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By Kshama Ranawana

The recent attempt by the government to re-introduce the criminal defamation law set off alarm bells in the media and concerned civil society actors. Concerted action appears to have stalled the move for the moment but the possibility of it being re- imposed lurks like the proverbial sword of Damocles.

The media industry has enjoyed five years of relative “free expression” with the casting aside of the criminal defamation Bogeyman. The Code of Professional Practice formulated by the Editors’ Guild, has acted as the self-regulating guideline for the media, while the Press Complaints Commission, established in 2003 as an industry initiative is engaged in upholding the standards of media ethics and protecting the rights of readers. It is indeed a commendable effort by the industry to show both the government and the general public that it can police itself without State interference.

So how is the local industry fairing? Are we as committed to the professional code of ethics, and earnest in our endeavours to be balanced, responsible and accountable in our reporting? Are we truly committed to lending a fair hearing to a reader’s grievance or do we exercise the Editors prerogative and ride rough shod over our publics’ rights? Is it enough that we have a code of conduct and a regulatory body to oversee its just implementation?

The idea of self-regulation of the media in Sri Lanka is still in its infancy. In countries where such practices have existed for decades we continue to hear of errors and lapses. In the United Kingdom, the News of the World Royal Editor who adopted unethical practices to obtain information was recently sentenced to a four month prison term while its Editor resigned. While the newspaper re-examined its policies and introduced stronger safeguards, the PCC UK which looked into the matter issued tougher guidelines to the British Press. The case and several other violations by the media prompted an enquiry and recommendations by the Select Committee on Culture, Media and Sport appointed by the House of Commons.

Internationally we see some media organisations taking the lead in appointing Ombudsmen and Peoples Editors in an attempt to be more open to the grievances of the public, in the context of editorial content. In many an organisation, terms of employment make it a contractual obligation that journalists and Editors abide by the Code of Professional Practice. The National Union of Journalists in the UK imposes fines and even suspends its members for breaching ethical standards.

Currently, the New Zealand Press Council established in 1972, is for the first time under review. The focus of the review is amongst others the scope and performance of the Council and whether its mandate is in keeping with changing trends and public perception.

Closer home, South Asian nations have studied Sri Lanka’s self-regulatory system for adoption in their countries. Early this year the Sri Lanka Press Institute was invited to train Maldivian journalists on media ethics in preparation for the launch of the proposed Maldives Media Council.

Selective reporting and biases in terms of politics and the ethnic conflict seem to be the norm in the Sri Lankan media often leading to distortion of the facts; a clear violation of the Code of Professional Practice. It also erodes public confidence in the media.

As a profession the media holds governments and other sections of society accountable for their actions and to deliver on promises made. Should then, the media itself not be accountable for its actions and improve its standards through regular in-house reviews of the genuine commitment to ethical conduct of both its journalists and media executives? [SLPI]

The writer, Kshama Ranawana, is English Complaints Officer of Sri Lanka Press Complaints Commission

By Ayesha Zuhair

The importance of implementing the 17th Amendment to the Constitution and re-activating the Constitutional Council (CC) was highlighted at a seminar held last week. Speakers at the event Dr. Jehan Perera, Rohan Edrisinha, R. M. B. Senanayake and Elmore Perera drew attention to the nexus between independent commissions and good governance, while stressing that democracy requires a politically neutral public service.

The discussion was organised by the Sri Lankan Movement for Justice, Peace and Reconciliation in association with Caritas Sri Lanka – SEDEC and the Organisation of Professional Associations.

With a view to depoliticise the state sector, the 17th Amendment mandated the establishment of an independent, ten-member Constitutional Council to make appointments to key public commissions. Despite its limitations, the law was widely hailed as a move towards a corrupt-free, merit-based system of public administration.

However, the deadlock over the appointment of the tenth member rendered the CC inactive in 2005 and the failure to reactivate it has seen the executive making direct appointments to the institutions coming under its purview. Such appointments have been described as a clear violation of the constitution by many legal experts.

According to the organisers of last week’s event, violations of the constitution by its upholders undermine the country’s credibility in any power-sharing arrangement. “Disregarding what has been held inviolable in the constitution will inevitable lead to questions as to how the government can be trusted to keep their word in any lasting solution to the present conflict,” the organisers commented in their introductory note.

Among the other consequences of the non-implementation of the 17th Amendment is invalidation of the National Police Commission (President has brought the police department under the control of the Secretary of Defence) and the ineffectiveness of the Human Rights Commission. Moreover, democracy demands checks and balances on the executive presidency in order to maintain the rule of law.

Director of the Legal Unit at the Centre for Policy Alternatives, Rohan Edrisinha noted that the present culture of impunity and lawlessness is linked to the absence of an independent CC.

While asserting that the 17th Amendment weakens political power by promoting democracy and good governance, he said that the real reason for its non-implementation is a complete lack of political will on the part of the government as well as the oppositin. “The opposition has failed miserably in keeping this issue alive; in fact it is not even an issue for them,” he stated.

Mr. Edrisinha alleged that two weeks after the new government was elected, the administration sought legal advice on how to bypass the CC and make appointments to several independent commissions. “So I start with the assumption that the administration wanted to rid itself of the shackles imposed by the 17th Amendment,” he said.

He also explained that the inability to hold the President directly accountable for unlawful acts is a fundamental flaw in the constitution. “A whole section of the constitution is not being implemented and there doesn’t seem to be a legal remedy. In most countries there would be a remedy for the people and it is regrettable that we don’t have one in Sri Lanka.”

