22 October, 2017

Good Governance – In Crisis

By Lal Wijenayake

Lal Wijenayake

Lal Wijenayake

‘Good Governance’ is respect and adherence to the basic law of the country, the constitution of the country. Our constitution envisages a democratic form of government and the basic structure of our constitution is governance based on democratic values.

Democracy entails:

(1)           The right to elect your rulers at free and fair election held from time to time.

(2)           Rule of Law.

(3)           Independence of the Judiciary.

(4)           Respect for human rights.

(5)           Separation of powers with checks and balances.

Sri Lanka has a long history of democratic governance though there has been incidents which are deviations from the norm.

But what is witnessed during the last decade is a sustained effort to challenge the basic principles of democratic rule.

The introduction of the Executive Presidential system in 1977 has shifted the center of power from Parliament to an Executive President, with no significant checks on the exercise of the enormous powers vested on the President.

The elimination of the traditional left from Parliament at the Parliamentary elections in 1977 had a significant impact on respect for democratic values and good governance.

From the 1930’s the traditional left, was in the forefront of the struggle to protect and advance liberal values with the backing the left had from local political organizations at village level and the powerful trade union movement that emerged during that period.

This led to the acceptance of ‘democracy’ and the ‘welfare state’ based on social justice as the basic norm in governance.  Any deviation was challenged in the legislature as well as outside on the streets with the trade union movement playing a major role.  This was the barrier that protected and fostered democratic rule and social justice from attacks on the system.

The elimination of the left from the legislature and the breakdown of the powerful trade union movement (as seen from the failure of the general strike of 1980, which turned out to be the turning point in the disintegration of the trade union movement) removed the barrier that defended democracy, liberal values and social justice.  Since then no movement of any significance has emerged to fill this space.

In fact, what we have seen during the last decade, is the use by governments the support of the traditional left (which has ceased to be powerful) and the trade union movement in the attack on democracy, liberal values and social justice.

The depths to which the traditional left and the movements that stood for democracy, liberal values and social justice has sunk, was seen from the support that was extended to enact the 18th amendment to the constitution and the impeachment of the Chief Justice.

The political movements and/ or civil society movements of any significance and the lack of political activism among the masses against the erosion of democratic values and social justice has brought about the present challenge to good governance.  It has reached a stage where we are heading towards authoritarian rule.  The 2/3rd majority that the government claims to enjoy in Parliament has gone a long way to justify the authoritarian rule.  The 2/3rd majority is made up of a large number of members of Parliament from other parties, specially the UNP, who has crossed over to accept Ministries or Deputy Ministries.

In the Parliamentary election of 2004, the UPFA won only 105 seats as against the UNP 82, ITAK 22, JHU 9, SLMC 5, EPDP 1 and UCPF 1.  In the Parliamentary election of 2010, UPFA won 144 seats against the UNP 60, TNA 14, DNA 7.  Therefore it is seen that the people has not given a 2/3rd s majority to the UPFA governments at these two elections.

Article 99 of the constitution has introduced a system of proportional representation in Parliament where the number of members elected from each political party has to be in proportion to the voters polled by the party.

Under Article 99(13) (a) of the constitution a member who ceases to be a member of the party from which he was elected ceases to be a member of Parliament and his seat falls vacant. The seat has to be filled by a member of the party from which he was elected.  The proviso to the Article has vested the Supreme Court with the jurisdiction, in the case of the expulsion of a sitting member from the party to which the member belonged, to determine whether the expulsion was valid.

