members. One MP is appointed to the council by the President. Two other MPs are appointed with the concurrence of the Prime Minister and the Opposition Leader. One more MP is appointed to the council on the agreement of other parties in Parliament. Three civil society members are appointed to the council only after their name approved by parliament.

CC members

Although, the CC members change after a parliamentary election, there is no provision to change CC members after a presidential election. Today President Gotabaya Rajapaksa and Prime Minister Mahinda Rajapaksa are unable to appoint their nominees to the CC. They are still represented by Mahinda Samarasinghe and Thalatha Atukorale, nominees of former President and former Prime Minister. Opposition Leader Sajith Premadasa too is in a similar predicament, as he is represented by R. Sampanthan. The members of the Constitutional Council cannot be removed and their appointments are valid until they resign from their posts.

One of the reasons attributed to inconsistency in CC decisions the fact that there are no standard guidelines to the CC members with regard to the evaluation of nominees to judiciary services or public institutions. This is a legal lacunae in the 19th Amendment.

There should be key performance indicators (KPI) and other a guidelines to ensure their impartial performances. Otherwise there could be misjudgements in appointments due to judicial temperament or attitude.

The CC is responsible of giving their recommendations for high ranking posts of government institutions such as, Chief Justice and Judges of the Supreme Court, President of the Court of Appeal and Judges of the Court of Appeal, Members of the Judicial Service Commission except its Chairman, Attorney General, Auditor General, Inspector General of Police, Parliamentary Commissioner for Administration (Ombudsman) and Secretary General of Parliament. While the CC could reject a nominee, it has no powers to recommend names to the Executive.

The Executive and the Parliament should give serious attention to the imperative need for establishment of guidelines for the members of the Constitution Council in order to prevent such issue disrupting the public institutions of national importance in future.

Positive ties with India, a key foreign policy focus for SL

January 29, 2020, 7:44 pm

Pictures, it is said, speak louder than words and the picture accompanying this column is sound proof of this. It shows India's outgoing High Commissioner to Sri Lanka Taranjit Singh Sandhu warmly welcoming President Gotabaya Rajapaksa to a farewell reception that was held in H.C. Sandhu's honour at India House, Colombo, on January 27. The Indian H.C. is expected to take up duties as India's ambassador to the US shortly.

Among other things, the picture is, to a degree, reflective of India's readiness to not only engage in bridge-building with its closest neighbours but to also steadily bolster these links. The Indian H.C.'s body language itself is positive and one would not be wrong in concluding that it's in some way indicative of the positive orientation that India has been in the process of introducing into its regional policy. It will be in India's neighbours' interests to respond to their economic super power neighbour in the same positive and proactive fashion if there's to be a degree of cordiality and stability in the inter-state ties of South Asia.

Needless to say, India's neighbours' relations with her have continually attracted controversy over the decades on numerous questions, but it needs to be considered that the India of today is not the India of yesteryear. As should be obvious, India has grown into a foremost power in a number of vital respects over the past 30 years and these substantive changes call for corresponding policy changes with regard to India on the part of her neighbours.

Sri Lanka, for instance, cannot relate to India in the same mindset and policy outlook with which it did over the years. The position of India in the world of today needs to be clearly understood and the policy consequences of this process of understanding need to be insightfully worked out by her neighbours if the latter's relations with India are to be placed on a 'win-win' footing. However, it does not follow from this comment that India's neighbours should relate to her in what may be described as a spirit of subservience. On the contrary, there should be no compromising on the principle that India and her neighbours should relate to each other on the basis of equality. But the extent to which this will materialize will depend on the degree to which mutual understanding is achieved between India and her neighbours on the issues that are seen to vitally matter in their ties.

How these inter-state relations could be solidified was lucidly and concisely outlined by H.C. Sandhu at the farewell function and if the smaller states of South Asia are in need of a clearer understanding on how they could strengthen their ties with India, it was all there in this impromptu address by the outgoing H.C. Dwelling awhile on Indo-Lanka economic relations, the H.C. said that in her journey towards economic prosperity, it was the intention of India to take Sri Lanka along with her. There could be no question of India growing and prospering alone. Rather, it would be shared economic well being between her and Sri Lanka.

However, there are things that Sri Lanka ought to do if she is to benefit from this economic growth spurt, it was pointed out. Sri Lanka, on her part, must increasingly link-up with India on the economic plane and make best use of the growth opportunities that are opening up as a result of India integrating steadily with the global economy. The Indo-Lanka Free Trade Agreement ought to facilitate this process, one is inclined to think. And with India increasingly linking with the world economy, these opportunities for Sri Lanka ought to multiply.

Accordingly, the onus is on Sri Lanka to do the needful on this score. She must establish constructive economic bridges with India or integrate her economy progressively with that of India.

What goes for Sri Lanka goes for the rest of India's neighbours. Being, of course, physically the biggest and economically the most dynamic and growing of South Asian countries, it would be self-defeating for India's neighbours to ignore her presence. The most commonsensical thing for these neighbours to do is to link-up with her and make optimal use of the growth opportunities that are opening-up.

It should be considered that India is in the process of becoming a major gateway to the hugely-growing ASEAN region. Underlying India's 'Look East' policy, for example, or her initiative to develop her hitherto relatively economically backward North East region, is the consideration that once developed this region could increasingly open-up to the ASEAN region where the economic opportunities are growing phenomenally. Consequently, those of India's neighbours that link-up with India's North East could in turn enjoy the opportunity of integrating with ASEAN's dynamic economies.

Besides, there are growing economic linkages between India's North-East and China's South-West region. This is as a result of both major economic powers stressing the importance of making their peripheral regions grow with the aim of integrating them closely. These constructive ties between the countries are usually glossed over or ignored by the international and South Asian mainstream media but these initiatives constitute a marked departure from what is considered dominant thinking on regional economic development. The expectation of both countries is that the development of these peripheral regions would lead to 'synergies of growth' between them and countries of the ASEAN region, some of which are at the doorstep of India's North-East.

