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One year has passed since the appointment of the new government. Undoubtedly, some changes have taken place and further changes are being discussed. However, there is one very important – perhaps the most important – issue, which has been entirely ignored. This fundamental omission concerns the stability of Sri Lanka as a nation; it is something that underpins the achievement of peace and the economic progress of the nation. The elephant in the room that has been ignored is the ability to enforce law in Sri Lanka.

Currently, all these institutions are in extremely dysfunctional states. The citizens of this nation suffer in a state of anarchy. The word anarchy here refers to the failure of the State to enforce the law through its legitimate agencies, such as the police, the corruption control agency, the Attorney General’s Department that is involved in the prosecution of offenses, and the Judiciary that is meant to adjudicate and ensure justice.

This anarchy is, of course, not a problem that has been created by the present government. It is a product of many factors, which includes the failure of the infant State, which came into being on 4 February 1948, to grown up into an adult State. The growth of an infant state into an adult one means that the state is able to develop just laws and is able to enforce those laws through its legitimate organs.

The Sri Lankan State has, however, not yet learnt the basic skills of running a state apparatus. This has been the cause of many problems. These problems include extreme forms of violence, which developed, particularly since 1971 and for many decades after, and serious conflicts relating to the inability to provide equal protection of the law to everyone, including the minorities. Despite the present government not having a hand in these factors, without solving this problem, it cannot help Sri Lanka attain any of the dreams it has spoken about, or help realize some of the dreams people now dream about.

Practically speaking, a person who sets out to pursue his or her dream should have a vehicle to travel in. For a government, this vehicle is the apparatus of the state, i.e. the legitimate organs of the government. If these legitimate organs are broken in the way the engine of a vehicle is broken or the wheels of a vehicle are broken it is not possible to makethe journey without first doing some serious fixing.

This is exactly what has happened to Sri Lanka since independence in 1948. And, it has been aggravated in the last 40 years of conflicts and violence and enormous loss of life and liberty of thousands of people.

The challenge then and now is to make the vehicle capable of moving, capable of carrying the State and the people towards their goals. And, this requires taking all the possible steps to get the essential components of vehicle, i.e. the basic State apparatus, repaired as soon as possible. This, in turn, requires human resources and also financial and other resources.

Therefore, the duty of the government, first and foremost, is to provide these resources, so that the State will once again have a functioning apparatus that the people and the government can work with. To anthropomorphise, it will have the hands, the legs, and the physical organs to work and function.

At the moment, the government has not yet given a thought to this; it has not declared its policies on this fundamental issue, of repairing the essential State institutions to both ensure justice and effectively enforce the law; and there doesn’t seem to be even an attempt being made to consider the same.

That said, an opportunity has arisen where a national discourse is possible on these issues. This opportunity has come as a result of the government announcing that it wants to change the Constitution and that a committee has been appointed to consult people about the reforms they wish the government must embark upon.

Thus, there is a possibility of vigorous discourse, in terms of what the people think are the priorities that should be achieved within Sri Lanka. And, it is to be hoped that all will participate, particularly those who are aware of what constitutions are and what they are supposed to achieve, and that in this participation an opportunity will arise to educate the population for a higher understanding of what the State is all about and how it can and should serve the needs of the people,especially the need for the protection of all persons.

To aid and further this discussion in light of the opportunity that presents,what follows is a brief description of the requirements in a functioning Sri Lankan State apparatus.Currently, there is utter dysfunctionality in the Sri Lankan Police Service, the Prosecutions Department, and the Judiciary, with the term dysfunctional here meaning that these institutions are unable to performtheir most basic duties.

So, what are these basic duties?

The primaryduty for the police begins with the facilitation of quick intake of complaints by victims of crimes and human rights abuse, in a courteous and efficient manner, so that the people have trust and comeforward to make their complaints to the organs of the state.

Following the taking of statements from complainants, the next step is themaintenanceof all the books relating to such complaints, with the highest possible protection, and not to tamper with these documents or allow any kind of distortion.

Investigating into the crimes based on the complaints, according to due process provided for in the Criminal Procedure Code, would be the next basic duty of a functional system. This would require the competence of officers to investigate.

In the modern setting, investigation capacities have been identified, and there are easily accessible opportunities for training to develop capacity for rational and efficient investigating techniques into crimes. Skills, such as the capacity to interview in an intelligent manner, the capacity to gather evidence that could be brought to the attention of the accused so that the accused may be required to explain such evidence, and the ability to effectively use modern technology for investigation, are skills that can be acquired. The skills of using forensic sciences and technology, such as recording and photographic instruments, and many other types of technologies, are constantly being developed and improved around the world, and are available at affordable prices. Competent investigators in the present age must be equipped with such technology and skills.

Next comes the duty of the investigators to provide a faithful record of what they have obtained by way of evidence to the Attorney General’s Department, without making any distortions. And, then it is for the Attorney General to pursue the record, identify if a crime has been committed, and then immediately prepare indictments if such a crime has, in fact, been discovered. This is something that needs to be done carefully, but at the same time efficiently, without the wastage of time.

And, finally we have the turn of the Courts, which have many duties. The first basic duty of the Courts in a functional system is to receive all parties that come to the Court – the police, the prosecutors, as well as the people – courteously and with due respect. Thereafter, abasic duty of the Courts is to conduct the proceedings in the manner prescribed by the law and not to allow any type of delays in this matter.

And, it is this last duty that is the greatest challenge to the maintaining of an efficient State mechanism in Sri Lanka. The delays in adjudication that are taking place in our legal system are a source of many forms of corruption and a source of many forms of abuse of power.

When a result of crime – whether a crime was committed or not – can be known only some ten or fourteen years later, at a time when the society has lost interest in this crimeand its conviction, then the system is a dysfunctional one.

To have a social impact, with a deterrent effect, there needs to be reasonably quick disposal of cases so that the people remember the crime, and they remember the punishment. And, thereby, the society can learn a lesson: to avoid certain kinds of conduct in the future.The failure of Courts by way of delays is the greatest failure, and it is something for which all Sri Lankan governments are responsible.

It is not only the Judiciary that is responsible for these failures; it is the government that must provide resources and all the facilities and also proper persons who are selected only on the basis of competence and integrity to run judicial institutions. On all these matters there have been tremendous backward steps since the promulgation of the 1972 and 1978 constitutions.

If the legal process takes place and takes place quickly, it does not merely solve individual crimes or individual abuse of violations of rights, it creates a state apparatus that the people will see as functioning efficiently and thereby it will bring about order.