The decision of the Supreme Court in interpreting the scope of this jurisdiction in the leading case of Gamini Dissanayake Vs. Kaleel reported in (1993) 2 Sri Lanka law reports, page 135, clearly laid down the limits of its jurisdiction and held that “Our constitution confers primacy to the political party as against the individual M.P.  The party carries the mandate of the electors and in turn gives a mandate to the MP.  The exercise of the rights of the petitioners qua MP’s is subordinate to the requirements of party discipline and their freedom to agitate matters in public is constrained by reason of their obligations to the party which they have freely undertaken to honor.” and further it held that “the rules of the Political Party are not a mere matter of contract but the basis of the exercise of the freedom of association recognized by Article 14(1) of the constitution.”  Supreme Court was rather reluctant to go into the merits of the expulsion, which is a political decision, and will only inquire into whether rules of natural justice and the procedure for disciplinary action laid down in the party constitution was followed.  But, cases decided after 1994, has moved away from the principles laid down in the early cases and has created a situation where the Court has gone deep into the merits of the decision taken by the party.

In the process many expelled MPs who crossed over to the government group continued to be in the government group without losing their seat as it should have been.  This went against the principle of proportional representation.

Therefore, the 2/3rd majority in Parliament for the UPFA governments  was obtained unconstitutionally and the 2/3rd majority is being used to undermine the basic values protected by the constitution, as seen in the case of the enactment of the 18th amendment and the repeal of the 17th amendment.

Control of Parliament over Public Finance as set out in Article 148 of the constitution was the only check of any substance that Parliament was vested with on the Executive President.  This had being made ineffective in practice by the President keeping for himself the subject of Finance and functioning as the Minister of Finance in violation of the spirit of the constitution.

The office of the Attorney General has been politicized by bringing the Attorney General’s Department under the Defense Ministry instead of the Ministry of Justice as it has been in the past.

By the repeal of the 17th amendment and the enactment of the 18th amendment, the President has politicized all the institutions of Government by arrogating to himself the power to appoint the Election Commission, Public Service Commission, National Police Commission, Human Rights Commission of Sri Lanka, Commission to Investigate Allegations of Bribery or Corruption and the Finance Commission and all appointments to top posts such as the Chief Justice and the Judges of the Supreme Court, President and Judges of the Court of Appeal, members of the Judicial Service Commission, the Attorney General, Auditor General, and the Parliamentary Commissioner for Administration (Ombudsman).  The provision that the President shall seek the observations of the Parliamentary Council is a mere Sham.

The impeachment of the Chief Justice and the procedure followed in doing so is in complete violation of the provisions of the constitution and in breach of all international conventions and principles laid down such as the Latimer House Principles.

We have seen in recent times the complete breakdown of the rule of law.  Rape cases, misappropriation cases, murder cases pending in Courts against members of Parliament who has crossed over to support the government were withdrawn.  Open attacks on individuals, churches, mosques, kovils and business establishments belonging to ethnic and religious minorities in the presence of law enforcement authorities and in full view of video cameras has gone unchecked.  The impunity with which these criminal acts are committed should shock the conscience of all citizens.

The political patronage that is exercised even at grass root level by politicians such as Pradeshiya Sabha members who indulge in serious crimes, is to say the least shocking.

Disappearances, abductions, extra judicial killings of persons in custody, attacks on journalists, media organizations, political opponents goes unchecked and is accepted as the norm.

We do not see any tangible intervention by either the political parties and/or civil society organizations against these developments.

In the circumstances the last resort left to a citizen to seek relief in the face of this onslaught on democracy, rule of law and human rights is the recourse to the judiciary.  Resort to the Supreme Court under Article 126 of the constitution for violation of fundamental rights is the only remedy left to a victim of administrative or executive action.  But in the face of the conduct of the legislature and the President in respect of the judgments of the Court of Appeal and the Supreme Court in the cases that came up challenging the impeachment process, creates serious doubts as to the subjection of the legislature and the executive to the decisions of Superior Courts.

In terms of Article 125 of the Constitution the Supreme Court is vested with the exclusive jurisdiction to hear and determine any question relating to the interpretation of the constitution.  During the impeachment proceedings against the Chief Justice the Legislature and the President acted disregarding the interpretation given by the Supreme Court regarding Article 107 of the Constitution in Jayaratne Vs. Anura Priyadarshana Yapa and Others’ case.