If the visits undertaken of late by some of Sri Lanka's political leaders to India are anything to go by, the crucial and growing importance of India to Sri Lanka and the region is seemingly dawning on Sri Lanka. However, it is not clear whether the challenges awaiting this country in their entirety in the Indo-Lanka ties context are being addressed by this country's political leadership.

What is absolutely clear, though, is that the local political leadership should outgrow Sri Lanka's old set ways of thinking on Indo-Lanka relations. It is amply clear that India is extending to us a hand of friendship. We must grasp it in our interest.

A DANGEROUS SEA CHANGE IN SRI LANKA; A FULL REVIEW OF EU POLICIES TOWARD SRI LANKA NECESSARY – INTERNATIONAL CRISIS GROUP

30/01/2020

Since his election on 16 November 2019, Sri Lankan President Gotabaya Rajapaksa and his brother, Prime Minister Mahinda Rajapaksa, have initiated fundamental changes to policies on ethnic relations, the legacy of a 26-year civil war, and the rule of law. Mahinda had previously served as Sri Lanka’s president and Gotabaya as defence minister during the brutal final phase of the country’s civil war, when troops under their command, as well as the separatist Tamil Tigers they fought, are credibly alleged to have committed grave violations of the laws of war. The new Rajapaksa government has reversed or announced its intention to abandon many key legislative achievements and policy commitments of the preceding United National Party (UNP) government, including promises on post-war reconciliation, accountability and inclusive governance made to the UN Human Rights Council and to the EU. The shift in policy, rooted in part in the ethno-nationalism of many among Sri Lanka’s Sinhala and Buddhist majority, threatens to increase ethnic and religious tensions and dangerously weaken checks on executive and state power.

The changes pose a deep challenge to EU policy in Sri Lanka, which has supported ethnic reconciliation, human rights and political stability rooted in inclusive governance – and which now finds itself at cross-purposes with the country’s leadership. Against this backdrop, the EU and member states should continue to press Colombo to honour commitments made by the prior administration to strengthen rights-respecting governance and the rule of law, while making clear that the EU will not support programs that encourage political repression or discrimination against ethnic and religious minorities. Specifically, the EU and member states should:

• Reiterate support for the reconciliation and accountability agenda agreed to by Sri Lanka at the UN Human Rights Council (UNHRC) in Resolution 30/1 (2015) and work to build support on the council for continued UNHRC engagement beyond the resolution’s expiration in 2021.

• Communicate clearly in upcoming high-level meetings with the new Sri Lankan government that the EU has begun an informal review of the Generalised Scheme of Preferences trade and tariff concessions extended to Sri Lanka (known as “GSP+”) and that continued benefits are at risk if Colombo continues on its present course.

• Review funding for UN-administered Counter-Terrorism and Preventing Violent Extremism programs, avoiding support for activities with a discriminatory focus on Muslims, and avoiding any engagement with planned “deradicalisation” or “rehabilitation” programs targeted at Muslims accused of involvement in militant activities without strict human rights protections in place.

• Launch a full review of all policies and programs in Sri Lanka, including development cooperation and contributions to the UN-administered Priority Peacebuilding Plan, to ensure they support efforts consistent with European conflict prevention and human rights objectives.

……
Recommendations to the EU and Member States on Sri Lanka.

EU policies in Sri Lanka will not reverse Sinhala Buddhist majoritarianism, nor prevent the return to authoritarian rule that the Rajapaksas have already set in motion. Sinhala and Buddhist nationalism has deep roots, and challenges to Sinhala nationalism from outside Sri Lanka could further inflame nationalist sensitivities.

Nonetheless, stressing the dangers posed from abandoning commitments on reconciliation and the rule of law to all Sri Lankans – and particularly about the importance of keeping open democratic space so citizens can challenge discriminatory and militarist policies, and build cross-ethnic political alliances to counter ethnic polarisation – is important. The EU, together with Sri Lanka’s other international partners, can and should also work to ensure their funding or other support does not inadvertently help implement policies that further marginalise minorities and threaten their rights – and thereby increase tensions that exacerbate the risks of violent conflict.

The EU’s first challenge will come in late February, when the Human Rights Council considers the latest update report from the UN High Commissioner on Sri Lanka’s implementation of the 2015 resolution.

Should Sri Lanka put forward a resolution to formally repudiate and reverse 30/1, European members of the Council should throw their efforts into building a coalition able to win a contested vote. If Sri Lanka does not put forward such a resolution, members should reiterate their strong support for the reconciliation and accountability agenda agreed to by Sri Lanka as an essential element of the country’s long-term stability, while working toward a council coalition for follow-up action in 2021, when the current resolution expires.

The EU’s 2016 decision to reinstate GSP+ trade preferences to Sri Lanka … gave a significant boost to its economy.

The EU’s 2016 decision to reinstate GSP+ trade preferences to Sri Lanka, which gave a significant boost to its economy, was predicated on government commitments to implement a wide range of international human rights treaties. Particularly important was its promise to repeal the Prevention of Terrorism Act and replace it with new, human rights-compliant counter-terrorism legislation – a promise the new government reversed in January. The government has also rejected or appears unlikely to advance other rule of law and governance initiatives linked to GSP+ and discussed through the EU-Sri Lanka joint committee process – including prosecutions in the “emblematic cases”. After the biannual GSP+ monitoring report due in early February – which will consider only the previous government’s actions – the next report is not due until 2022. The European Commission and European External Action Service can use the leverage that GSP+ benefits provide by communicating in its next joint commission meeting and working group on governance that an informal review is already under way, and that the continuation of benefits hinges on whether the government corrects course and begins meeting commitments underlying the EU’s 2016 decision.