It is the loss of order that is considered as anarchy. What prevails in Sri Lanka, as a result of dysfunctional basic institutions, is disorder, and disorder means anarchy.The responsibility for the prevailing anarchy must be taken by whoever is running the government at the particular time. So, despite not being behind the factors that have led Sri Lanka to this state of anarchy, it is, therefore, the new government that bears the responsibility for addressing the disorder that has spread in Sri Lanka, and it is this government that must quickly redress the problem by bringing in the necessary changes in terms of the repair work and the resources for this repair work.

It is these budgeted resources in Sri Lanka that are mostly lacking, and not as much the law. And, it is the duty of the government to provide these resources. If not, the government will fail in its primary duty, and keep the State of Sri Lanka as an infant State and thereby one incapable of serving the needs of Sri Lanka.

By: Basil Fernando

Source:https://www.colombotelegraph.com/index.php/it-is-the-governments-responsibility-to-end-this-anarchy/

Mullivaikaal today is a picture perfect beach with a small fishing community. Boats line the seafront, stuffed with freshly caught fish, sting rays and even tiny sharks. It is hard to imagine that this beach was soaked in the blood of thousands of Tamils in 2009, as the Sri Lankan military indiscriminately shelled the last strip of territory controlled by the outlawed Liberation Tigers of Tamil Eelam (LTTE). The fishermen say they were allowed to return here in 2012, and the physical signs of massacre have mostly been erased now, apart from a few sand bags in a crater behind the beach. But the pain is still etched onto the memories of the survivors, and many live in ramshackle shelters struggling to make a living.

If Sri Lanka’s new president, Sirisena, can reconcile the grievances of the country’s Tamil minority, then Mullivaikaal will be a litmus test. Many of the families here are headed by widows, who lost their husbands in the final months of the war. When I asked a group of them if the new president has made any improvements to their lives, the response was a resounding no. One lady, Uma*, shrugged, held out empty hands and said Sirisena has done “nothing”. The women live in houses built by an Indian government aid scheme. For many, doors are an unaffordable extra in this scheme. Soldiers roam freely around the neighbourhood on tractors and in trucks. Plain clothed policemen turn up to women’s meetings. The beach, for all its beauty, has a very spooky atmosphere.

The Sri Lankan government has made sure that army and navy camps saturate this former rebel stronghold. Garish war victory statues blot the roadside landscape. Signs next to blown up water towers remind the Tamils to “SAY NO TO DESTRUCTION EVER AGAIN”. Driving along the highway, military bases appear every ten minutes, with grand entrances and plush buildings inside. Five-star hotels and key tourist attractions can be found inside some of these bases. Many were built on stolen land, and the displaced widows are told to register their family details with the army to have any chance of getting it back, a crude piece of bureaucratic intimidation that keeps them landless. The women say life here was better under the rebels, but that way of life has now been destroyed.

Remembering the dead

May 18 is the sixth anniversary of this destruction. All around the world on this day since 2009, Tamil people have gathered in huge numbers to remember their dead. Inside Sri Lanka, the mourning has had to happen in secret. The first year after the war ended, the Tamil Civil Society Forum tried to hold a commemoration service with priests, but hundreds of soldiers arrived outside. The army said to the organisers “If you do it I will suspect you as an LTTE sympathiser”. I.D. cards were taken from everyone and police went to priests’ homes at night and threatened to shoot them. But with a new president in place, activists are testing the waters of the so-called new democracy, and seeing what they can get away with.

“This year the commemorations will happen in public”, Father Elil Rajendram assured me. But as he is choosing a location for the memorial service in Mullivaikaal, a mysterious motorbike pulls up behind us, with the riders dressed in Denis the Menace striped polo shirts. These are intelligence officers, Father Elil explains, who are spying on the priest’s preparation. Despite the intimidation, local people still seem determined to attend. Uma says she is not scared to go, as her son was killed at the end of the war. Preparations are happening across Tamil towns and villages. As I arrive in Jaffna to meet another organiser, news comes through that his event has been banned by the police, to prevent ‘a breach of the peace’. The authorities say rival Tamil political groups could clash – a far-fetched scenario. Police seem unwilling to facilitate free assembly, instead inventing spurious reasons to ban or restrict public events.

The Tamil National People’s Front (TNPF), an opposition political party, circumvent the ban by switching locations at the last minute, and gather on a remote beach in Maruthankerni under a makeshift shelter. Buses venture for miles down a pot-holed road, and before long over a hundred people have arrived. Red and yellow bunting (Tamil national colours) is put up everywhere, and lanterns are lit. The commemoration goes ahead, but the organisers say Sri Lankan military intelligence are photographing everyone there. Father Elil’s multi-faith commemoration service in Mullivaikaal also went ahead, albeit under heavy surveillance. Participants started photographing the intelligence officers, perhaps a sign that the fear barrier is beginning to waiver. Hundreds of students and staff gathered at Jaffna university, and commemorations happened in all corners of the Tamil parts of Sri Lanka. A brave performance, but a sinister scene for a so-called democracy.

Tamil National Alliance vs Tamil National People’s Front

The Tamil National Alliance (TNA) is the traditional choice for Tamil nationalist voters, winning almost all the seats in former rebel-held areas. But many people feel that the TNA is not challenging the new president’s spluttering reforms enough. Gajendrakumar Ponnambalam, founder of the rival TNPF, says the TNA leadership gave Sirisena their “unconditional support” when he won the presidency, putting Tamils in a weak bargaining position. Ponnambalam was an MP for the TNA until the war ended, when he split from the party over fears that they were becoming compromised. Parliamentary elections are due any time in Sri Lanka, and the TNPF stands a chance of gaining at least one seat if it can reach out to Tamils who are also unimpressed by the TNA’s recent performance. But Ponnambalam says that going against the TNA with its money, media influence and historic association with the Tamil Tigers will be tough.

Ponnambalam says that even if he does not return to parliament this time, he is more interested in “building power outside the ballot box”, by which he means “mass peaceful mobilisations that could force the Sri Lankan state to make some real concessions to the Tamils”. In three decades of armed struggle, the closest parallel to Ponnambalam’s current thinking was the Pongu Thamil (Tamil Upsurge) events, which mobilised over a hundred thousand people to gather in support of Tamil self-determination year after year in towns across the region. Jay*, who was instrumental in starting those events, told me how they sent ‘animators’ to villages and organised small theatre performances, where local people gained confidence to share their stories, before coming together en masse at the Pongu Thamil gatherings. But he thinks that it could take 5 or 10 years for Tamil people to regain their confidence for that scale of mobilisation.

Protesting sexual violence or threatening national security?

And yet spontaneous protests are sweeping the Tamil regions, after an 18-year-old school girl Sivaloganathan Vithiya was brutally raped and murdered on Pungudutivu island off Jaffna on 14 May. The police allegedly told the girl’s family when they reported her missing that she had probably eloped with her boyfriend. Sexual violence in Sri Lanka has become synonymous with the security forces, but the prime suspects in this murder are Tamil civilians. A Tamil doctor told me that this case was a reflection of a wider breakdown of society under the pressure of a counter-insurgency strategy, where police and soldiers are allegedly pushing drugs and alcohol onto the youth.

