27 November, 2020

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Modus Operandi For Good Governance: Can We Miss The Woods For The Trees?

By Elmore Perera

Elmore Perera

Elmore Perera

Whilst endorsing the suggestions made by my friend Leo Fernando in his articles published in the Island of 9th March 2015 and 14th March 2015, I venture to suggest that, notwithstanding its vociferous claims to Good Governance, the present Government seems to be missing the woods for the trees.

From 1978 to 1983 in SLIDA Leo and I struggled to impress on public servants the importance of identifying the Critical Path in analysing any Network of activities. Seldom, if ever, did politicians bother about such concepts. Self-interest seemed to be their main, if not sole, consideration.

The 180 – day programme conceptualised by the National Movement for Social Justice included a Referendum, and was based on a Critical Path which did not exceed 180 days. The telescoping of all these, and several other desirable activities, into a 100-day programme was apparently misconceived, if not entirely mischievous.

There can be no dispute that three critical activities were envisaged viz.

  1. Abolishing of the Executive Presidency, and replacing it with a Parliamentary System.
  2. Replacing the 18th Amendment and reinstating the 17th Amendment, duly strengthened, and
  3. Reforming the Electoral System.

All these three activities could, and verily should, have commenced on day 2 after the Prime Minister and Cabinet were appointed, and proceeded with, in parallel. The 1st two activities could, if necessary, have been carried out in series, in parallel with activity 3 (Reform of the Electoral System) which necessarily had to proceed in parallel, from day 2 itself.

Certain events that constitute activity 3 have been assigned dates in the 100-day calendar without any logical rationale. The explanations tendered in the electronic media to justify the failure to observe such deadlines, are far from convincing.

It was reported that, prior to leaving for the UK, the President was assured by inter alia, the Attorney General, the Polls Chief and the Surveyor General, that a delimitation of the electorates could be conveniently completed within 4 weeks. The Polls Chief has reportedly told the President that relatively short notice would be sufficient to conduct the next election, on that basis. The Opposition is clearly willing to give the government as long as it may take, to do so. The bane of preferential voting and crossing-over with impunity must no longer be inflicted on the people.

The current proposal is to have 134 MPs elected on a first past the post basis to represent 134 electorates, with the balance 91 seats allocated to the contesting parties and Independent Groups. 25 MPs will be appointed from the National Lists of each party/group and 66 MPs from the losing candidates on the basis of the percentage votes obtained in their electorates.

This will ensure that the total representation of each party/group in Parliament will be in proportion to the total votes obtained by such parties/independent groups, country wide. This proposal seems to be acceptable to 70 to 80% of MPs and could be pursued

Of equal, if not greater, importance is whether or not the 19th Amendment will unequivocally provide for appointment of Ministry Secretaries and Heads of Department to be made, not by politicians but by a truly independent Constitutional Council (CC) and /or the Public Service Commission (PSC).

As stated by Leo, I was summarily dismissed from SLIDA in 1983 and from the Public Service in 1984, by the Minister of Public Administration, by abusing his powers through the agency of his Secretary (a Senior Mandarin) for the sole reason that the Minister was denied preferential treatment in the Tennis Association. The Supreme Court made no strictures regarding the conduct of this politician but severely reprimanded two Secretaries and a Head of Department who were all appointed by politicians.

Leo’s understanding that the proposal to bring appointments of Ministry Secretaries and Heads of Departments, (the highest ranking officers in the Public Service, many of whom are professionals) within the scope of the PSC had been included in the Draft 17th Amendment submitted by the OPA (to President Chandrika Kumaranatunga through the good offices of the JVP) is substantially correct. Article 54(17) in the OPA proposals, provided that “the powers of appointment, transfer, dismissal and disciplinary control of Secretaries to Ministries and Heads of Departments vested in the PSC, may not be delegated even to a sub-committee of the PSC”.

However, Article 52(1) of the 17th Amendment that was finally approved by Parliament in September 2001 provided that “There shall be for each Ministry a Secretary who shall be appointed by the President”, and Article 55(3) provided that “notwithstanding the provision in Article 55(1) that the appointment, promotion, transfer, disciplinary control and dismissal of public officers shall be vested in the PSC, the appointment, promotion, transfer, disciplinary control and dismissal of all Heads of Departments, shall vest in the Cabinet of Ministers”.