With the return to power of a government whose senior officials are credibly alleged to have overseen grave human rights violations under the claimed rubric of counter-terrorism, the EU’s funding for UN-administered Counter-Terrorism and Preventing Violent Extremism programs needs to be carefully reviewed to ensure strict human rights protections are in place, including respect for women’s civil and religious rights as outlined in UN guidelines.

The EU should make clear it supports the ongoing UN human rights due diligence review of its engagement with Sri Lankan security forces, and should avoid funding “deradicalisation” or “rehabilitation” programs targeted solely at Muslims accused of involvement in militant activities.
The EU also should make clear to its implementing partners, UN Office on Drugs and Crime and UN Development Programme, that, if need be, they should redirect EU funding following a full review of their programs’ impact on conflict risk in Sri Lanka.

A full review of EU policies toward Sri Lanka and how they affect conflict risk and human rights probably will indicate that large portions of the UN-administered Peacebuilding Priority Plan (PPP) – a framework for coordinating international support to transitional justice, reconciliation and good governance, which the EU supports financially – will be difficult if not impossible to implement in the current political climate. The EU should support a full review and re-framing of the PPP in light of this and should consider prioritising support to human rights defenders and independent media.
The EU’s conflict review should also extend to its development cooperation. Development assistance – either directly from the EU or through multilateral institutions that receive EU financing – could unintentionally support government-sponsored population transfers designed to dilute the Tamil majority in the northern province and parts of the east.

The full report published by the ICG on Sri Lanka is here

Is There Hope? 

By Upatissa Pethiyagoda –January 29, 2020

Dr. Upatissa Pethiyagoda

 Sri Lankans have become sceptics and possibly harbor an irrational feeling of hopelessness. This is understandable, because hope has quickly changed to despair. We have long been betrayed by electoral promises, only to be shamelessly abandoned. This is one reason why we have changed our political choices regularly – and has little to do with claimed high levels of electoral maturity, but much to do with opportunism and selfish indulgence. We have been duped. For starters, we have spent colossal sums of public money in what is patently a virtually useless exercise. We must convince ourselves that an election (which is said to cost some 600/= million or thereabouts) is really worth it? I do not believe that in most circumstances, such exercises can be considered wise investment. Cut out the waffle about “enthroning democracy” and “peoples’ choice” and such like non quantifiable intangibles, and what do we get? The products generally do not justify the investment. Cost/benefit analyses should help, but “benefits” would defy quantification. If a generalization is permitted, I believe that none of our political parties have ever “won” an election – only that the preceding incumbents have “lost”, but more seriously, the successors have inherited bad habits from their predecessors. Politics is one field in which experience has negative value. Several instances can be cited where “novices” have performed much better than the “veterans” who have no experience other than in politics. It is a fair assessment that those who have proven success in other sectors, are likely to do well as “politicians” too. 

Does the new President reflect a welcome change? Perhaps he does. Some early signs are positive, although seemingly trivial. The image that he has projected of a representative of a small and non- affluent country is laudable. No pomp and pageantry and displays of pretended piety, a reduction of security entourages and other symbols of vanity, a minimum of foreign travel, and when absolutely necessary, being accompanied by modest teams of relevant experts, rather than extravagant bands of free-loaders and relatives, and in general setting good standards for emulation by those below him. In particular, modesty combined with smartness in his garb (no two million Rupee jackets and the trade mark Satakaya) but the affordable bush shirt and slacks. It is amusing to see those surrounding him meanwhile sweating away in suit and tie! Decorum may require some departure, as when he was soldiering in uniform, but this was for  more reasons than mere style.  

A healthy emphasis on discipline. We could certainly do with some simple and no-cost measures – punctuality, courtesy, observance of road regulations, respect for queues, truthfulness, a readiness to greet, smile rather than scowl and a lavish use of “Thank you, Please  and Excuse me” Elders are not “Uncle or Aunt” but “Sir  or Madam”. It is said that in Singapore, chewing gum was banned because some thought that Metro Seats were provided for disposal of “spent” chewed gum! In our context, perhaps betel chewing would qualify.

Many procedures could be modified for public convenience. The unannounced visits of The President to the Department of Motor Traffic and the Airport should be a gentle hint to officialdom that negligence of duty is dangerous! The President cannot personally visit all offices, nor will it be necessary, because the general drift of his actions is clear. So we may hope for an end to the garbage problem for example. Already one senses some awakening and frantic activation, of many sleeping giants.

Many political leaders have had to pay the penalty for surrounding themselves with undesirable stooges. Some have had their sons and daughters do the needful. It takes two generations to breed a gentleman – and there are no short-cuts.  

Sri Lankans are capable of great achievements, as was evident in the way Colombo has been restored to its past grandeur and the way in which the “Invincible” LTTE bit the dust. But sadly, this seems to require a person with a whip in hand. We remember the way the great “Madu walge” and scaffold talk which turned out to be aborted pretty easily. Is GR the required “Whip” man?  

To be candid, there were two fears – the White Van syndrome and dangers of a militarized State. This needs to be negated. The White Vans, rather like Mermaids, Lochness Monsters, Greased Yakkas and Unicorns are sure to exist but awaiting discovery. Two events need to be robustly addressed. One is the sordid flare up of temper in the Phone calls to Ms Fredrica Jansz, and the disastrous showing on the “Hard Talk” programme of the BBC. Perhaps a mere expression of regret and open apology, at least to the nation, may suffice. All of us humans do err sometimes, but genuinely expressing regret is important.