Angry school kids have taken to the streets in large numbers and whole towns hundreds of miles away from Jaffna have shut down in hartal strikes. The protests reflect a widespread frustration at the vulnerability of Tamil women, and even a certain nostalgia for times when women could walk the streets safely at night in rebel held areas. But whether the protests will grow into more a sustained movement, like in India after the 2012 Delhi bus gang rape, remains to be seen. Already, hardline Sri Lankan nationalist politicians are branding the protesters as a new wave of Tamil Tiger militants, and calling for a harsh crackdown. Even demonstrations against sexual violence are seen as a threat to national security. The president has promised to create a ‘national security plan’ to prevent a ‘terrorist resurgence‘. On May 20, crowds in Jaffna were met with teargas and 127 people were arrested, as riot police, Special Task Force anti-terrorist commandos and soldiers came out on the streets.

Despite the militarised law and order situation, the UK is still training Sri Lanka’s police, even after the contract expired in March 2015. Staff from the Scottish Police College are currently in Sri Lanka on a three week visit. Their taxpayer-funded ‘aid’ work is apparently focusing on ‘community policing, ethical leadership and organisational management’. Their approach seems at odds with a police force dressed in khaki uniforms, some carrying kalashnikovs, and where the police stations in Tamil towns look more like garrisons. A Tamil Civil Society Forum member told me that “For us Tamils, police and army are in the same category. They both all speak Sinhalese [the language of the majority population]. They were the ones who started the harassment and beatings in our youth. We have not seen any improvement. When the Sinhalese police come to Tamil areas they are different people.”

‘War hero’ day

The fear of a Tamil uprising is something that resonates powerfully among Sri Lanka’s majority Sinhalese Buddhist community and generates strong support for the armed forces. The last president, Rajapaksa, embodied this anti-Tamil sentiment as he vanquished the Tigers and pushed Sinhalese settlers onto Tamil land. Although his personal corruption may have cost him the presidency, he still haunts the political landscape. The new president promised to hold a more respectful Remembrance Day, instead of Rajapaksa’s triumphalist annual War Heroes parades, on May 19. But in the end the difference was mere semantics, as the event looked the same as previous years. “Rajapaksa celebrated May 19 as ‘war victory’ day. These new people have to have an international image to say they are not Rajapaksas, that they are different and commemorate all the minorities,” said Kusal Perera, a Sinhalese journalist, “So what they did was they branded this ‘war victory day’ with a different label, to say ‘war heroes remembrance day’. But the celebrations were exactly what Rajapaksa did. Huge military parades. This is a way of keeping the Sinhala supremacist ideology going for decades to come. All these things are in the package with a different brand name called ‘remembrance day’. But if you go to the ministry of defence website the lingo is different and its still called ‘war hero’ day. It’s like selling the local Arrack with a black label.”

Even in Colombo, Sri Lanka’s capital, journalists who welcomed the new president are sceptical about what change can happen for the Tamils. Lasantha Ruhunage, president of Sri Lanka’s Working Journalist Association, said that the press face less threats now than under the previous administration, but the new president has refused to set up a commission to investigate cases of journalist who disappeared. Many more had to flee the country and still cannot return. Another reporter told me as we walked through two sets of heavy steel gates that his office was bombed twice during the last ten years, by groups linked to the government. A new Right to Information law is being drafted, which could act as a check on corruption, but Ruhunage is concerned that it includes a national security exemption with no definition of what is ‘national security’.

Scraps of land

Sri Lankan politicians have to court Sinhala nationalism and Buddhist assertiveness to stay in power. Even small scale returns of Tamil land are seen as a betrayal. If President Sirisena gives the Tamils too much before the parliamentary election, then Rajapaksa could make a come back at the polls, observers warn. But a member of the Tamil Civil Society Forum said that “If Sirisena does not even try to explain to the Sinhalese electorate why Tamils deserve their land, then he will not have a mandate to address it when he stays in power, and the Tamils will almost certainly get nothing.”

One example is the people of Sampur, who fled their land in 2006 when the Sri Lankan military attacked. Survivors say that the shelling killed 70 residents before they could escape on boats. Since then the thousand or so families have been displaced multiple times, before returning to temporary camps just across the road from Sampur in 2009. In that time, their homes had been bulldozed and the land fenced off by the Navy. Part of it was sold to foreign investors in a 4 billion USD deal to build a heavy industrial plant. But the people of Sampur refused to go away, and in a landmark case for Tamil land rights they finally won some of their land back on 20 May 2015. So far, only about a fifth of the families had got their land back and the government was yet to give any funds to rebuild the homes that it had demolished. When I visited Sampur the following day, the residents were rushing around trying to find what was left of their homes. One family only had a handful of bricks. Drinking wells had fallen into disrepair, mango and coconut trees had lost out to thorny ‘jungle’ trees. Bonfires were being lit everywhere as people hacked down the bushes and franticly tried to clear the land. The men wanted to camp there tonight, to stop the navy coming back and stealing the land again. But it was too dangerous for the women to sleep there too, they said, glancing nervously at the Navy base 100 metres down the road.

If this is Sri Lanka’s ‘new democracy’, then the Tamils are still living in the shadow of the military.

By Phil Miller

Source: http://www.tamilguardian.com/article.asp?articleid=15096

The coalition of political parties and civil society groups that came together to ensure victory for President Maithripala Sirisena at the presidential elections of January 2015 under the theme of good governance is no more. The distancing started soon after the formation of the new UNP-led coalition government and the implementation of the 100 day programme. Sharp disagreements began to emerge within the political parties in the government on issues such as the extent of power to be taken away from the president and given to the prime minister in terms of the 19th Amendment. The practice of good governance itself came under scrutiny due to the problem of the bond issue by the Central Bank that has continued to fester with damning disclosures coming to the fore. The inability to pass the 20th Amendment despite the commitment of the president showed the waning of his influence in parliament.

However, the desire of people of all walks of life to have a government that acts according to principles of good governance continues to find its expression in civil society. The better educated sections of the voting population especially in the urban areas, and the ethnic minorities who were at the receiving end of lawless rule continue to value good governance. The March 12 Movement, which intends to hold political parties to their promise to only nominate candidates who abide by the values of good governance, and who are not corrupt, violent or contravene basic standards of political conduct is an expression of this. During the past fortnight they have been going around the country collecting signatures to meet their target of one million. This is a declaration that has also been signed by the leaders of all major political parties, including the president, prime minister and leader of the opposition.