This pernicious practice has apparently not been addressed in the draft 19th Amendment. As opined by Leo “if the appointment of Secretaries and Heads of Departments continues in the manner as set out in the Constitution, there will be no end to political interference, abuse of power by Ministers and a plethora of uneconomic capital projects”.

The single most important plank on which President Sirisena was elected in preference to incumbent President Rajapaksa was the corruption resulting from abuse of power by the President and his Ministers. It is evident that the alleged corruption resulting from abuse of power by the present regime is taking the limelight away from the alleged corruption of the previous regime.

The time table for the abolition of the Executive Precedency must be set out in full, before dissolution of Parliament and not left for a future Government which may well have different ideas.

The full implementation of the 100-day programme was the covenant made between President Sirisena and the people who elected him. He can be forgiven for taking longer than 100 days to implement the covenant in full, but he cannot reasonably expect to be forgiven if he divests himself of the powers he was elected with and thereafter dissolves Parliament without having fulfilled the aforementioned 3 principal items in his covenant. Doing so will be a betrayal of the trust placed in President Sirisena and will certainly result in disaster.

A possible option is the dismissal of the present government and replacing it with a government more likely to implement fully the undertakings in the 100-day programme.

The Ides of March are come – but not yet gone!

The Ball is fairly and squarely in President Sirisena’s Court.

*Elmore Perera, Attorney-at-Law, Former Additional Director SLIDA and Surveyor General, Past President SLTA and OPA.

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Latest comments

  • 3
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    Kusal Perera,

    Some people aren’t used to an environment where excellence is expected said late Steve Jobs, Apple co-founder.

    It applies so well to Sri Lankan politics.

    Sri Lankan politicians are not used to excellence in democracy during the last 67 years, or for millenniums before that!

    How can one expect it to appear all of a sudden?

  • 1
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    Elmore Perera,

    Sorry, it was wrongly addressed.

  • 1
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    I think we should be realists.

    Even if a person holds an office which is considered as truly independent has no mind to become independent but to think of himself and his survival then he is not independent at all. I am sure, Elmore being an Attorney can recall where the Apex Court in a case regretted the decision of the executive but did not intervene to remedy the situation and that was when the Tricky Dick had his five sixth majority in Parliament. The Chief Justice of the day who was frustrated by the actions f the executive too had to face the flak and alas there wasn’t an Upul and company to fight back unlike the Shirani B situation. (Strictly speaking no one dared to oppose the Tricky Dick.) Under those circumstances where is the independent mind to perform the duties of an office that guarantees the holder to perform the duties independently?

    On the other hand there are many an unsung hero in the public service, who do not bend to the machinations of the Minister or his private secretary to write favorable reports to the expectations of the Minister so that the Tender was awarded to the party of interest. That is an independent mind discharging the duties of office independently. Oh! Yes! they pay a high price. No scholarships etc. for them.

    The point I wish to make is that however, independent commissions etc are appointed, the corrupt have their ways of operating to the hilt. The so called “Permanent Secretary” who accommodates the wishes of the “Private Secretary” and the “Coordinating Secretary” is a good man and that is the basic qualification for the “Permanent Secretary” to be employed beyond his 60th birthday.

    The key towards the independent performance of duties is the payment of very good salaries in the public service and that was recognized by Lee Kuan Yew of Singapore in making the country relatively free of corruption. No 17A or 19A there. Ministers are paid well and there are no whispers of corruption. MP’s having an extra-marital? Whether government party or opposition a high standard of personal conduct is expected out of MP’s and such cases are sacked by the party and as a result of it they lose their seat. (There are no laws against extra-marital relationships as such.)

    Elmore, being an Attorney, should study the Constitution of Singapore.

  • 0
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    0 0
    Unconstitutional appointments of President’s Counsel Right to equality. 12. (1) All persons are equal before the law and are entitled to the equal protection of the law. (2) No citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any such grounds: (e) to appoint as President’s Counsel, attorneys- at- law who have reached eminence in the profession and have maintained high standards of conduct and professional rectitude. Every President’s Counsel appointed under this paragraph shall be entitled to all such privileges as were hitherto enjoyed by Queen’s Counsel; Directive Principles of State Policy. (6) The State shall ensure equality of opportunity to citizens, so that no citizen shall suffer any disability on the ground of race, religion, language, caste, sex, political opinion or occupation. Keyword “occupation” When these clauses read together the appointment of PCs violates the Right to Equality of professionals other than Lawyers. The provisions find a place in the draft 19th amendment. What about other professionals? Don’t they also reach eminence and render valuable services to the country?

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