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Attacks on Judiciary in Recent Times

• Politicos have a responsibility to preserve the dignity and integrity of judiciary 

• President Gotabaya desisted from unwarranted criticism of the judiciary before the truth of the matter is established

• Measures of restraint should be imposed on mass media so that judiciary will not be tarnished or its integrity  undermined

• Presumption of innocence described as a golden thread running through criminal law

 

The time has arrived for us to think of potential negative consequences of unbridled and unrestrained attacks made on the judiciary consequent to the release of many audio clips to the mass media. Many of these attacks have been made by politicians whose primary objective is to gain political mileage at the expense of fundamental values that underlie the judicial system. The distinctive feature of these attacks have been its intensely-political character and personal targeting of identified judges. Besides the politician, attacks have been launched by the media, both electronic and print, television commentators and some members of the legal profession. 

31 January 2020

The display of such antagonism towards the judiciary by politicians is bound to eventuate the total collapse of law and order in the country. It is important to remember that politicians too are bound by law and that they have a responsibility to preserve the dignity and integrity of the judiciary.

It is also their responsibility to maintain a healthy legal culture in the country so that the people will value the whole judicial process. They must know the difference between disapproving the conduct of a few judges and defending the judicial system as a whole. But in fairness to incumbent President Gotabaya Rajapaksa, it must be stated that he has desisted from unwarranted criticism of the judiciary before the truth of the matter is really established. It should be remembered that these attacks have been made before any form of action is instituted or contemplated by the authorities against those who are involved in the audio clip drama.

Independence of the judiciary is comprised of two basic postulates, namely the independence of the judiciary as an institutionalised organ and the independence of individual judges. It is an accepted fact that if effective justice is to be achieved, nothing should be done to diminish or undermine the prestige of the judiciary in any manner. Independence of the judiciary has always been considered as one of the cardinal features of the judicial system in a democratic State. Independence of judges requires that decisions are reached without fear or favour.

It is a fundamental requirement to the maintenance of trust and confidence of the judiciary and acceptance of their decisions. Every fundamental rights instrument defends the right of every person in a cause affecting them to be heard by an independent, neutral and unbiased judiciary. However, it should be stated that the current level of attacks on the judiciary is unacceptable as it has gone too far. Therefore, some measure of restraint should be imposed on mass media so that the judiciary as an institution will not be tarnished or its integrity undermined.   

The presumption of innocence has been described as a golden thread running through criminal law. It is this cardinal principle in criminal law, which is in jeopardy, if any proceeding is instituted against those who are involved in the whole drama in the end. It is a fundamental human right protected by numerous international and national instruments. The presumption of innocence is crucial and vital to ensuring a fair trial in individual cases.

It is a clear violation of the presumption of innocence for a politician or any member of the public to make statements implying guilt of a suspect before he is prosecuted in a court of law or any other competent tribunal. This problem becomes graver when there is a considerable public interest due to the nature of the offence and identity of the suspect.

The pretrial media reporting or commenting on the conduct of a suspect before he or she is charged in a court of law is bound to violate the cardinal principle of presumption of innocence. Furthermore, the content and tone of some verbal attacks presented a picture as if all those who are involved in the recent events are guilty before they are found guilty by a competent court or by an impartial tribunal. Criminal justice is based on the fundamental value that it is far worse to convict an innocent person than to let a guilty man go free. Our law is founded on the concept that an accused is innocent until proven guilty.   

There is another aspect to be considered in this connection. Today, politics has crept into practically every sphere of activity in Sri Lanka. In such a political environment and culture, people may be forced to support the dominant or whatever governing party in power for getting their basic amenities and opportunities attended. The society is so politicised that supporting the particular party in power becomes a necessity if a person wishes to climb the hierarchical ladder.

For instance, if you are a government servant, you need to express your party support and political affiliation either explicitly or implicitly or indicate your party loyalty in any other manner for appointments and promotions. It is a fact that in a competitive society such as ours, if you are to go ahead, we need the support of the political party in power and if you oppose the government in any manner, you may be deprived of many deserving opportunities. Every person in society, regardless of their political affiliations and loyalty, is entitled to equal opportunities.

Society too suffers because persons are placed in influential positions not because they are qualified or deserving. This practice will eventually lead to the decline of the quality of service. It is important that a person’s promotional prospects are evaluated on the basis of merit and not by their political affiliations. In such a politicised atmosphere, insidious infiltration of politics into the judicial sphere is inevitable. What can we expect from judges who live in such a political culture and atmosphere?

Judges are also humans who have their own weaknesses and frailties. No person will resist human impulses for opportunities and sacrifice personal ambitions. Politicisation has led to the gradual erosion of hitherto considered free institutions and this process is manifested in politicisation of previously non-political spheres such as the judiciary. Judges going after politicians for their personal advancement like appointments and promotions are inevitable. That is the reality existing in the society at present. Political consideration in such an atmosphere can also play even a minimal role in the matter of appointment and promotion of a judicial officer.   

Despite the recent attacks on the judiciary and on some of its members consequent to the revelations made in the audio clips, the prestige of the judiciary by and large remains as high as it ever was. And the independence of the judiciary is still the pride and boast of our country. And it is one of the best and least corrupt and least venal compared to other branches of government.   

In this context, it is pertinent to remember the following matters. Judicial power has a fiduciary component and judges acting in trust are to account for their conduct to the people in the country. In a country governed by the rule of law, judges are the guardians of justice. Judges have a burdensome responsibility to discharge in the performance of their duty. He or she has the power over the lives and livelihoods of all those who come before court for the resolution of their disputes. Their decisions are bound to affect the interest of individuals or groups present or represented in court.

Today, judges face many trials and tribulations not contemplated by their predecessors. They are required to conform to standards of life and conduct far more rigorous and restricted than those of ordinary people. Judges are mere mortals but they have been entrusted with a task that is supposed to be sacred and divine. It should be noted that they are subjected to the same ambitions, passions, prejudices and fears as other people.