Similarly the Legislature and the President in impeaching and removing the Chief Justice acted against the Judgment of the Court of Appeal regarding the validity of the proceedings before the select committee of Parliament.  Even the polite request made by the Supreme Court to stall the proceedings before the Parliament Select Committee till the Supreme Court considered the application made by Rev. Maduluwawe Sobhitha Thero was cynically rejected by the Parliamentary Select Committee.

The manner in which the Legislature and the President has refused to comply with the judgments of the Court of Appeal and the Supreme Court has demonstrated that obedience to law by the legislature and the Executive is selective.  That is, the legislature as well as the executive can as they have done once disregard an order of the Supreme Court in respect of violation of Human Rights or any other order against the wishes of the Executive.  The resulting position is that the Executive is at liberty to decide whether the Executive will abide by a decision of a superior Court.  This is in complete breach of Rule of Law and the Constitution.

These decisions of the Legislature and the President has caused irremediable damage to the authority of our Courts and it is to be seen to what extent it will impact on day today administration of justice in the country, because the true situation that has emerge is that even a decision of a Court is not binding on persons who hold power.

In the light of the behavior of the Legislature and the Executive in the face of orders of Superior Court it is to be seen to what extent determinations made by the Supreme Court in terms of Article 126 regarding violations of fundamental rights will be accepted by the Executive.

Under Article 126 of the constitution, what the Supreme Court is expected to determine is whether a violation of fundamental rights has occurred disregarding whether it is trivial or not and disregarding its consequences on the other organs of State.  The Supreme Court is as subject to the constitution as any other organ of the state and the power that is vested has to be exercised for the purpose for which the power is vested with the trust that is reposed in the Supreme Court.  That is, if it is a violation of fundamental rights it cannot be said to be trivial or that the order will have adverse effects on the other organs of State.

The erosion of Rule of Law and in fact, democracy itself, can only be checked by an enlightened movement of the masses for restoration of Rule of Law.

To pull the country even closer to what it was, requires the:

1. Abolition of the Executive Presidential System and establishing Parliamentary Democracy where Executive Power rest with a Prime Minister and a Cabinet responsible to Parliament.

2. Repeal of the 18th Amendment and the re enactment of the 17th Amendment and thereby depoliticizing the institutions of government.

3. Abolition of the preferential voting system.

4. Enactment of an Act of Parliament giving the people the Right to Information.

It is seen that the establishment of the Executive Presidential System had gone a long way towards the creation of a authoritarian states.

Dr. N. M. Perera in his book ‘Critical Analysis of the Constitution of 1978’ states, “the Presidential system offers unlimited scope for wielding absolute power albeit for a limited period.  But the taste of unlimited power grows with the feeding and the lust cannot be easily satiated.  It is a matter for regret that Sri Lanka that has amassed considerable experience in Parliamentary Government and has successfully overcome the teething troubles of the early period should now be thrown down the slope of constitutional confusion in the end jeopardizing democracy itself”  – (Vide last paragraph but of the preface to the book)

It is seen that the constitution under which we are governed has become ineffective due to the fact that the Executive has rejected the authority of our superior courts and has acted in violation of the Constitution.   Therefore, we have arrived at a stage where the validity of the Constitution is relevant to the extent that the Executive chooses to honour the provision of the Constitution.   This is a complete breakdown of Good Governance.

*Lal Wijenayake (Chariman, Standing Committee on Rule of Law of the BASL) – Presentation made by Lal Wijenayake at the seminar organized by the ‘society for the integration of science and human values’ (SISHV) principles of good governance at the University of Peradeniya on saturday 30th november 2013

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Latest comments

  • 5
    3

    From the British installed democracy we are drifting towards back to monarchy. Sri Lankans are unable to elect proper leaders. They usually elect thugs, rapist, drug dealers, thieves. . So it is better Sri Lankans go back to monarchy until they are matured and grown up to embrace democracy. So it is responsibility of MR & Namal have to fill this gap till sri lankans comes age.