In the context of the exposures of corruption and promises made of good governance during the presidential election campaign, and the continuing civil society desire for good governance, the decision of President Sirisena to agree to nominate the former president has come as a major surprise. During the presidential election that took place in January, the parties that supported President Sirisena, and the president himself, made it clear that the practices of former president, Mahinda Rajapaksa, were the very epitome of what had to change. The way in which the former president had concentrated power in himself and his family, and the abuse of power for personal and monetary gain, was highlighted in the election campaign. But today, in a turn of events that is shocking to many who sought a new Sri Lanka, the former president is back in the SLFP and will presumably be campaigning on the same platform as the president.

Silent Revolution

Political parties are machines meant to capture and retain political power. The problem for President Sirisena has been his dual role as president of the country committed to good governance, and his role as president of the SLFP committed to giving his party members the best chance of electoral victory. Unless there is a higher morality at play in society that affirms, as the March 12 Movement is saying, that some things cannot be done, such as nominating those who are corrupt and violent to hold office, political parties will nominate them to win elections. In the absence of this higher morality, and as the leader of the SLFP, President Sirisena was bound to give deference to the majority opinion within his party. Their argument was simple and logical. The party would do best if President Sirisena and former president Rajapaksa were on the same side and did not divide their forces. As a personality who is non-authoritarian and in the absence of any institutionalization of the values of the March 12 Movement, President Sirisena seems to have felt that he had no option but to accept the wishes of the majority.

MaithripalaIt is a time honoured observation that politics is the art of the possible. The compulsion of securing victory or the best possible result for his political party at the general election seems to have forced President Sirisena to permit the former president to contest from within the party, even though the former president’s practice of governance when he was in power was in direct opposition to the fundamental precepts of good governance. However, it is also worthy of note that no sooner had he agreed to the nomination of the former president, President Sirisena promised that would not abandon good governance or permit those who are corrupt to ruin the country again. He recalled that his presidential election victory “brought about a change which the country needed. The expectations of the people who brought about the silent revolution will not be shattered.”

In bowing to the wishes of the SLFP to bring former president Rajapaksa into the electoral contest, President Sirisena has been democratic to his party members. He has heeded the voice of the majority in the party who wish to win at the forthcoming general elections and believe that the former president’s presence at the campaign will contribute to their victory. However, the active presence of the former president during the election campaign, within the party and in parliament in the future, does not necessarily mean that President Sirisena will abandon his commitment to good governance. It is still possible that having led his party to the best possible electoral outcome, the president will be able to obtain the cooperation and loyalty of his party members after the elections to institutionalize good governance in the country.

President’s Role

Former president Rajapaksa has shown himself to be a resilient politician. When he lost the presidential election with two years left of his second term, after a bitterly contested election, it seemed unlikely that he could have staged the comeback that he has. But though he has been brought back into the SLFP as a candidate for election it does not necessarily mean that he will command the same degree of popular support he once enjoyed. At the presidential election in January the former president had the benefit of unlimited state resources, including government money and media, which were used in a way that contravened election law and for which crimes some of the former government members are facing prosecution. He got 5.8 million votes, but still lost. This time around neither the former president nor the SLFP will have such advantages. They no longer hold governmental power during the election. In addition, during the past six months there has been a stream of revelations of misuse of power and corrupt practices.

The likely scenario at the forthcoming general elections is that no single party, or alliance of parties, will get an absolute majority in parliament. While the former president’s entry into the nomination list of the SLFP will prevent the breakup of the party and its campaign, it will also alienate a significant sector in society who are looking for good governance and who will now need to look elsewhere for their political representation. The UNP, which has been out of power for most of the past two decades, and which showed the possibility of a change in political culture and governance over the past six months, is most likely to be the beneficiary. In particular, the lifting of the fear psychosis that held society in mental chains and the steps towards the reintegration of the ethnic and religious minorities into the mainstream of society came almost instantaneously due to the shift in the policy and outlook of President Maithripala Sirisena and the UNP government.

In the eventuality that no one party secures a majority in parliament the role of the small parties and ethnic minority parties will increase. This will mean the formation of a government in which power is checked and balanced. In these circumstances the role of President Sirisena who, despite the passage of the 19th Amendment, continues to be vested with significant executive powers, will be crucial. The campaign of the March 12 Movement and other civic campaigns need to be strengthened so that the President is constantly reminded of, and supported in, his commitment to good governance even in the new circumstances.

By Jehan Perera

Source: https://www.colombotelegraph.com/index.php/the-pursuit-of-good-governance-must-continue/

Restoring good governance in the political sphere was the main promise made by the incumbent President at the presidential election in January 2015. It was considered that good governance would usher a new era to Sri Lanka by paving way for the creation of justice-based rule and a society responsible and accountable for its actions. 

Now that the election is over and a new President is in place, all systems are being directed toward introducing political reforms but the promise has been delivered only halfway through. In this political reform exercise, what is missing is the introduction of an effective mechanism for assuring economic policy governance without which good governance exercise becomes incomplete.

Good economists and bad economists

The rationale of economic policy governance could be explained by drawing on the viewpoints expressed by French economist, philosopher and legislator Frédéric Bastiat in two of his publications, one in 1848 and the other in 1850.

In the first publication, ‘Selected Essays in Political Economy’, Bastiat has distinguished between a bad economist and a good economist. A bad economist would see only what is seen at the moment and upholds a policy if it contains, at the very first glance, perceived benefits to society. A good economist would see through the effects of the policy that would come subsequently as well. Since such subsequent effects cannot be seen, they have to be foreseen. A good economist, therefore, confines himself to both seen and to be foreseen.

Economic policies which are being implemented by those economists in the government bureaucracy tend to overlook this ‘to be foreseen’ aspect because such an approach does not serve the objective of their political masters, namely, political expediency. Hence, they uphold only what is seen. If ‘to be foreseen aspects’ bring in unsavoury effects, the policies pass unexpected miseries on people who are supposed to be supported by them. Hence, it is necessary to assess both the ‘seen aspects’ and ‘to be foreseen aspects’ before any policy is introduced. This is the starting point of economic policy governance.

Legal powers of governments are to protect property and not to destroy it

Bastiat in his 1850 publication, ‘The Law’, has remarked that law is simply “the collective organisation of the individual right to lawful defence”. The right referred to here is the right to person, liberty and property. The lawful defence involves the use of force to defend oneself and not to destroy the right of another to his person, liberty and property.

“And this common force”, says Bastiat, “is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all”. In such a society, according to Bastiat, order will prevail among the people in thought as well as in deed. It therefore, carries rights as well as responsibilities: right to protect oneself and responsibility not to destroy another’s. If the government does not intervene, says Bastiat, it would cause to develop a system in which people’s wants and their satisfaction would develop in a logical manner.