“The fact that a section of the constitution is not being implemented is not a novel concept; it is true of the 13th Amendment which has not been implemented for 20 years,” he said, pointing out that “Successive presidents have failed to do anything about it since it was passed in 1987.”

Speaking further, he opined that there is nothing to suggest that the CC cannot function without the tenth member as it was only clear that a quorum is needed. Even if there is a disagreement in this respect, the President can still refer to matter to the Supreme Court and obtain a response from the Chief Justice within 48 in order to clarify any ambiguities.

“There may be flaws in 17th amendment, but it still has to be implemented. The presidential system has several flaws, but that hasn’t rendered it invalid; the system is very much operational. A flawed 17th Amendment is better than no 17th Amendment,” he stated. Mr. Edrisinha also questioned the role of certain Members of Parliament, for “collaborating in efforts to stifle democracy.”

Elmore Perera, President-Elect OPA, opined that the Constitution does not give the executive blanket immunity. Quoting Justice S. Sharvananda in Visuvalingam & Others versus Liyanage & Others (1983), Perera said, “Acts of the executive are not above the law and can certainly be questioned in a Court of Law.”

Perera went on to explain that this judgement was made by a nine-judge bench headed by Chief Justice Neville Samarakoon, even though in a minority judgement, Justice Priyantha Perera held that the President enjoys blanket immunity.

“A decision by a nine-judge bench can only be reserved by another nine-judge bench. Where in the world do you refer to a minority judgement as authority? The law does not give blanket immunity to the president. The president has arrogated that to himself with the active support of the judiciary,” he contended.

Mr. Perera also noted that there were several individuals who refused to accept nominations to the commissions coming under the purview of the 17th Amendment, on the basis that they were unlawful. However, those refusals didn’t have the kind of effect that they should have had.

Retired Civil Servant and Consultant to the OPA R. M. B. Senanayake stated that democracy requires a politically neutral public service. “The 17th Amendment sought to set up independent commissions to separate decision should be taken on merit and fairness instead of political considerations to benefit the ruling politicians,” he said.

“So what is in public interest? Should the power of appointment, transfer and promotion of officials be entrusted to the political head – the Minister or President or should it be with the operational official? The answer is that it should be with the operational bureaucrats like the Head of the Department. But these officials work under the Minister and they cannot afford to ignore the influence that a Minister can bring to bear upon them with regard to such matters,” Mr. Senanayake elaborated.

It is necessary to build a buffer between the Minister and the operating officials. This buffer is the Independent Commission which reports only to parliament and is not under the Executive branch of the state which consists of the President and the Ministers, he further explained.

Where the Minister seeks to influence such appointments, transfers or promotions, the official can plead that he has to comply with the scheme of recruitment and procedures laid down by the independent commission.

Dr. Jehan Perera of the National Peace Council said that there was a serious crisis in government despite all the celebrations that were taking place. He noted that it is essential to lobby the legislature and judiciary to reinstate the CC, since the twocomponents are indispensable arms of government which has decision-making power.

Citing the CPA’s recent success in preventing the eviction of Tamil lodgers from Colombo by obtaining leave to proceed in a Fundamental Rights petition, he opined that legal options should not be ruled out since it proved that civil society movements are capable of having a macro-impact.

By Surendra Ajit Rupasinghe

The military victory gained by the State in Thoppigala has raised the stakes and brought the country to a most critical strategic conjuncture. The People’s Alliance government has two diametrically opposed paths it must choose to follow: Either to hold elections in the east, place Karuna as Chief Minister, unfold the ‘Nagenahira Navodaya’ (Resurgence of the East) development programme, consolidate the east politically and militarily, and on this basis, go for an all-out military offensive in the north, with the hope of imposing a final military solution to the national conflict.

The other option faced by the government is to resume negotiations with the LTTE and seek a political solution. We would do well to consider the implications of these mutually exclusive options that are to decide our destiny

Taking the military solution track (1st option) is fraught with insurmountable barricades. To consolidate the east would require an extensive and continuous military presence. It will have to be a military regime on maximum alert, dressed up in civilian clothes.

This extension of military power in the east, while having to wage a decisive war in the north, would easily play into the hands of the LTTE. Of course, the LTTE would retaliate with devastating human bombs in the south, choosing their targets at will. The whole of Colombo, and indeed, the country will have to be put on a 24 hour maximum security alert.

In the east, all the LTTE needs to do is to disrupt the fragile political order with strikes against strategic targets, including military, economic and human targets. The villages along the entire forward defence lines too would have to be continuously protected. The economy will be strained beyond limits.

The humanitarian crisis will intensify and the people made to bear even more intolerable burdens. New conflicts will be generated as the development drive is designed to ‘regain’ and colonise the conquered east, as opposed to building bridges of reconciliation.

As it is, the regime does not have the management capacity to use existing funds for development in normal areas. How it would cope with such a massive development drive to transform the war-ravaged social order in the east and maintain political stability, while mounting a massive military offensive in the north, is an unanswered question. Clearly, the state would crack under the strain. It would, however, be a field day for warmongers of all stripes and robes to rake in blood money!

The peace track (2nd option) is equally fraught with intractable barricades. For the LTTE, the loss of Thoppigala represents a strategic setback, and not merely a tactical retreat. Therefore, the LTTE would insist on establishing strategic parity as a basis to resume negotiations. The consequence of attempting to ‘up the ante’ and establish strategic superiority is what the other side would insist on establishing strategic parity, as a basis to seek a final political solution.

It would seem that by taking Thoppigala, the Mahinda Rajapakse regime has entered into a strategic quagmire. Either it must seek to optimise on its strategic advantage by seeking further military victories, or it must relinquish what it has gained on the ground in order to persuade the other side to negotiate.