    • 0
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      Excellent article. Please translate into SInhala to educate Sinhalaya Modayas who keep voting for the Jarapakse Military dictatorship!

      On the other hand, Ranil Wickramasinghe the dictator in the UNP because of lack of democracy has deliverered that party, on its death bed, into the hands of Buddhist Monks – and the Karu Sajith duo who are Sinhala Buddhist racists..

      What should also been mentioned here is the rotten and corrupt POLITICAL CULTURE of ALL political parties leadership – particularly the UNP and SLFP…

    • 1
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      Sumith,

      “Sri Lankans are unable to elect proper leaders.”

      We have no leaders left, they were all killed by the LTTE!

      • 0
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        Chola,

        I take it you are referring to the One and Only (PM in Waiting) the Right Honourable Mr.Lakshman Kathirgamar .

      • 0
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        I should have said Late Mr.Lakshman Kathirgamar

    • 0
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      Sumith : If you go back to MONARCHY ( Non Existent ) there will be ANARCHY on an unprecedented scale worse than what we are seeing now.

  • 5
    1

    Lal,
    Thank you for educating us on principle of proportional representation and other matters. Excellent article.

  • 6
    3

    The crisis began from day one of gaining independence and process is continuing worsening every minute. The question is what is to be done to make a turn-around.

  • 8
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    Mr. Wijenayake, Good Governance in Sri Lanka has been in crisis, ever since its Independence. More or less. Corrupt SLFP & UNP are main culprits. However, Rjapassa clan has destroyed Good Governance beyond any recognition. I agree. It is now a whole different ball game. Cheers!

    • 0
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      AFter-the-fact whinning is of little use and little toolate. Where were all our academics, intellects and social scientists when the dynamics was abundantly clear almost 7 to 8 years ago even to casual observers? Why were the academics and political scientists (Dayan and his re-incarnations)not merely staying on the side lines, but even aggressively cheer-leading?

  • 2
    1

    Mohamed, as a first step. Accept our primitive feduo-tribal state and subject our Lordship for a fair assessment in Geneva.

  • 2
    0

    Tell us Mr Wijenayake, which third world country had developped with the type of good governance you are talking about? Did Singapore, Malaysia, Korea, Taiwan etc that has reach high standard of living came up with democratic governance you have mentioned or with semblance of dictatorship. Is Sri Lanka democracy worse now than those countries were in their infancy?

    • 2
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      Excellent reply but you are also one sided, just like Lal Wijenayake. Singapore, korea, Malaysia became powerhouses not because of Democracy. Even countries like England were already developed when representative democracy was introduced. But if you take Japan it had a good democratic system. Some countries fail under dictatorships but some thrive. Just like that some countries thrive under democracy but some fail. We had a good democratic system pre 77 but we were a complete failure economically. But some people don’t understand that. To them democracy with splendid speeches inside the parliament is the holy grail of human development.

      • 1
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        I agree with you that we the people enjoyed far better democratic values prior to 77. That means we had a better childhood in the country then than today. Yes, also we had no open economic policies then. But northern folks still praise MsB ^s principles in terms of agriculture sector helped them then and had the system there on a long run, people could have more improved their livelihoods by giving a greater values to the local products. Until today, they the rulers have not made any amds in terms of the open economic policies introduced by 78 govt. Letting lanken women to work for middle east is a greater failure when looking back. Today the entire society is broken a like a glass.

    • 2
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      Do we have democracy – at all – in sl today ? Ask your grand children please, they could better help you.. as one who is in his early 70ties should have some sorta of vision…. that you dont seem to have..

      Can average citizen in CURRENT DAY LIKE be satisfied with Justice issues ?