Explains Bastiat this logical manner in The Law: “We would not see poor families seeking literary instruction before they have bread. We would not see cities populated at the expense of rural districts, nor rural districts at the expense of cities. We would not see the great displacements of capital, labour, and population that are caused by legislative decisions”

Labouring painful, but plundering easy

Bastiat remarks that man can live and satisfy his wants by using his labour and mental faculties to natural resources ceaselessly, thereby giving birth to ‘property’. But man can also acquire property by plundering those developed by others. Since this is the less painful and easier way to acquire property than expending one’s labour, there is a natural tendency, according to Bastiat, for plundering rather than labouring. Because of this natural tendency, Bastiat says that neither religion nor morality can stop people from resorting to plundering of property owned by others.

Though the force of law is to be used to stop plundering of property, alleges Bastiat, those who wish to plunder would acquire power to make laws that enable them to engage in lawful plundering. The result is a chain of events that converts law, instead of an instrument of protection, to an instrument of lawful plundering.

Governments exact private resources

Modern governments, for practical reasons, cannot be relegated to laissez faire governments with least intervention in the economy, though that has been the most ideal form. Hence, powers have been given to governments to frame economic policies to lead nations to prosperity, a common goal of all nations. These powers enable governments to exact resources from society through taxation, coercive expropriation or generating price inflation in the economy and expend the same back on society.

The criterion to be used by governments in this seemingly public good delivering exercise is simple: What is delivered to society should be more than what is exacted from it. But these powers, contrary to the good intentions they underlie, could be abused by bad economists in authority. They could just highlight only what is seen and put into effect systems that permit lawful plundering of property developed by one class by a class they favour. Such bad economic policies bring in a loss to society on a net basis highlighting the need for establishing proper economic policy governance systems.

Institutions are values and beliefs in society

In modern times, plundering of economic resources has been explained as the cause for some nations to fail while others to succeed by two economists, Daron Acemoglu of the Massachusetts Institute of Technology and James A Robinson of Harvard University. In their 2012 book, ‘Why Nations Fail: The Origins of Power, Prosperity and Poverty’, the two economists have argued that it is all to do with the nature of institutions a country has. Institutions for economists are not the institutions which are commonly meant in society.

In economics, they mean ‘the rules influencing how the economy works and the incentive structure that motivates people to do what they do’. In other words, institutions are simply the values, beliefs and behavioural patterns that guide a nation as a whole. This is equally applicable to individual units functioning in an economy such as a family or a company and to their aggregation at national levels which are called nations. They have called the type of institutions that cause nations to fail as ‘extractive economic institutions’; in the opposite, those who contribute for nations to succeed are called ‘inclusive economic institutions’.

A classic example, according to Acemoglu and Robinson, to illustrate this has been provided by North Korea and South Korea which are made of the same ethnic stock, the same geographical attributes and the same natural endowments.

North Korea drives youth to despondency

Teenagers in North Korea are beset by a common institutional structure: growing up in poverty without entrepreneurial initiative, creativity or adequate education that equips them for skilled work. The accepted value system is that even if one works hard, one is not able to enjoy its fruits since it is immediately appropriated by the state. It forces some of them to get into illegal economic activities which are high cost and high risky. For others, it is a life of despondency.

But in the South, the youth have prospect of growing up into success through good education and excellence in chosen vocations. They are aware from early in life that if they are successful as entrepreneurs or workers, they can enjoy the fruits of their hard labour. They have the prospect of improving their standard of living. The institutional structure in North Korea is extractive while that in South Untitled-2Korea is inclusive.

In extractive institutional systems, the state plunders the fruits of hard work by its population through various devices and apportions them among those who support or are made up of the top echelon of the government. Say Acemoglu and Robinson: They are “extractive because such institutions are designed to extract incomes and wealth from one subset of society to benefit a different subset”.

In contrast, “inclusive economic institutions create inclusive markets which not only give people freedom to pursue the vocations in life that best suit their talents but also provide a level playing field that gives them the opportunity to do so”.

Facilitating politicians prosper extracting economic institutions

Acemoglu and Robinson say that extractive economic institutions are prospered by the type of the political setup prevailing in a country. If the political parties or those who lead political parties wield exclusive political power, that is, only they could engage in illegal acts with impunity and not others, the whole economic system is converted to an institutional system that preys on others to sustain itself.

Extracting resources from others is considered a normal and moral activity by politicians and those who are around them. The values that are implanted into the psyche of all those in society have only one element. That is, robbing from society, either through government or through the market by means of franchises bought from politicians, is a normal legitimate activity. In such a system, misusing state property for private gains is considered an innocent activity which should not be an offence to be handled by law enforcement authorities or an immoral act to be discussed publicly by civil society. Thus, all institutions in government or in civil society are converted to instruments supportive of extraction.

An example was the recent downplaying, by the former President as a very trivial act, of using some 20 odd vehicles belonging to the State for private commercial gain by a top politician in Sri Lanka. Such intolerance of the acts of extraction supported by its justification in public leads to the establishment of a value and belief system endorsing what extractive economic institutions do in society.

Wholly inclusive economic institutions are the best

Economic policies can create either extractive institutions or inclusive institutions or a mixture of both. Extractive institutions will plunder resources from beginning to the end. Inclusive institutions will prosper resources and allow citizens to enjoy the fruits of their labour.

The mixture of both extractive and inclusive will provide a better deal to society depending on the relative importance of the extractive side or inclusive side in the whole institutional structure. If the extractive side is preponderant, then, it is as bad as extractive institutional setup created by the first type; in a setup where inclusive type is preponderant, it is still acceptable though it is not the ideal setup which a society should aspire to have. That is because it does not allow a society to have the best for its future.

Dismiss extractive institutions

So, what is to be dismissed by a society is a structure in which institutions are wholly extractive or preponderantly extractive. What is to be aspired is a wholly inclusive institutional structure; a structure where inclusive aspects are preponderant maybe accepted as a temporary arrangement until a society moves to a wholly inclusive institutional structure.

Economic policies should not prosper extractive institutions

So, what is the responsibility cast on economic policy makers? They should avoid policies that lead to wholly extractive or preponderantly extractive institutional structures. If any policy leads to a structure where inclusive side is preponderant, they should have that policy under continuous surveillance so that they could adopt measures to change into wholly inclusive institutional structures as the final goal of policy.

Contributors to extractive institutions

How could an extractive or preponderantly extractive institutional structure be established in society? There are two contributors. One is the general policy being implemented by the state favouring or promoting economic extraction. The other is the individual policies that permit one setup of society to extract economic resources from another setup.

Governments’ failure will generate extractive institutions

In the first case, governments’ failure to uphold three good governance requirements will change the entire value and belief system in society. They are the non-observance of the rule of law, violation of property rights and toleration of bribery and corruption in society. When these bad elements are supported by the prevailing exclusive political setup, the nation descends to a perilous state.