However high the general standard and compliance expected of a judge, there can always be human weaknesses and frailties which can affect and have a bearing on their conduct. They cannot avoid being shaped by their backgrounds and life experiences. Taking on the role and taking oath of office as a judge does not strip himself of prejudices and predilections. Nevertheless, in the performance of their official duties, they’re obliged to observe a very high standard of conduct, objectivity and impartiality.   

The importance of safeguarding an independent judiciary has been recognised by numerous international and regional instruments, as playing a vital role in protecting human rights and other fundamental liberties of people. Thus, Article 10 of the Universal Declaration on Human Rights recognises judicial independence in following terms: Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal in the determination of his or her rights and obligations and of any criminal charge against him or her. Similarly, Article 14b of the International Covenant on Civil and Political Rights provides for the right to a fair and public hearing by an independent and impartial tribunal.  

In 1985, the United Nations adopted the basic principles of judicial independence which declares that the judiciary shall decide matters before it impartially and without any restriction, improper influence, inducement, pressure, threat or interference, direct or indirect from any person or entity for any reason.   

Sri Lanka also guarantees the independence of the judiciary constitutionally by such measures as security of tenure, non-removability except for proved misbehaviour or incapacity and non-reduction of salaries and immunity from being sued.   

No one will deny that any deviance or misconduct or abuse of authority on the part of judges should be thoroughly monitored and appropriate disciplinary measures should be taken promptly without eroding the independence of the judiciary. The task of investigating any misdeed or misconduct should not be left to the executive and legislative branches as there is always the possibility of using investigation as a retaliatory measure for unpopular decisions and exert subtle pressure on judges.

Various investigatory mechanisms are possible to assess any act of misconduct or misdeed. In order to preserve the independence and credibility of the judiciary, it would be appropriate if these investigations are left primarily to the judicial branch of the government. If judges are found guilty of any judicial misconduct, it stands to reason that they should be dealt with appropriate sanctions. The judiciary must be carefully structured to ensure fair play and justice. If an inquiry is held on the conduct of the judges concerned, at such an inquiry, what should be proved affirmatively is whether the judges were influenced in any manner in their decision-making process by their alleged conversations conducted with the politician and former minister Ranjan Ramanayake.

A judge having a conversation or any interaction with a politician itself cannot be considered a misdeed or deviance from the path of rectitude if such conversations have not had any prejudicial impact on their decision-making. Judicial work invariably brings into contact with heads of other agencies to discuss mutual problems they face in their dealings with court, but that kind of integration and coordination should not compromise his or her position as a judge. A judge should have the strength of character to withstand pressure exerted on them by politicians.   

In an age when our traditional institutions are under close surveillance by the media and members of the public, only a rational and dispassionate appreciation of how our judiciary works can protect its integrity and survival of the system which we have nurtured and developed over several centuries.   

When Degeneration Of Parliament Exposed In Sri Lanka

A Member of Parliament cannot engage in any business transaction with the Government directly or indirectly and on behalf of him or any other member of his family.

 

by Victor Ivan-2020-01-31

 

From an architectural point of view, Sri Lanka had a parliamentary building near Galle Face which looked majestic and fitting for a Parliament. The affairs of the old Parliament were carried out in this building in an optimum and dignified manner from 28 January 1930, when it was declared open, up until the time it was shifted to the new parliamentary complex at Sri Jayewardenepura Kotte on 24 March 1982.

 

The new Parliament complex, despite being equipped with modern amenities and having an artistic look, lacked the majestic appearance that a Parliament should have. Presumably, this difference can be said to have symbolically signified the decline of Parliament. A similar transition of symbolic significance occurred to the Judiciary as well.

 

From an architectural standpoint, Sri Lanka had an equally imposing judicial complex with an aura appropriate for an institution which metes out justice. But in the eighties, the Supreme Court and the Court of Appeal were shifted to a new court complex built in Hulftsdorp. Although it is equipped with modern facilities, its exterior can be said to resemble a beautiful Chinese lantern.

 

Japan cannot be regarded as a country which bears a strong record of democracy over its distant past; it was quite recently that it became a democratic country. Similarly, China does not possess a good history as far as the subject of the Judiciary is concerned. The shifting of buildings can be said to have served as symbolically depicting the subsequent decline of the two institutions.

 

What is more important in Parliament is the authority it exercises as the supreme institute of State rule, legislation and policy formulation, and above all to what extent it has discharged its responsibilities, rather than the buildings of the Parliament and the facilities and amenities available. Similarly, the importance of the Judiciary is dependent upon the extent to which it has performed its supervisory role in monitoring the activities of the Legislature and the Executive, in addition to effectively exercising justice in ordinary legal proceedings.

 

Attack on Parliament

 

Parliament came under major attack on two occasions. The first attack took place on 18 August 1981 while all the MPs of the ruling party, including the President and the Cabinet of Ministers, were engaged in a discussion on the Indo-Lanka Accord. The first grenade was hurled at the table at which President J.R. Jayawardene was seated. It rolled over the carpeted floor and exploded. The second grenade flew over the heads of those sitting at the table, fell on an empty seat on their left, rolled to the ground and exploded. Miraculously, President Jayewardene was unharmed. However, Kirti Abeywickrema, a District Minister, died while Lalith Athulathmudali, the then-National Defence Minister, was seriously injured.

 

It was an attack perpetrated by a supporter of the JVP aimed at destroying the group of ruling party MPs.

 

Twenty years later, on 21 January 2020, a Parliamentarian launched a frightening verbal onslaught from the floor of Parliament, disclosing the current deplorable state of the Parliament which can be considered a far more devastating assault than the previous grenade attack. The recent tirade delivered by MP Ranjan Ramanayake can be said to have robbed Parliament of its political legitimacy and sounded a death knell for the institution.

 

According to Ranjan, there are 100 liquor licenceholders, four ethanol licenceholders, 75 sand licenceholders and one horseracing licenceholder among the present batch of Parliamentarians.