For the LTTE, establishing strategic parity would require that the military gains won by the state be relinquished. The LTTE would insist that resuming talks would have to be on the basis of honouring the Cease Fire. This would mean returning to the status quo established by the Cease Fire. Following the peace track would also require that the People’s Alliance government would have to present a unified proposal to the All-Party Representative Council.

This would require that the present SLFP proposals would have to be drastically revised, in order to accommodate the views of other Alliance partners. This itself would be like mixing oil with water. The Tissa Vitharana proposal shows the distance to be bridged. The APRC would then have to work out a consensus and present a unified proposal to the LTTE.

This proposal, if it is to be a basis for serious negotiation, would have to be based on the ‘Oslo Agreement.’ That is, a proposal that would frame a form of sharing power that would address the demand for recognition of the right of internal self-determination of the Tamil nation. These are the intractable barricades to be overcome, and the milestones from which to advance, if there is to be a resumption of talks.

The Mahinda Rajapakse regime would find it impossible to overcome these barricades that it has built for itself, and hope for a resumption of talks. Of course, there will be a show of commitment to a peaceful settlement — the usual act of political juggling. That will be all. Already, President Mahinda Rajapakse has insisted once again that he would not change his stand on a unitary state. Tissa Vitharana, for all his good intentions, will continue to function as the court jester.

One option on the peace track for Mahinda Rajapakse to turn things around and resume talks would be to seek the support of the UNP. This is definitely not going to happen. Ranil Wickremesinghe will not bite the bait, given that he expects the government to fall, and fall into his lap, at any time.

Ranil Wickremesinghe, nor the UNP, is an alternative to rising above the prevailing swamp of deception, terror and murder, since he, and the UNP, are equally responsible for digging this murderous swamp. Nor can Mahinda Rajapakse expect the UNP to bail him out, given his policy of splitting the UNP.

Furthermore, he dare not even think about joining with the UNP, given that the JHU and the JVP will strangle him, with the support of sections of the armed forces and Karuna. So, war-all-out war is what is most likely. A war more horrible and destructive than ever before, with the people still paying the pitiless price.

When we study the two options carefully, however horrible it would certainly be, it seems that the most likely option for the regime and the LTTE would be a decisive war! That is, for the regime, all-out war aimed at a military solution, and, for the LTTE, to establish parity of status strategically and militarily, if not to liberate an independent state of Thamil Eelam.

The JHU and the JVP have their own agendas and strategies they must follow, in order to advance their grab for state power. Through promoting the ‘military solution’ track, the JHU will advance their agenda to establish a hegemonic, theocratic, Sinhala-Buddhist, fundamentalist-fascist state throughout the island. They will steer the Mahinda Rajapakse boat in this direction, as they have already done. The JVP will appear to oppose the Mahinda Rajapakse regime on issues of corruption and waste to keep some semblance of ‘militant socialism’ among its ranks, but support him fully on prosecuting a genocidal war.

Furthermore, the JVP will not go to town on the issue of corruption, nor on the issue of the Mahinda regime entering into a military partnership with the US, or on any other issue, since its top leadership is hopelessly compromised and reigned in by Mahinda Rajapakse by having partaken with equal greed at the feast of corruption.

Besides, their road to power is to peddle the Rajapakse boat until it sinks in its own slime, so they can take the helm and grab absolute state power. The JVP, like the JHU, shares the same ideological vision of a Sinhala-Buddhist hegemonic-chauvinist state under their exclusive capitalist-fascist class dictatorship. For all the conflicts between these various bourgeois-fascist class fractions, they are united in promoting a military solution through an all-out war, while selling out the country to the US and to any other imperialist bidder.

Those who place their hopes on the ‘International Community,’ should be clear about the historical role of this community. This so-called ‘international community’ is nothing but the community of imperialist powers who dominate the world. The common interest of the imperialist powers lies in propping up the tottering world imperialist system, while advancing their own strategic interests in the country and the region, with an eye on securing vital strategic assets such as the harbours of Trincomalee, Colombo and Hambantota, oil fields, air fields and other assets.

Already, the US has entered into the ‘Acquisition and Cross-Serving Agreement’ with the Mahinda Rajapakse regime, which gives it access to all military facilities on land, sea and air to carry out its strategy for undisputed global domination.

So much for the dharma rajya and liberating the motherland! The Lord Buddha would be ashamed of how the dhamma has come to be used by as the cover for reeking corruption, murder and abduction, and for selling out the country. Even Yankee Ranil could not push this neo-colonial agreement through, given the opposition at the time.

India will continue with the strategic partnership with the US, while advancing its hegemonic ambitions in the region. Beyond that, all these powers will continue to train, equip and fund the Sri Lankan state in its ‘war against terrorism.’ The ‘International War Against Terrorism’ is a signboard for carrying out a global counter-revolutionary war against all revolutionary liberation forces in the world. It is a signboard for carrying out a global war of terror against the people of the world aimed at expanding the empires of profit and plunder.

Mahinda Rajapakse regime is caught in a deadly vice. The only way out is to formulate a new political vision which bridges and transcends the two extreme polarised positions of a Sinhala-dominated hegemonic Unitary State and the demand for a separate state of Thamil Eelam.

As a transitional step towards solving the national question, this would require the formulation of a democratic-pluralist constitutional framework that would give expression to the national democratic aspirations of all the nations, nationalities and ethnic communities in the country, including the Sinhala-Buddhist nation, the Tamil nation living predominantly in the north-east, the Hill Country Tamil nationality, the Muslim nationality and the ethnic-religious communities.