      People inclu. that Kumara from Salaka frequently complain on the issues related lack of laws have been in a mess in the country today than any times in the pass… .. no justice at all.

      If you are a PINGONEK whose brains cells have wandered to somewhere else, we can accept what you re bubbling, but almost 95% of the nation are clear, that human rights violations have taken lead in the country with open support of the rulers.

    • 0
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      Banda ……… You have selective memory I appreciate it. ….Almost all countries in South America, Africa, some parts of Europe and Bangladesh and Pakistan have had their dictators. Out of these nations could you count the number of countries that had progress similar to that of Singapore.

      • 0
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        Kallathini vedda, always get it wrong. I have named ‘firm’ democratic countries that were successful and not ‘failed’ military junta. Syrely we are no military junta? We are emulating the ‘firm’ democratic countries like Malaysia. I see that you idiots have trouble differentiating a junta and a ‘firm’ democracy with a semblance of dictatorship.

  • 0
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    I also belive the demise of old left and breake down of powerful trade union movement precipitated this situation to greater extent. MS lal do not describe how it happened. My view on this issue of demise of old left and trade union movement is greatly due to the betrayal of the very ideals for which the old left stood for by the very same left leaders by joining the Govt of MRS B and after joining the left leaders taught how to bring down the trade union movement or their popular weapon the strike. EMEMBER WHAT THE LEFT DID WITH MRS B IN BRINGING THE 1972 CONSTITUTION THEY DESTROYED THE INDEPENDENT PUBLIC SERVICE COMMISSION ANDD DID AWAY WITH THE s 29 THE SAFE GUARD FOR MINORITY OF the society. JR took the baton from MRS B and left leaders and destroyed the remaining balance left after bringing 72 constitution and perfectly dealt with the strike in `980 by closely copying the lessons from his learned friends from the left. remember 72 constitution did away with the judicial review which enjoyed under Solbury constitution. Sir Ivo Jenings must be turning in his grave.

    • 0
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      The demise of the old left by JR and the new left by MR were the best things to happen to this country. There were and always will be clueless about economics and irresponsible about national security.

  • 0
    0

    Ready to be antagonised……Goog governance in the back burner

    Quote: “North PC Minister snubs lion flag

    December 9, 2013

    Northern Provincial Council Minister P. Ingaranesan has decided to snub the National flag saying it does not represent the Tamil people in Sri Lanka.

    At a function held over the weekend the Provincial Minister of Agriculture, Livestock and Water Supply, who was the chief guest, refused to raise the National flag.

    Ingaranesan was invited by the organisers of the event at a school in Mannar to raise the lion flag before the rest of the events continued.

    However, according to the Jaffna media, the Provincial Minister refused to do so and also objected to the failure by the organisers to have the Provincial flag.

    Speaking at the event later Ingaranesan said that there must be a separate post for the Provincial flag at all events.

    He also said that as long as the lion with a sword in its hand remains on the National flag it will not be accepted by the – Colombo gazette”

  • 2
    0

    All this makes it patently clear that MR has no love for his country. His is a consuming greed for power for himself and his family.

    • 0
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      This is what any sane person would feel today.
      Unfortunately, so long the majority would stay gawky, credulous, nothing like towards good can be changed. What matters in a country is the majoratarian views – We can criticise them as much as we could, but all that will not help. The day, that those village buruwas (stupid folks) will start to realize the depth of destruction the Rajapakshe cronies have made to us sofar, it will be the day of start for the progress. That is the worst side of any so called democracies like ours.
      I truly believe, no democratic system similar to EU or other countries can be applied with folks such as ours. They are though proved to be the highest literate folk in south asian region, there seem to be no difference with then when they use their universal franchise. Even after doing so,those majority villagers stay stubborn, as no opposition can help with facts and figure.

      The attitudinal changes (hardworking charactor, respecting lawful manner of the life) in each of us will help improving a nation, nothing else.

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