 

The data presented by Ranjan is imperfect. There are MPs possessing more than one liquor licence. His list does not include the number of MPs possessing rubble permits, timber permits, passenger transport permits, the number who have acquired state lands, obtained re-export permits, filling stations and Government contracts in various ways and the number who have acquired licences for radio and TV frequencies. We gain a clearer picture of the extent to which Parliament has degenerated only when these deficiencies are completed and the list updated. Against this backdrop, the present Parliament can be described as an illegitimate institution comprised of a vast majority of MPs who are not entitled, both legally and ethically, to serve as parliamentarians.

 

Loss of conscience

 

Although the general public of Sri Lanka is unaware of the legal aspects of these issues, Ranjan’s speech seems to have left people flabbergasted. Surprisingly, parliamentary authorities seem not to be concerned or shaken by this speech. Neither the Speaker nor anyone representing Parliament has come forward demanding an inquiry into the matter to safeguard the dignity of Parliament. The Speaker has not stressed the need for an investigation. Similarly, both the ruling party and the Opposition have refrained from making such a request. In other words, none of the political parties, big or small, representing Parliament, made any attempt to present a proposal to investigate these serious allegations.

 

What does this indicate?

 

Although the degeneration of Parliament remains a secret to the country, it has not been so to the authorities of Parliament and the MPs.They all knew the extent of this degeneration. They have gotten used to it; the repulsive stink emanating from it and the putrid leachate oozing out of it. They have gotten themselves acclimatised to this ugly condition and acquired the ability to endure it without any sense of disgrace so long as it is kept a secret from the public. So much so, that what Ranjan has disclosed was nothing new to them. Perhaps it might have left them with a slight sense of shame as this disclosure was made in public. Yet, one cannot expect it to have shocked them.

 

Apparently, none of them had the courage to demand an inquiry as almost every one of them, to a lesser or greater degree, is likely to be affected and become guilty. This shows that Sri Lanka’s Parliament has not only degenerated but has lost its conscience as well.

 

Legal status

 

Although Sri Lanka had adopted two constitutions, one in 1972 and the other in 1978, subsequent to the enactment of the Soulbury Constitution, there was no legislation enacted by both these constitutions in relation to the contracts entered into with the Government by the MPs. However, both constitutions specifically state that the provisions in the Soulbury Constitution are valid unless and until new laws are enacted in regard to this issue. Therefore, Article 13 (3) (c) of the Soulbury Constitution is presumed to be the valid law for this subject. This position had been confirmed by two previous judgments passed by the Supreme Court - one in respect of MP Albert Silva (Dahanayake v. De Silva 1978/79/80 18 LR-41) and the other against MP Rajitha Senaratne (2000-2SLR-79).

 

Article 13 (3) (c) of the Soulbury Constitution is as follows: “A person shall be disqualified from being elected or appointed as a Senator or a member of the House of Representative or for sitting or voting in the Senate or House of Representative if he, directly or indirectly, by himself or by any person on his behalf or for his use or benefit, holds or enjoys any right or benefit under any contract made by on behalf of the Crown in respect of the Government of the Island for the furnishing or providing money to be remitted abroad or of goods or services to be used or employed in the service of the crown in the Island.”

 

Accordingly, a Member of Parliament cannot engage in any business transaction with the Government directly or indirectly and on behalf of him or any other member of his family. It is not possible for him to buy or lease State land or other State property; he cannot act as a Government contractor or one who sells goods to the Government or buys goods from the Government.

 

The ugly compromise

 

Anyone who does such things cannot contest Parliamentary Elections, cannot get elected to Parliament, cannot sit or vote in Parliament. Under the circumstances, Sri Lanka’s Parliament is in a serious crisis. The existence of the Parliament is totally unconstitutional. A vast majority of Members of Parliament can be regarded as those who have committed the offences outlined above. Therefore, the Parliament of Sri Lanka can be considered a Legislative Council comprised of a majority of parliamentarians who are not qualified to represent Parliament or sit and vote within this August institution.

 

This is not a situation which has arisen recently or by accident. It can be described as an outcome of repulsive and unconstitutional actions initiated deliberately, which have persisted over a considerable period of time, with the consequential degradation and distortion of the entire parliamentary system.

 

Another important characteristic inherent in this horrific cancer is the consensus with which all parties and individuals that represent Parliament act in the face of this ugly scenario, regardless of their position, class, ethnicity, religion or education. All of them can be said to have sprayed tons of perfume at the public’s expense to suppress the bad odour emanating from this putrid cancer.

 

The most surprising thing is the ignorance and appalling silence of the intelligentia and the public media over this ugly situation, let alone the general public.

 

The 19th Amendment was intended to transfer all powers of the President to Parliament while keeping the degenerated state of Parliament as it was. I ventured to point out this situation when the idea of the amendment was first brought to the fore; but the intellectuals who appeared for the amendment lacked even the basic political intelligence to properly comprehend the situation.

 

Just as the presidential system established by President Jayewardene was extremely corrupt, so too was the parliamentary system built into the presidential system of governance. Therefore, the transfer of presidential powers to Parliament or transfer of powers vested in Parliament back to the President, I should stress, will not be a solution to the degenerated situation of the system of governance.

 

JR’s role

 

President Jayewardene can be considered the one who triggered this horrible cancer within the country’s political body. Although he was not a greedy person inclined to amassing wealth, the role played by him in corrupting the political system was immense. He pushed Government MPs into a corrupt stream and in the process, he too had smeared himself with dirt. He enacted certain absurd changes in parliamentary traditions to please his fellow MPs. He increased the allowances of MPs and introduced a system to give better vehicles to them. The most popular method that he adopted to please his MPs was to create a system where they could obtain valuable State land at a nominal price.