The constitutional framework should be integrative such that these nationalities and communities would be equal, integral and indivisible partners of the state. The centre should consist of a bi-cameral legislature with a House of Representatives and a Senate.

The Senate should be representative of all nationalities and communities equally and have a veto power to ensure that the national-democratic rights of all constituencies are protected, without any form of discrimination or subordination.

Finally, powers should be provided to all nationalities and communities to exercise their decision on all matters pertaining to preserving and advancing their distinctive identities and traditions. A democratic centre shared equally by all, as integral partners of the state, and which guarantees the national democratic rights of all nationalities and communities is the only answer to the politics of both exclusive hegemony, and of division and separation. But it is doubtful whether Mahinda Rajapakse and his corrupt coterie would ever scale these heights of visionary statesmanship.

For the people, however, they are losing faith in the rotting feudal-colonial state and political system. Instead of bringing home the infinite possibilities of the 21st century, it has only heaped perpetual poverty, indebtedness, degradation and misery.

This suffering is being inflamed into an explosive consciousness given that they are made to endure all this, while corrupt and arrogant politicians of all stripes and robes spill their blood, and amass fortunes, while selling the country to each and all imperialist bidders. They will find their way of settling accounts and rising beyond the swamp to claim a better world with dignity, solidarity, independence, prosperity and freedom.

by Dr. B. S. Wijeweera

Parliament is not a congress of ambassadors from different and hostile interests; which interests each must maintain, as an agent and advocate, against other agents and advocates. Parliament is a deliberative assembly of one Nation, with one interest, that of the whole; where, not local purposes, not local prejudices ought to guide but the general good, resulting from the general reason of the whole. You choose a Member indeed; but when you have chosen him he is not a Member for Bristol, but he is a Member of Parliament.

(Edmund Burke, “Speech to the Electors of Bristol”, 3 Nov. 1774)

The Parliamentary Select Committee on Electoral Reform put out its interim report the other day at a press briefing. Almost simultaneously several political parties, both of the Opposition and Government, expressed their reservations and inability to go along with some critical recommendations in the report. In the previous Parliament too a similar Select Committee was formed in August 2003, but soon after it finalized its interim report Parliament was dissolved, and hence no action ensued. The present Select Committee took off from there but is stuck in a stalemate. So collectively after four years of deliberation it is back to the drawing-board.

Select Committees on sensitive issues have not found it easy. Today, another Select Committee on improvements to the 17th Amendment has been labouring for well over a year without result; in fact, it has sometimes found it difficult to muster a quorum. Due processes are observed, but when it comes to the crunch the members of these Committees, who are mere delegates of political parties, who are prone to protecting their respective turfs and doing nothing that would damage the party standing both within and without Parliament, find it extremely difficult to reach a consensus that would promote the common weal. The activities of the All Party Representative Conference is another case in point. For the past several months it has been piously promising (as reported in the mass media) the final proposals “within the next two months”, but the APRC is still struggling to deliver.

The point to be realized is that Parliament is a collection of political parties and, as members of political parties, those who serve on Select Committees are averse to finding solutions that would either damage their personal interests or that of their respective political parties.

From Electoral Reform to Parliamentary Reform

The Interim Report serves as a point of departure to reflect on a more fundamental issue, namely, the functions and composition of Parliament. We have been having a Parliament for the last 60 years, but with what result. Of course, it has enacted heaps of legislation, many of which create new bureaucratic structures without any concern for how to meet this additional expenditure. But Parliament has failed to provide redress to two chronic malaises that have been affecting society for a long time. Firstly, it is the economic system which has been characterized by slow and uneven growth, both sectorally and territorially. Now, some may point out that it is not Parliament but Government that should regulate and energize the economy. True, but constitutionally the eventual monetary and fiscal policies and sanctions for expenditure are given legal effect by Parliament. If Parliament is not allowed by the Executive to exercise any initiative, then, one has to probe why this has happened.

The second malaise is that of conflict of ethnic interests, which is as old as the economic problem. In fact, it could be said that they reinforce each other through a process of circular causation, i.e. one pushing the other into deeper and deeper crisis.

In the aftermath of the 1971 Insurgency, when most MPs were in a state of shock, Felix Dias Bandaranaike, as Government spokesman, made a very reflective observation which rings true even today: “the present situation marks, in my view, a total denunciation of the forms and procedures which we have been trying to emulate and ape, borrowed from a foreign culture, totally irrelevant to our present-day thinking and to the present day context” (Hansard, 04 May 1971). Tragically, soon after the Insurgency was brought under control, it was business as usual in Parliament.

To come back to the present a few months back, in a rare display of parliamentary activism, the Committee on Public Enterprises (COPE) put out a scathing indictment on the financial management of government enterprises and reported that a colossal sum of money (around Rs. 150 billion?) has been misappropriated. Parliament stands helpless in the face of Government’s tardiness to pursue this matter. Thus, we have now a pernicious third malaise over which Parliament has little control – massive corruption.

Election a Means to an End

Elections are only a means to selecting “suitable” persons to sit in Parliament. It is only a process leading to what should be a robust, virile and effective Parliament. Thus, the reform exercise should have begun with an empirical inquiry into the nature of Parliament and what sort of persons should be in it. When the role of Parliament and what is expected of it is clear, then, and only then, would an inquiry into the manner of electing persons to it become meaningful. It is sad that Parliament confined the activities of its Select Committee to the elections process.

Constitutional Guidance

In the two previous Constitutions and in the present one the functions of Parliament are clearly stated: to make laws (including amendments to the Constitution), authorize expenditure from the Consolidated Fund, raise revenue by taxes or other means, and maintain a supervision of government financial operations through reports made to it by the Auditor-General. These functions need greater emphasis today.