The program to introduce constitutional reforms in Sri Lanka after the presidential election in January 2015 sought to address this issue. The implementation of the program only halfway through so far has denied society the benefit which it sought to bring in. Hence, the system of governance in Sri Lanka today is not different from that prevailed prior to presidential election in January, 2015. As such, the country has the same risk with respect to economic policy governance.

Economic policies should be made by technically qualified experts and not politicians

The individual policies are in the hands of the economists working under political authorities. If they fail to assess the outcome of a policy as it pertains to today as well as in the future, the overall impact of the policy, whether it is wholly extractive, wholly inclusive or a mixture of both, is not taken into account. This is the working of the bad economist referred to by Bastiat. The result is a net loss to society.

To prevent such a net loss, economic policy making should be handed to a group of technically qualified individuals instead of leaving in the hand of a single official or a single politician or a group of politicians. Such group assessment will prevent the implementation of policies that do not bring in overall economic benefits to society. Hence, economic policy makers should be made accountable even after they leave office if the policies which they have implemented have brought a net loss to society by allowing one group of people to extract resources from another group of people.

Empower civil society to ensure economic policy governance

These are important requirements which have to be put in place in order to satisfy economic policy governance. Since it is unlikely that politicians would implement them on their own, it is important to empower civil society so that an effective voice could be made whenever there are deviations from the accepted policy.

Source:https://www.colombotelegraph.com/index.php/good-governance-incomplete-without-effective-mechanism-for-economic-policy-governance/

It is with great sadness that I speak today, for the first time as a Member of the Opposition. Last year I recall a member of the Government saying in a Committee that there was no need for an Opposition when members like me were present. He was being critical, but I am proud of my constant quest for reform, in line with the basic principles of Liberalism.

But it is very sad to have helped to have a government elected for the purpose of Reform, and to find no interest in promoting the changes we need to strengthen Accountability, Transparency and Responsiveness to the needs of the people.

I can sympathize with the argument that we need more money, but we must also show that we are cutting down on waste. We must show that we are using money to enrich the people, not to win elections. We must make it clear that this government is interested in development activity, not simply in transferring powers from the President to the Prime Minister and then rushing for an election before the main promises in the manifesto have been fulfilled.

Mr Speaker, money is needed to carry on the business of government, but at present no one knows whose business is what. We promised a Cabinet determined on a scientific basis, but instead we combined Fisheries with District Secretariats, Highways with Higher Education, Economic Affairs with Cultural Affairs and Children and Youth. And then we change things round, but fail to allocate responsibilities to Ministers for over a fortnight. How can you ask Parliament to allow you to raise even more money, when no one has any idea who will be responsible for expenditure and for productive outcomes?

This is not a new phenomenon. Two months after the election, we had a Gazette transferring the Consumer Affairs Authority and the Cooperative Wholesale from the Ministry of Food Security to the Ministry of Industry and Trade. This may have been part of the horsedealing the Prime Minister engaged in, as he explained to those who had supported the present President and were astonished at the failure to adhere to the highest standards of financial integrity in constituting the Cabinet. But when the government seems actively to create room for suspicion, people may wonder whether we are opposed only to excessive corruption, and the Prime Minister believes corruption of a mild sort is acceptable.

The current and past Chairman of the UNP noted, when I referred to corruption in the Ministry of Defence during the last UNP government, and hoped this would not be repeated, that I should not have blamed the Minister, it was someone else who was responsible. But active connivance in corruption, defending the indefensible, is as bad as stealing public money oneself. And it is worse when the government was elected specifically on a pledge of good governance.

Mr Speaker, in those distant days when I was a Minister, and thought this government was serious, I sent the Minister for Good Governance some suggestions on how we could promote this. They combined aspects of the Code of Conduct which we seem to have forgotten about totally. I will take the liberty of tabling three of the papers, on Preventing Corruption, on Limiting the use of the Executive for Political Purposes, and on Removing Politics from Recruitment. I hope there is some interest in this in my friends on that side of the house who I think were sincere in their commitment to Reform, and did not simply want to take over the spoon and help themselves as the last UNP leader who was Head of the Executive declared. If that is all this government is about, Mr Speaker, we must oppose this attempt to obtain yet more money, with no clear agenda to provide the people with value for the money they will in the end have to pay.

Simple regulations to promote Good Governance

A – Preventing Corruption

Schedule

1. The Assets Declarations of Ministers, Parliamentarians, Provincial Councillors and those heading government institutions that have entered into contracts of above a particular value should be made public. They should be uploaded on institutional websites within two weeks of laws / regulations to such effect being introduced.

I am aware that there may be some diffidence about this inasmuch as some

Members of the government may not have declared their assets as required. The law/regulation should specify that no action will be taken with regard to such, provided the declaration is made available to be made public at the due date. They will also be requested to make declarations for each of the last five years.

1. A Commission should be empowered to go into these Declarations, and institute investigations if the assets of any individual have grown disproportionately in the last five years.

The Thai concept of people being ‘unusually rich’ could be brought into play. The Public should be invited to provide information if there is reason to suspect inaccuracies in the declaration of assets. Such information should be investigated, with provision that assets not declared may be frozen, and confiscated if legitimate acquisition cannot be proved

1. Individuals who hand over assets which they cannot prove were legitimately acquired may be given an amnesty, on condition of taking no part in public life for a specific period.

It could be argued that this is a form of impunity, but we should not engage in what could be perceived as witch hunts. Regaining for the country anything that has been plundered, and debarring further such activities for a fixed period, should be enough.

1. Any information provided by the public about inflated tenders, undue costs for contracts with national and international suppliers, acceptance of shoddy construction work or equipment supplied, should be investigated. Individuals handing over assets obtained improperly through such instances may be given an amnesty, on condition of taking no part in public life.

I would urge in particular that attention be paid to the information supplied by Mr Kodituwakku, formerly of the Customs, who had to flee the country because of threats against him arising from his outstanding integrity and efficiency.

1. Officials who felt obliged to acquiesce in abuses should be given impunity for the provision of information with regard to such matters. Provision should be made for such information to be given in confidence.

B – Removing politics from recruitment

Schedule

1. All government institutions should have clear criteria with regard to recruitment, and such recruitment should be the responsibility of state officials, not politicians.
2. All Ministries should have an Appeals Board to deal with allegations of unfairness in recruitment, to all institutions under the purview of the Ministry.
3. Ministries should not issue lists of individuals from which recruitment is to be done.
4. Politicians wishing to recommend individuals for employment should do so on the basis of qualifications and suitability. They should not mention loyalty to party as a qualification. Recommendations should be addressed to the appointing authority.
5. Politicians and others who feel there was unfairness in recruitment procedures or decisions may bring these to the attention of the Minister, with a copy of the appeal to the Appeals Board.
6. Ministers should not make recommendations for jobs which are within any institution under their purview. In case of alleged injustice, they should forward appeals to the appointing authority or the Appeals Board, and request a prompt report and remedial action if appropriate.
7. Making appointments to boards or other bodies directly under the purview of the Minister should be in accordance with clear criteria. Where the Minister has discretionary powers, he should make clear the reasons for appointments where public funds are involved.