 

The Government owned more than one million acres of estate land divested under the Land Reform Act. It was this reserve of public land that was used to make the MPs of the ruling party landed proprietors.

 

It would not be possible for him not to know that granting State land to MPs was contrary to the spirit of the Constitution and parliamentary ethics. This predatory program necessitated that its beneficiaries were stripped of their sense of shame and ethical values. Even if there was the slightest doubt or suspicion in them, President Jayewardene himself set an example, exchanging a barren coconut estate of 50 acres owned by him with a fertile coconut land of 50 acres belonging to the Land Reform Commission. That was how the disgraceful plunder of land commenced.

 

Following the footsteps of their big boss, the ministers and MPs of the ruling party earmarked fertile land that belonged to the Land Reform Commission and had it bought with the bungalows that stood on them at a nominal price, thereby becoming landed proprietors and planters. JR did a lot of things for the members of his family circle and his cronies, which were not superficially and immediately apparent. They too can be treated as unconstitutional and degrading acts. It was he who started the practice of setting up museums for himself or his family members at the State’s expense.

 

The successors of JR

 

The Presidents who succeeded JR pursued the corrupt system introduced by him, by protecting and nurturing it and adding new elements to it. It was President Premadasa who initiated a system of offering radio broadcasts frequencies to his friends. President Chandrika introduced the system of granting liquor licences to MPs. Thus, under this corrupt system, all Presidents, with or without their knowledge, allied themselves with ruling party MPs and adopted a policy of plundering public property in the country. The number of liquor licences issued to MPs during Chandrika’s rule numbered beyond 1,200.

 

There were certain MPs who had obtained four to five liquor licences. While a large number of Government MPs had become landed proprietors and planters under the regime of JR Jayewardene, a substantial number of Government MPs had become bar owners under Chandrika’s rule.

 

The Presidents and powerful MPs used huge development schemes, large-scale purchases and sales as important sources of income for them and earned large sums of money. The process of looting public property and wealth moved forward rapidly, leaving nothing to be looted anymore. The massive bond scam, which everyone knows about, is only one example. Paradoxically, when the country goes bankrupt, the political regime thrives, getting richer.

 

Against this backdrop, what is most tragic is the inability of the educated people of the country to understand the true nature of the plunder of public treasures. At least they were unaware that MPs transacting business with the Government was a violation of the Constitution. The solution they foresaw to this problem was to send educated people or professionals to Parliament. They failed to see the need for serious structural reforms to the system of governance.

 

Even after Ranjan’s shocking revelation, they do not seem to have entirely opened their eyes. They have not demanded an inquiry into the conduct of MPs who engaged in business with the Government. I have not seen a single editorial written about it.

 

In a crisis situation like this, the role of the Judiciary as well as the Auditor-General should also come under discussion.

Rama, Ravana and Ranjan

Apart from his onerous duties as a legislator of the country, Ranjan Ramanayake appears to have fancied himself a corruption fighter, a malaise that undoubtedly holds Sri Lanka in a vice-like grip

“Out, out brief candle, life’s but a walking shadow, a poor player, that struts and frets his hour upon the stage, and then is heard no more: it is a tale, told by an idiot, full of sound and fury, signifying nothing” – Macbeth, Shakespeare

Saturday, 1 February 2020

It could be said that Sri Lanka is a country where fact and myth must necessarily mix. Facing the unflattering realities of the here and now, consolation for us, is in the legend. The fable, not only legitimises the present, it exalts the past. So fervent is our pursuit of the mythology, unbeknown to us, man has become the myth, and the myth has become the man. 

The Ramayana tells us of a time when ‘men’ were big, events dramatic and air travel frequent. In this era lived Ravana, the super powerful king of Lanka, with an evil reputation. There is much toing and froing between the massive land of ‘Bharat’ and the little kingdom of Lanka. Flying to Bharat, Ravana sees the beautiful Sita, the wife of the good Rama. Like, all people notable in the Indian legend, they are high-bred, of Royal lineage. Ravana, besotted, ‘abducts’ Sita, flies back to his island redoubt where he proceeds to hide her.

Devastated, Rama searches the length and breadth of the Sub-Continent for Sita, his true love. Learning eventually that Sita is in the clutches of Ravana the evil king, he sends his trusty Hanuman to distant Lanka to locate her. Hanuman finds Sita, and conveys the love of Rama to her. Enraged by the intrusion of Hanuman, Ravana the mighty king of the island, orders a cruel punishment. He tells his men to set fire to Hanuman’s tail, relishing the long lingering pain to be caused to the impudent monkey.

In many ways the Ravana story embodies the Sri Lankan paradox; global in yearnings, insular in outlook. He covets the foreign princess, yet, knows not the price he will pay. For a man of his formidable reputation, Ravana lacked the foresight to anticipate the consequences of his hasty punishment of Hanuman. Panic stricken, Hanuman runs hither and thither, leaping from building to building, his blazing tail setting fire to them all. Ravana’s cruel punishment to the primate, destroys his own kingdom!

His unwholesome passion for the lovely princess, brings upon Ravana’s end too, falling after a dramatic battle with the righteous Rama. Not only did Ravana overestimate his strength, he also appears to have assessed his intelligence too highly. He did not win the fair lady, her place of imprisonment was discovered, Lanka was set on fire and eventually Ravana perished in battle. The story ends in lover’s meeting, Sita, having walked through a wall of fire to prove her virtue, is reunited with her lord and lover. 

Many centuries later, the waging ‘tales’ of the Ranjan Ramanayake tapes seem to have set the country on fire again, at least figuratively. Tawdry, common, that such rise to high positions is not only a symptom of a fallen society, but also symbolic of a people lacking in the capacity to assess. What standards do we live by, who do we look up to? Not only can Ramanayake boast of being an elected member of parliament, but also claim the winning of the highest number of preference votes in two Districts (from his political party list). That is the country. 