Logically, People should have the opportunity to elect to Parliament persons possessed of professional competence to discharge the above functions. This is not to say that we should have in Parliament only lawyers, accountants and auditors but that the People should be absolutely free to elect such persons or others of professional standing if they so wish. Rousseau observed sometime back (Social Contract) that the people of England are free only at the time of electing Members of Parliament. Even this freedom is curtailed today because the electoral process is so dominated by political parties that People have only a limited choice of voting for persons pre-selected for them by the bosses of political parties. Thus, we end up with representatives of political parties, not of the People. This subtle difference, in turn, inhibits the behavior of elected Members who owe a greater obligation to the promotion of party interests rather than that of the People in whose name they seek election.

The situation in Sri Lanka today is that the party hierarchy is all powerful. In the screening process for party nominations loyalty to the leader ranks very high. Previous contributions to promoting the interests of the party at elections count more than the good of the public in whose name election is sought. Certainly, “gentlemanly politics” ranks very low in the evaluation; “hook or by crook” is the preferred norm.

Some Guidance from the Past

Thucydides has left a useful contemporaneous account of how mid fifth century B.C. Athenian society functioned, giving both the good and bad features (The Peloponnesian War, Rex Warner translation). Equality before the law, obedience to those placed in authority, a lively interest of citizens in affairs of the state, proper discussion before important policy decisions, death penalty for embezzlement of public funds, stripping of office or exile upon failure to perform ones duty (Thucydides himself was sent into exile), were some of the positive features of that society.

The most pertinent feature for our discussion is the comment: “When it is a question of putting one person before another in positions of responsibility, what counts in not membership of a particular class, but the actual ability which the man possesses”. The class referred to here is not in the economic sense, but very probably the factions into which that society was divided. This principle of merit is violated in our society, when a political party (which is a class of persons by association) is given the indirect power to nominate persons to that assembly which makes laws and decisions that are binding on us all. We have to go back to basics and insist on merit not as determined by political parties, but by the voters themselves.

The recent spate of crossovers in Parliament brings in another empirical dimension. Earlier it was pointed out that MPs are not representatives of the People but of political parties that nominate them. When crossovers take place in defiance of party wishes even this representation is thrown into confusion. They then represent only themselves. The positive side of this development is that, may be, they are asserting the right to free themselves from the shackles of party domination, a point of view supported in this essay.

The other inspiration that has been chosen in support of this essay is the victory speech made by English legislator-cum-statesman, Edmund Burke, soon after he was declared duly elected at the conclusion of an election petition hearing. He makes an impassioned plea for freedom of conscience, especially against the practice of “Instructions” that prevailed then by which the electors could dictate to an MP how he should vote or behave on an issue before Parliament. He distinguishes between the parochial interest and the national interest and places the MP’s responsibility squarely on the side of the latter in the event of a conflict. His reference to hostile interests are pertinent today to the interests of political parties, whose “agents and advocates” MPs have become. Of course, it has to be admitted that Burke failed in his mission and later had to seek a safer constituency in order to retain his seat in Parliament. More importantly, he left behind for posterity a role for the MP as a pursuer of the national interest, referred to as the “trustee” model.

We should desist from the conclusion that this may lead to MPs becoming a law unto themselves, and end up by representing nobody but themselves. This does not necessarily follow. Anyone seeking re-election will have the good sense to keep in touch with voters, feel their pulse on important issues. Having done this he should be free to act in, what he perceives to be, the national interest.

The Political Party in Political Theory

It is often explained that a political party performs an aggregative function in society, i. e. to put together diverse opinions and expectations of various groups into a coherent form and when in power to translate them into executive and legislative action. Without such an institution, it is argued, if would not be possible to formulate a programme of measures, nor have the necessary support in the legislature, for implementation. This argument is more valid in a parliamentary executive type of government.

What is the empirical reality in Sri Lanka? Except for a few rare occasions when public opinion moulded public policy, most of the time political parties aggregate popular bases not public opinion. The most loyal supporters are those who seek personal favours and benefits in return, not the implementation of agreed programmes. Notoriously, the corporate business sector hedges its bets at election time and also spends lavishly on the party that it feels will carry the majority vote. Attachment to individuals, families and kinship relationships count more than policies. The negative vote of protest against the incumbent Government can swing the result more than the relative merits of the programmes on offer. Finally, the resort to thuggery, intimidation and election malpractice robs the political party of any claim to performing an educative and positive role in society. In fact, it has introduced a further fragmentation of society.

The Need for a Stable Government

The root of the problem is our attachment to the parliamentary executive system. Even with the introduction of the Executive Presidency and a formal statement of the separation of powers in the Constitution, the attachment to a parliamentary cabinet (including the PM) continued. This nexus has created immense problems

Firstly, in order to govern a person has not only to win the presidential election but also has to ensure for his party a parliamentary majority. When this fails a stalemate ensues in which neither institution can function effectively. Secondly, when the Executive presidency was first mooted in the then National State Assembly by J. R. Jayewardene, the stated justification was a stable Executive with a fixed term of office “not dependent on the whims and fancies of the House”. Experience has shown that this is not necessarily correct. Parliament can still manipulate things, using the arithmetic of party seats, to frustrate the Executive. Conversely, the wheel can turn a full circle with Parliament at the mercy of the whims and fancies of the President through the operation of the power to dissolve Parliament.