C – Limiting use of the Executive for political purposes

• 1. Members of the Executive shall not use their offices or the equipment and services they are given for electoral purposes
• 2. The personal staff of Ministers shall be limited to only such numbers as are essential for the fulfilment of their executive responsibilities. All such staff will be required to provide monthly reports on their productivity to the Secretary of the Ministry which pays their salaries.
• 3. However, given the personal and political needs of all Parliamentarians, their personal staff may be increased as follows –
• 2 coordinating secretaries instead of 1
• 1 research officer as now
• 1 private secretary as now
• 2 drivers instead of 1
• 1 office aide as now 1
• This gives them a total of 7 instead of 5.
• They should also be given a vehicle for their use. This should take the place of the permits which are now readily abused.

4. The personal staff of Ministers should be reduced as follows, and they must all be expected to report to work in the Ministry unless the Minister had given them leave, as informed to the Secretary

• 1 private secretary as now
• 1 coordinating secretary instead of 2
• 1 public relations secretary
• No media secretary, the work should be done by the Ministry media personnel, who should be selected in accordance with clear criteria
• 2 drivers, without provision for a driver for a back up vehicle. If needed, such a driver should be taken from the Ministry pool.
• 1 office aide instead of 2, since the Ministry staff can be allocated if needed.
• 2 management assistants instead of 5. At least one of those should be functional in the Official Language which is not that of the Minister. Any further assistance may be provided by regular Ministry staff.
• This gives them a total of 8 instead of 13.
• The Minister should have at most 2 vehicles. Personal staff should have at most 2 vehicles rather than the 5 that are now available.
• The qualifications of all personal staff paid by government Ministries should be made known to the public, along with the responsibilities entrusted to them.

By Rajiv Wijesinghe

Source: https://www.colombotelegraph.com/index.php/simple-regulations-to-promote-good-governance/

There is much discussion now on the independence of the judiciary, and this is essential. The politicization of the judiciary in the last couple of decades has been disgraceful, and we must take forceful steps to ensure that political controls, and even political influences, are minimized.

But we must also register that there is more to Good Governance than that. The judiciary too must be responsive to the needs of the people. In particular it must be recognized by all decision makers that justice delayed is justice denied. It must also be accepted that, if the cost of justice is prohibitive, it will become the preserve only of the rich. Simply equity demands that unnecessary costs are avoided.

During the election I was privileged to meet Nagananda Kodituwakku, who is now best known as a Public Interest Lawyer. But he has also served the people ably in a previous incarnation, when he was a senior official in the Customs, who had to seek political asylum when his energy and integrity came in the way of the money making of politicians and those with political connections.

I believe this government would do well to go into some of the problems he had to face. Given his capacity to collect evidence, this might help to pin down some of the corruption that has thus far escaped censure.

But my subject here is good governance, so I will confine myself to the suggestions he has made to improve our legal systems. I have sent these on to the Minister of Justice, but I have had no reply. He was positive when I reminded him of the matter, but I fear that, as happened with the last government, the incapacity to multi-task will lead to lots of productive reforms going by the board.

The first suggestion Mr Kodituwakku made in the paper he sent me was extremely simple, and could easily be implemented.

Abolishing the Court Vacation system.

As he explained, ‘The present Court Vacation system is a legacy from the British Colonial Rule. The UK has abolished this system long time ago, taking into consideration the valuable time being lost as a result of the said vacation system. In Sri Lanka however, this practice continues unabated, causing tremendous delays in dispense of justice.’

He also suggested that specific call-in time be allocated for all cases, and productive use of court time

As he put it, ‘In Sri Lanka litigants, government officials, lawyers waste away their valuable time in Courthouses until their cases are being called. In the established democracies like UK from where we have inherited our judicial system the parties to a case are notified with a specific time to attend Court for their respective cases. Sri Lanka ought to adopt a similar system to save precious time and energy of the people attending court. In Sri Lanka the irreparable loss of man-hours is immeasurable due to the absence of such a system.

Connected with this perhaps was his suggestion that there be a ‘Compulsory time scale for Court sessions – Sittings in the entire Court system shall be made from 09.30to 4.00 pm. At any given time, a large number of cases are held up in the superior Court system downwards causing enormous economic and financial to all concerned.’

Thirdly he noted the need for More effcient Record Keeping

‘The current system is based on paper based case records. This system has led to various issues such as losing of case records, storage issues and inability to provide information swiftly as and when necessary causing tremendous to Court Staff, from Registrar downwards.

Therefore, it is suggested to introduce an effective computer based record keeping to the entire Court system.’ What he does not note is the possibility for corruption in the prevailing system, with records readily being lost on demand as it were.

He also wanted Strict adherence to the Rule Book ‘At present, the adherence to the Rule book is not being strictly followed, causing enormous losses to litigants. For instance, in the superior court system, it is observed that the Attorney General is given preferential treatment over Rule Book. This needs to be stopped forthwith.’ I should add that, when I convened the Task Force to expedite action on the Human Rights Action Plan, I tried to get the then Chief Justice to tighten up the Rules procedure. We brought this up too in the Parliamentary Consultative Committee on Justice. But there seemed no interest in moving on the matter.

Kodituwakku also addressed another issue we had taken up in the Human Rights Action Plan when he wanted stricter procedures regaring

Producing accused before the Magistrate for remand custody

‘When an accused is produced before the Magistrate to be placed in remand custody, the magistrate shall see him personally before making any order. And the accused shall be given an opportunity to make a statement if wishes to do so, which shall be recorded with the signature of the accused person obtained by the Magistrate.’

Indeed this is an area in which we need to strengthen the safeguards for the accused, while also ensuring that remanding occurs only when absolutely necessary. We tried to push this through the provisions of the Action Plan, and indeed the former President even introduced the idea of alternatives, in a budget speech after we had raised the issue with him, for instance with regard to drug cases. But we failed to institutionalize a less oppressive system, and in addition to the waste of time and money, we are also wasting lives, given the destruction of young lives caused by remanding into prisons where there is little concern for protecting them from hardened criminals and criminalization.

Kodituwakku also suggested something not tested yet in Sri Lanka which prevails in the other leading democracies to save time money and energy of all concerned and to provide an judicial service to the people. This is

Case management hearing at the beginning

He explains that, ‘For example in the UK, parties are required to specify the time needed to present their case to the Court. Then the Court allocates a specific time frame for each and every case. Once it is done no postponements whatsoever will be permitted. If the counsels are not ready or busy for whatever the reason, still they must make appropriate arrangements to proceed with the steps stipulated by the Court, to finish the case within the specified time frame.’