In a parliamentary system, the primary role of a parliamentarian is to legislate. The political party commanding a majority will form the government and provide political leadership, but the implementation of policy is in the hands of an independent public service, executing policy in an objective manner. It is the role of the judiciary to ensure that the system works according to accepted rules and norms.

"For all his efforts to unearth corruption, Ramanayake has little documentary evidence. A telephone conversation could sometimes provide corroboration, but these disjointed, incoherent conversations can go both ways. Rather than proving corruption, they only seem to provide an insight to the jejune minds that rule us. A rank amateur has wandered through the corridors of power leaving in his wake ruined careers, tainted reputations, weakened marriages and hurt souls. We cannot say it better than Shakespeare"

There is no denying that all these concepts, as well as institutions of governance, did not arise out of cultures and ideas prevailing in our country. They developed in distant lands, and, where we are concerned, primarily in Great Britain. From the office of the Speaker (note his very foreign ceremonial cloak and even the mace) to the right of an elected representative to attend parliament unhindered (even if in remand custody) come from conventions and practices evolved in climes vastly different.

Nearly all the freedoms and rights we enjoy today, are borrowed ideas, without the organic development which gave rise to them, ever occurring here. They were adopted as a finished product, with no history of the culture and thought process which created them. The borrowed ideas come here singly, without the other competing ideas and institutions which qualify them and hold them in check. Inevitably, in the adopting country, when these ideas address one problem, having no real cultural basis for the idea in the first place, they give rise to other problems. What works in an orderly society, becomes a problem in a capricious culture.

Somebody built the motorcar, another developed sealed roads. We drive on them as if our car is the only vehicle on the road and our journey is the only one that matters. Someone else invented the mobile phone, and subsequently, came the app for recording conversations. We have not addressed the rights, wrongs and the ethics of recording what is a personal and unguarded conversation with a person who has trustingly offered his friendship. 

Apart from his onerous duties as a legislator of the country, Ranjan Ramanayake appears to have fancied himself a corruption fighter, a malaise that undoubtedly holds Sri Lanka in a vice-like grip. We are aware of many institutions, starting from the Bribery Commission to several later creations that are tasked with fighting corruption. These organisations are staffed by professional persons who go about their work within a legal framework. From what we can observe, Ramanayake has chosen to fight corruption by making bald public allegations, followed by the recording of personal telephone conversations. 

Systemic corruption cannot be contained by staging carnivals. This clumsy, superficial approach only shows an inadequate comprehension of what is after all, a nation threatening problem. You can beat the war drums, but there is no salvo, a great cry and little wool.

Under-development is not only an economic concept, it manifests in many other ways, in attitudes, assumptions, and even aspirations. In a troubled country, it is not only those who are at the bottom of the social ladder who have a long way to go, those who are on top of the pile are also manifestly ‘under-developed’. 

Leave alone nation building, even small institutions are diminished by their ‘leadership’. Misinterpreting their role to be a mere opportunity for self-advancement, almost all office holders use the position to make money and/or gain ‘status’. They thus blunder along, leaving a trail of sullied institutions in a debt ridden, under-performing nation. It matters not what happens to these things, the sole aspiration of our public figures is to remain at the top, come what may! One sure way for them to remain relevant is by periodically making a spectacle of themselves!

At least in the public sector, there is a retirement age to control the damage!

Corruption is essentially a white collar crime. Inducements accepted, lucrative contracts given, commissions earned, tenders fixed in advance; there are any number of ways how corruption works. However, they all eventually end up in a document of some form or the other; a bank transfer, a title deed, minutes of a meeting, a memorandum, a share portfolio, a committee report, a last will; it is these documents that ultimately reveal the path of corruption.

It is not necessary to pass on brown envelopes in a quiet carpark any longer. Today, the corrupt adopt methods which are extremely sophisticated and hard to detect. Money can be given overseas, ‘experts’ can be made to recommend a particular course of action, tenders are tailor made to fit one bidder, inside information shared; the criminal imagination is infinite. 

There are cases like the issuance of bonds, where a small variation in the interest rate, a matter that may go unnoticed in the rarefied jargon of central bankers, can benefit the primary dealer unconscionably. On the face of it, there are no direct losers; the Central Bank makes their money selling bonds to primary dealers, the dealer makes his money selling the bonds to the end purchaser, who will earn the interest and eventually redeem on maturity. Unbeknown to the general public, the change in the interest rate has ensured a windfall for the dealers. The interest rate manipulation could subsequently impact the broad economy, with the entire country paying the price.

We then have the vital energy sector, extremely vulnerable to the corrupters. It is a known fact that our electricity cost is one of the highest in Asia, perhaps a crucial factor in our economic under-performance. Long term sustainable power generations are discouraged, instead opting for continued dependency on power sources that ensure permanent draining of the national wealth to foreign suppliers. It seems the entire sector, from the political masters to the ‘experts’ are in the thrall of filthy lucre. Very little is known of the shadowy operators who corrupt a whole sector to the ruin of the country. 

All these matters can only be proved with hard documentary evidence. How did the bribe taker get his inducement: bank account, land transfer, foreign bank, passed to a family member? How did the bribe giver pass the money: from his account, company account, foreign party transfer, property transfer? In this country, people who have no known sources of regular income have assets in the billions. Surely, they did not all win that money on a lucky chance in Las Vegas!

For all his efforts to unearth corruption, Ramanayake has little documentary evidence. A telephone conversation could sometimes provide corroboration, but these disjointed, incoherent conversations can go both ways. Rather than proving corruption, they only seem to provide an insight to the jejune minds that rule us.

A rank amateur has wandered through the corridors of power leaving in his wake ruined careers, tainted reputations, weakened marriages and hurt souls. 

We cannot say it better than Shakespeare.