The Interim Report’s answer to this dilemma is to recommend a “hybrid” of FPP and PR voting systems to ensure a stable government: 140 seats for the winners of single member constituencies; and 70 seats for the losers of these constituencies to be distributed on a district PR basis. Additionally, 15 seats are to be allocated from “national lists” based on the proportion of votes polled by each party nationally, subject to five of them going to the party that polls the most number of votes. An obnoxious feature of the “national list” allocation is that a candidate with little support in a constituency (a reject) can theoretically find his way into Parliament through the “national list”, thus, making it very obvious that he is a party representative in Parliament.

A Parliament Without Political Parties

The issue of a stable Executive can be easily resolved by cutting the nexus between Parliament and the Executive without having to gerrymander the results of parliamentary elections. In a judicial interpretation given recently by a seven member Special Bench of the Supreme Court it is the “executive power of the People” that is exercised by the President. If so there is no need to compel the President to select the Cabinet from Parliament, because the Executive President derives his power directly from the People. Moreover, there need not be a PM in Parliament, because the President is the Head of the Cabinet. These contradictions have crept into the present Constitution because in 1978 we had the hang-over of a Parliamentary Executive operating in this county for thirty years. It is now time to decide between a pure parliamentary Executive or a pure Presidential Executive.

If the option is for the former then we run the risk of a powerful parliamentary Executive acting in a dictatorial manner as happened in the administrations of 1970-77 and 1977-89. Also, the political party system will have to stay with all its attendant evils. If it is the latter then it would be possible to keep in check the dictatorial tendencies of an Executive President by having a Parliament without political parties.

Notionally, an independent Parliament without political parties is nothing new. We have got used to an independent Judiciary, an independent PSC, an independent Police Commission and an independent Auditor-General all in the name of Rule of Law and good governance. An independent Parliament will be just another institution that will buttress the same objective.

Effective Checks on an Executive President

In a Parliament elected on a non-political party basis and in their individual capacities (actually membership of a political party would be made a disqualification) there are several checks available to control the Executive. Firstly, there would be the Impeachment of the President and he will not have his party men in Parliament to abort it. Additionally, by doing away with the constitutional Article on immunity, the President will be treated as an equal before the law and made legally answerable for his actions. Secondly, a simple No Confidence Motion will keep in check all members of the Cabinet. The President will be free to choose his cabinet members from whatever source he can rely on paying heed to ethnic representation, except of course Members of Parliament. However, he will not be able to protect them in Parliament using party muscle. If the No Confidence Motion is carried the Cabinet member resigns and someone else will have to be appointed. The President will be free to appoint officials such as Secretaries of Ministries and members of statutory bodies such as corporations, but all of them will be screened prior to appointment, for integrity and competence, by the Committee on High Posts. That special institution called the Constitutional Council, envisaged in the 17th Amendment, can be made operative as another Committee of Parliament, because there will be no Prime Minister, Leader of the Opposition and other party groups to assemble it. It will be necessary to make it mandatory for the President to abide by the decisions of the Constitutional Council. Finally, Parliament will have a completely free atmosphere in which to examine the reports of the Auditor-General. Collectively, all these measures will contribute to good governance on the part of the Executive. Of course, the first requirement would be that the power of dissolution of Parliament would have to be withdrawn. Parliament, like the President, will serve for a fixed term.

Three Special Problems

In a system in which an Executive President and an independent Parliament operate, three special problems have to be addressed. Firstly, how will the Executive get its legislation passed. The usual procedure will be followed. The Bill will be sent to be placed on the Order Paper. On the appointed day the relevant Minister together with other officials will appear in Parliament and explain the provisions of the Bill and the reasons for proposing it. After a discussion and exchange of views on both sides the Bill will be passed, rejected or passed with suitable amendments, just as it happens now. Certainly, there will be less acrimony because those in Parliament will be more objective and reasonable than those in an Opposition whose primary objective is to oppose and embarrass the Government.

The other problematic issue is how does the Executive secure the authority for expenditure and raising revenue. Whether it is the annual budget or a supplementary estimate its smooth passage through Parliament is essential to the maintenance of public services. Today, the annual budget is an assemblage of “shopping lists” put forward by different Ministers, who put forward projects to make a name for themselves. Some compromise is reached in the Treasury, but the outcome is bloated expenditure for which finance has to be found somehow. Even with high expenditure, basic needs such as medical services and education are inadequately financed. When the number of Ministers is large there is very little control that even the Treasury can maintain on expenditure.

In a Parliament without political parties and Ministers, prior discussion with the different Consultative Committees of Parliament will precede the formulation of the annual budget. The Ministers will be supplicants for funds. Even their very existence will be questioned. Superflous departments (of which there are large number) will be axed and their functions re-assigned to others, thus, cutting down overheads expenditure. This will surely lead to a curtailment of burgeoning recurrent expenditure and a leaner but financially viable annual budget.

The Fiscal Management (Responsibility) Act gives some guidelines on prudent financial management: budget deficit less than 5% of GDP, reduction of public debt, and reducing total government liabilities progressively to 60% of GDP by the year 2013. This is now law, and Parliament can insist on its observance before approval of the annual budget. Furthermore, printing of money would require approval of Parliament.

It is not fair to assume that the new type of MP will become obstructionist by habit. If public services are stalled because of a deadlock, then, not only the Executive but also Parliament will come in for blame. Thus, it is not unrealistic to assume that both parties will work together (especially because they are not in political competition) in the public interest.

The third special problem relates to minority representation in Parliament. The Interim Report has opted for a member each from 140 single-member constituencies, 70 on district PR from the losers and 15 from the National Lists. The Delimitation Commission is assigned the responsibility of providing for minority representation. Perhaps, it has assumed that since many political parties are based on pure ethnic lines that this fact will look after representation of minorities. In the envisaged independent Parliament there will no PR seats nor National List seats, both of which are off-shoots of the party system. Hence, there may be a necessity to have multi-member constituencies, as in the past, in order to provide for adequate representation of minorities.