Finally, in suggesting a more user friendly system for the people who have recourse to it, he noted the need for streamlined dealing with Rights Violation Petitions –

a) Strict compliance with the process specified by law – The Constitution requires [Article 126 (5)] that Fundamental Rights Petitions shall be disposed of within 2 months from filing in Court. But in real terms there are cases over 2 to 3 years pending in the Supreme Court.

This is a blatant violation of the Constitution, the Supreme Law by the Judiciary itself and needs to be addressed with no excuses whatsoever.

b) Extended time frame for filing Right Violation Petitions – At present only thirty days have been permitted for the purpose which is inadequate and shall be extended up to three months

c) All Compensation orders be made only in personal capacity of the rights violators and not from the public funds

The practice of paying compensations from public funds shall be stopped forthwith. And the right violators shall be held responsible for such payments in their personal capacity.

d) Mandatory disciplinary action against rights violators

Strict disciplinary action be taken against right violators with mandatory dismissal from service coupled with an unreserved apology by the law enforcement agency found at fault by court for use of excessive and/or unlawful force.

By Rajiva Wijesinghe

Source: http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=122047

One of the saddest aspects of the political culture we have developed over the years is the total rejection of continuity, a simple necessity if a country is to move forward smoothly. The present government seems to have rejected this principle completely, in the manner in which it has replaced personnel wholesale. Though it has shown some understanding of the need for experience, it has displayed this by calling back into harness ancient figures from the past.

Mr Paskaralingam being brought back as an Adviser is perhaps the most ludicrous example of this, though he was an efficient Secretary, in Education in the seventies and then to Prime Minister and then President Premadasa in the eighties. But he will be 80 next year and, though he had some experience of Sri Lanka the last time Ranil Wickremesinghe was Prime Minister, he is no longer in a position to know how and through whom to make things move. Then Mr Bradman Weerakoon, who is 84, is an adviser to the Minister of Resettlement, a field in which perhaps he is thought to have experience. He was Commissioner General for Essential Services for a year after the ethnic riots of 1983, before heading back to London.

Comparatively younger, being only in his mid-seventies, is Wickrema Weerasooria who, in addition to advising the President on Banking and Finance and Racial Harmony and Media Freedom, is now also a member of the University Grants Commission. Unlike the other two, he was not a career Civil Servant, but a political appointee in the Jayewardene administration. He served as Secretary to the Ministry of Plan Implementation until 1986, but presumably did not contribute to the increasing problems with regard to Racial Harmony and Media Freedom in those days. He was recycled during the last Wicrkemesinghe Administration, to work with Kabir Hashim’s Ministry of Tertiary Education and Training as well as the Central Bank.

It is perhaps understandable though that this represents continuity for a Wickremesinghe administration. Sadly there was no effort to engage with leading figures in the last administration, many of whom are capable Civil Servants who only need liberation from the politicized approach of several administrations. That has to be done through structural reforms.

Though the Rajapaksa government took this politicization to unparalleled heights, it has been going on for ages. The Jayewardene government began the process of giving enormous powers to political appointees and advisers, Weerasooria, Rakhita Wickramanayake at Air Lanka, Stanley Kalpage at the UGC, Nimal Karunatilleke at the SLBC, and of course Ravi Jayawardene, who set up the Special Task Force. Bu, the culture had been sanctified as it were by the previous government, which had abolished the concept of Permanent Secretaries and handed over those appointments to the Cabinet.

One of the saddest aspects of the proposed 19th Amendment is that it continues to hold the Public Service firmly under the control of politicians. Secretaries to Ministries are to be appointed by the President, which means chosen by the Prime Minister given that the President shall always act on the advice of the Prime Minister. Then the pernicious provision that they cease to hold office when there is a change in government is kept on.

None of this seems to have been noticed in the discussions on the proposed amendment that have taken place. The issue of what precisely is meant by reducing the excessive powers of the Presidency has been subsumed into the simple question of getting rid of the Presidency and replacing it with a Prime Minister with similar powers. What we need instead is the strengthening of the other institutions that act as a check on the overwhelming power of the Executive.

These institutions are Parliament, the Judiciary, the Public Service and, in my view, the Media too. The amendments to Standing Orders that were approved at the Standing Order Committee on February 20th go a long way towards strengthening the oversight powers of Parliament, but typically we have not met since then. After one more meeting we can surely put the amendments to Parliament. Once they are passed, Members of Parliament will have much more control over the executive, while there will be much more transparency so that the public can know about financial management of what is the public wealth.

With regard to the Public Service, a few simple amendments will reduce the authority of politicians. While politicians must have the power to make policy, and ensure its implementation, all this must be done in terms of the Constitution, and systems that ensure justice and transparency. Psrotecting those is the duty of Public Servants, and for them to perform this function effectively, they must have security of tenure, and safeguards against arbitrary appointments by politicians.

In the suggestions I prepared for Rev Sobitha to reduce executive power, I made a couple of very simple suggestions. One was to amend Section 52 of the Constitution to give the appointment of Secretaries to Ministries to the Public Services Commission rather than to the President. The second was to delete the provision that has them vacate their positions when the Cabinet is dissolved.

This second provision is vital, for the Public Service must be seen as that, not the Servants of a particular government in power at any particular time. They too must understand – as indeed many of them do – that they must serve whatever government has been elected by the people. Making them lose their positions when there is a new government is tantamount to forcing them to see themselves as servants of the government in power.

The 1970 government made the change because they felt the Public Service was old fashioned and would not support their radical initiatives. I do not think this assumption was correct, because right through our history and that of other countries, the Public Service has managed to work in accordance with policies of elected governments. But of course if any particular Public Servant seems recalcitrant, or is unwilling to adjust, it is open to Ministers to request their resignations (or suggest transfers). If this does not resolve the problem, the Minister may explain the situation in writing to the Public Service Commission, which can then take appropriate action.

Finally, I have in article 55 made suggestions as to the level to which the Public Service Commission should exercise authority, in proposing that ‘The appointment of public offices of Additional Secretary rank or District Secretary rank of above or Head of Department is vested in the Public Service Commission. The appointment of public officers below such rank shall be the responsibility of the Secretary to the relevant Ministry.’ Elmore Perera, with whom I discussed this, thought Assistant Secretaries should also be the responsibility of the PSC, and that seems to me reasonable, so long as we do not overburden them too much, and allow Secretaries the possibility of having people whom they can work with effectively. But, the bottom line should be that they see themselves as professionals, with a vocation, not the instruments of politicians.

 By Prof. Rajiva Wijesinha

 Source: http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=121593