Two Relevant Objections

It may be asked whether the people themselves will prefer to have an MP who will not have any Government clout to fix jobs for their children, to get for them other favours and benefits. The simple answer is that they will have to decide this at the Referendum, if at all one materializes. As it is, it would be difficult to find MPs or political parties that would want to sponsor a proposal that would undermine their own positions. However, an idea does not lose value simply because there are no takers; experience has shown that it has to wait for its time.

The second objection is that whether this would benefit those with money to spend on elections. We cannot eliminate the advantages that money can confer on individuals. Even today, the nomination by a well-funded political party confers a definite advantage to that candidate, but we do not complain of undue advantage here because the political party has become an article of faith. If someone wants to spend his money to gain a little prestige or honour in becoming an MP, it does no harm to society. Fortunately, the corporate sector of big business, the most corrupting financial influence in electoral politics, will not back an ordinary MP who will have no executive power. They will reserve their funds for the presidential election, which will be run on political party lines.

Conclusion

This is but a very sketchy formulation inspired by what has been proposed in the Interim Report on Electoral Reform. The Select Committee could not exceed its mandate, but no such inhibition restricts the writer. In this sense, it is not a critique but a separate conceptualisation that reaches out way beyond the Select Committee mandate. The inspiration is also very genuine and well intentioned – to urge a reform of Parliament. Parliament will be better served if the deadweight of the parliamentary Executive is taken off its shoulders.

By Kishali Pinto Jayawardena

The prevailing situation of conflict in the country with its heightened emphasis on enforced disappearances and extra judicial executions has, in a sense, pushed the deceptively termed ‘ordinary’ practices of torture by custodial officers to the background. This should not however, be the case; rather, there should be a collective focus on these issues as the same culture of impunity permits these kinds of violations. Ergo, the focus should consistently remain on the legal and extralegal factors that allow or even actively encourage these abuses rather than per se, solely on the conflict.

A persistent feature of the immediate years post the 2002 ceasefire agreement was that even despite the absence of war, practices of torture continued unabated. This shows the extent to which resort to abuse of power has become imbedded in our custodial system and further, corrupted other professionals who are supposed to impose safeguards against such abuses, including medical professionals and judicial officers.

The collusion of medical officers in the infliction of torture by police officers was reflected upon in last week’s column. Those implicated range from senior medical officers to the junior level; this is a fact that disgraces the medical profession and should be examined by its professional body in a far more rigorous manner than only rapping an errant medical professional over his/her knuckles once in a while.

What is important to note is that the police are not the only blameworthy individuals in this scenario. Apart from medical professionals, judicial officers have themselves not been blameless. In the Thilakarathna Jayalath case which was the first conviction under the Anti-Torture Act, (HC 9775/99, order of High Court Judge S. Sriskandarajah as he then was), the High Court observed the paucity of magisterial supervision of the victim of torture when he had been produced before the judicial officer. The failure to question the suspect as to whether he had been tortured was of specific concern.

Then again, the absence of magisterial supervision in the detention process was well brought out in Weerawansa v Attorney General, 2000) 1 SLR 387, where remand orders by the Magistrate, Harbour Court made under the ordinary law were held to be in violation of the arrestee’s rights. Several such orders of remand had been made even though the Magistrate or the acting Magistrate did not visit or communicate with the arrestee. This was ruled by the Supreme Court (per judgment of MDH Fernando J) to offend a basic constitutional safeguard in Article 13(2), that judge and suspect must be brought face to face before liberty is curtailed, which safeguard was not an obligation that could be circumvented by producing reports from the police. An earlier view (Farook v Raymond (1996) 1SLR, 217) that remand orders, where they concern a patent want of jurisdiction, cannot be safeguarded under the cover of being ‘judicial acts’ with consequent immunity from fundamental rights challenge, was agreed with.

It must be stressed that even at a point when fundamental rights litigation was at its zenith, (which is not evidenced now, except in a few high profile ‘political’ cases) the gap between judgments and their implementation was immense. Judgment upon judgment was delivered by the Supreme Court finding torture to have been committed by officers in custodial authority but none were implemented in order that these officers would be disciplined or prosecuted.

At the least, these officers were not even removed from their positions or interdicted. The consequences were catastrophic as seen when Gerald Perera, a law abiding employee of the Ceylon dockyard was arrested by the police who had mistakenly thought him to be a known criminal by the name of ‘Gerald” and tortured so severely that he suffered renal failure.

This rights petition that he filed was upheld by Court. However, no disciplinary action was taken as recommended against the responsible police officers who continued serving in their posts. A year later, as he was due to testify in the case instituted in the High Court in terms of the Torture Act against the police officers who had tortured him, he was shot and killed at point blank range by some of those very same police officers. The murder trial is ongoing.

A specific feature of the culture of impunity is the blatant disregard with which implicated police officers falsify official documents, including the Information Book. In one case where the court found that Grave Crimes Information Book and the Register/ Investigation Book had been altered with impunity and utter disregard for the law, the view was taken that it was unsafe for a Court to accept a certified copy of any statement or notes recorded by the police without comparing it with the original.

It was pointed out thus; “It is a lamentable fact that the police who are supposed to protect the ordinary citizens of this country have become violators of the law. We may ask with Juvenal, ‘quis custodiet ipsos custodies?’ Who is to guard the guards themselves? (Kemasiri Kumara Caldera ’s case, S.C. (F.R.) 343/99, SCM 6/11/2001).

Even where police officers (junior as well as senior) have been identified as personally responsible for acts of torture in courts of law, no internal departmental action has been taken against them. Directions of the Supreme Court to the police hierarchy to initiate disciplinary action against erring police officers are blatantly ignored. Dayaratne’s Case, (SC (FR) 337/2003 SCM 17.5.2004) where a senior attorney was severely assaulted for attempting to remonstrate with the police over the arrest of a neighbour’s son is one recent example. Here again, the Court, in the judgment of Wigneswaran J, severely censured the police for acting in such a callous manner.

However official resistance to these pronouncements by the Court has always been high; from some time back, the police department had, in fact, set up funds to provide for lawyers to appear for the accused police officers as well as to pay the sums of compensation due personally from the implicated officers. The first legislative attempt to remedy this situation, namely the National Police Commission (NPC) has now proved to be illusionary, almost wholly due to its current lack of legitimacy after the unconstitutional appointment of its members by the President.

The fundamental crisis in Sri Lanka remains the non-implementation of the rule of law, whether this concerns the apolitical working of the judiciary, the non-implementation of the 17th Amendment to the Constitution or abuses committed by police officers. Whether the conflict itself continues or ceases in fact, has now made little difference to this pressing question. It is towards redressing this rule of law crisis that all our efforts should be directed.

By Kumar David

When the Burmese junta tells the rest of the world not to interfere in its internal affairs what it means is that it wants to disperse with impunity a democratically elected government which won over 80% of parliamentary seats, locked up Aung San Su Kyi and run the economy to the ground.

When the government in Khartoum tells the rest of the world to get its fingers out of Sudan’s internal affairs it means that it is none of anybody else’s business if untold misery and death are inflicted on the blacks in Darfur in a process of ethnic cleansing.

There is little that the rest of the world can do, collectively, in the former case, though individual countries have imposed sanctions. In the latter case, global bodies such as the UN can intervene, after due consideration, even if Khartoum howls till blue in the face.

The difference is that Darfur is the site of large scale human rights violations and mass atrocities; in Rangoon they crush your democratic rights and freedoms.

If you went to university in the radical sixties and ended up a bit of a lefty you probably recall what you thought of the state; in the final analysis it is just a body of armed men for keeping the subaltern classes in order. In modern times those needing subjugation include recalcitrant religious and ethnic minorities.

National sovereignty, in this reading, is all about one government telling another: “Don’t interfere when we beat up our workers and screw our national minorities, and we promise to look away when you do likewise.” This is all very simplified, but the core argument conveys how much the radical left despised the state; how much internationalists eschew the nationalist figment.

There is another reading to national sovereignty that you will find in the dictionary of populists but is absent from the lexicon of globalising third world governments.

This is about protecting natural resources from exploitation by international corporations and resisting labour law reforms that disadvantage workers. It is about the need for caution when the IMF and Washington preach the glories of the market economy for the benefit of international investors; let the devil take those living on less than one dollar a day.

A third reading of national sovereignty is when the state and say one ethnic community collude against another section of society and the latter attempts to lean on foreign countries or international bodies for succour. There is then tension between international intervention and sovereignty. This is the Sri Lanka case; if the cap fits let’s put it on.

Gareth Evans, a former foreign minister of Australia and now president and chief executive of International Crisis Group dealt with “The Limits of State Sovereignty” in the Neelan Thiruchelvam Memorial Lecture at the BMICH on 29th July.

His was a refined presentation that eschewed the ideological elements of the debate on the character of the nation state (pity the man is not a Marxist) and nuanced around the tension between national sovereignty and international responsibility and intervention.

As expected of a man of much experience (he helped develop the UN peace plan for Cambodia) he knew his practical onions well and dealt with sensitivity on how to sort out conflicts in the real world of national, partisan or parochial self-interest verses the obligations of international actors.

The message was clear; if governments get too far out of line, that is to say when large scale killing, ethnic cleansing, mass atrocities and war crimes occur, the rest of the world will intervene. That’s the riot act, however politely couched, and sovereign governments had better understand that there is no such thing as untrammelled national sovereignty anymore. This is not news.

The free flow of information, the emergence of what we can call global public opinion and global economic and environmental interdependence is a familiar backdrop. Being foreign, sensitive to the nationalist bombast that will surely follow his lecture, and a suave diplomat, Gareth Evans didn’t put it quite so bluntly; we have to forgive him for, in the mould of Mark Anthony, “being meek and gentle with these butchers.” Nevertheless, the message was stark and unequivocal.

More novel, however, were two other concepts he adumbrated; preventive as opposed to merely reactive intervention, and secondly, graduated responses to the spectrum of different types of cases that occur.

Preventive response makes sense; if one is pretty damn sure that something horrendous is developing, international actors have a responsibility to nip it in the bud. The example he used was provocative. If the current second phase of the military offensive in Sri Lanka, extending into the north, is going to exacerbate and extend conflict and multiply civilian suffering, more strenuous international exertions are justified right now.

Thus we have the concept of preventive restraints on state sovereignty even before the state gets into the act.
And secondly, intervention must not be thought of only as military intervention; on the contrary that is only a matter of last resort after exhausting every other option.

The international community has a wide variety of sticks and carrots at its disposal, diplomatic, political and of course economic. Covert influences were not mentioned, but facilitating changes of government are never far from the minds of strategic planners.

I do not know to what extent Evans is an unannounced emissary of the Co-Chairs or heralds their thinking, but my guess is that the timing of his visit is not an accident.

That’s OK by me, but then you’ve probably already guessed that I think Samuel Johnson’s quip about patriots and scoundrels is truer today than ever before.