Prof. S. Ratnajeevan H. Hoole
Right of Reply: Criticism of EC
Thanking the Editor of The Island for his editorial, I am writing in my individual capacity as a Member of the Election Commission to address comments by Gomin Dayasri (25.02.2016): “Dayasri castigated the National Election Commission, […] for accepting Democratic Party Leader Fonseka’s appointment in contravention of the law: ‘I have lost respect for [Mahinda] Deshapriya to some degree’.”
He added that the alleged irregularity should have been pointed out and the opinion of the Supreme Court sought. I will confine myself to EC decisions that I too was party to.
First, I am advised that there is no provision for the Commission to refer interpretations to the Supreme Court. Only the President may. We invoke that privilege by initiating actions that are challenged like the CPA’s plaint on Sarath Fonseka’s appointment.
Second, the charge that we should not have accepted Fonseka’s nomination. The Constitution’s §109A third paragraph says that the Election Commission shall by notice require the Secretary of the [UNP] to nominate “persons whose names are included in the list [defined in paragraph 2] to fill such seats and shall declare elected as Members of Parliament, the persons so nominated.”
The words “shall declare elected … the persons so nominated” gave us no choice. If the UNP Secretary nominated persons not qualified under §109A, he has to defend his decision, not we. That will be settled by the Supreme Court now.
Neutrality?
In the rest of this article, I will deal with the idea that officials like me should not discuss these matters in public. Nonsense! Such ideals really help cover up dirt while letting us think we are being principled. We are called not to be neutral but to be on the side of right against wrong. When a party cheats at elections, we need to condemn that and not hide behind neutrality. The EC neutrally facilitates the free exercise of citizens’ franchise.
Sub Judice Matters
We have this notion that we should not express opinions on matters like this before court. When people write that we were wrong, we have the right to say otherwise. I am absolutely unhappy with our legal system and am not prepared to sit back and pretend our judges are gods. They have the same failings we do – it was the Supreme Court that faulted a 12 year old victim in Bindunuwewa rather than his murderers.
In the several cases that pile up weekly naming me as a Respondent, I have to either sign over my proxy to the Attorney General (AG) with a reputation for playing politics by agreeing with the party in power – or go without representation. I am never asked for my opinion. Anonymous juniors will determine my answer.
AG Throwing Cases
In 2004 there were several cases by CIMOGG against universities for violating UGC ordinances. The AG represented both, the universities and the UGC, and made joint submissions denying the charges against the universities. As a UGC Member I objected. In one case so thrown, a person who cheated his way to a professorship was the brother-in-law of a DSG and brother of a senior judge (Island, 22.09.2004). The President of the Court of Appeal referred to my article and declared that he and his brother judge, both formerly from the AG’s office, would never have agreed to hear the case if they had known. Finally the AG was forced to withdraw from representing the UGC.
It is widely known that the AG threw a 2004 case involving the university admission of the daughter of an AG high-up who soon joined the Supreme Court. It led to several medical students having to be admitted with the daughter.
If we talked openly about these judicial scandals, they will not recur.
The Judiciary
For writing in The Sunday Leader (24.07.2011) on election rigging in Kayts, I faced a criminal complaint. The Magistrate Joy Mahadeva whom I had seen on ruling party election platforms issued summons. I was advised the summons were improper and to flee. Thereafter I wrote several articles critical of the then government. I returned in Aug. 2015 with the change of government and went to court straight from the airport. The new judge called both parties to his chambers and mentioned that the case cannot be sustained because my writing an article is not a criminal offence, that the court had no jurisdiction because publication was in Colombo, and that he had written to the AG for advice long back saying he did not wish to throw out the case as he normally would because he knew me from school. He had not received a reply. He instructed the police to consult the AG and either charge me or withdraw the case. Released on bail, I have been visiting court regularly with nothing from the AG!
I filed an FR case in 2014 challenging the previous University Services Appeals Board (USAB) decision to not object to its own order not being implemented. As reported to me by my lawyer, Chief Justice Mohan Pieris dismissed the case because he said it should rightly be filed before the USAB – an atrocious decision given that the complaint involved the USAB itself. I tried to get a copy of the decision but the file simply disappeared! Two years later when I happened to read the decision that an AG official produced at the USAB, it claimed I had withdrawn the complaint to pursue other remedies. It was fabricated.
The Courts and the AG’s are stuck with people promoted for political obedience rather than acumen. Mohan Pieris has been kicked out but many remain. The new government was elected to clean up and return the country to the rule of law. And that is the catch. The rot cannot be removed without lawful processes. We just need to understand with patience. However, the more we discuss and put these facts out in the open, the more awkward it will be for them to serve their political masters.
University Autonomy: Minister Kiriella
Another so-called principle is that the Minister must not interfere in universities. Statutorily the Minister issues general directions and the UGC regulates university administrations. But then, in USAB 873 where Jaffna and Peradeniya refused to implement national policy that the UGC said had to be followed, the AG who is to uphold the law, decided to defend lawlessness. He filed answers in the UGC’s inimitable English:
“These Respondents [the UGC and it Chairman] further wish to state that the Universities are separate legal entities and the UGC has not given power [sic.] to compel Higher Educational Institutions to do things by the Universities Act.”
Amazing! A competent UGC will know its power to compel universities to be lawful. The Act §3 reads the objects of the Commission shall be “the regulation of the administration of Higher Educational Institutions;” and §15 reads
“The Commission shall have […] the following powers […] (xii) to investigate or to cause investigation into such matters pertaining to the discipline of the students, or to the academic, financial or general administration, of any Higher Educational Institution, and to take remedial measures; and (xiii) to do all such other acts or things […] for effectively exercising any of the powers specified by this act and for the attainment of the objects set out in section 3.”
When the UGC will not uphold lawful governance, it is the political authorities who will be blamed. They are not precluded from issuing particular orders as policy. Indeed, a minister always may tell universities to start new programmes or to examine the credentials of a highly qualified Sri Lankan abroad who seems a useful addition to the staff. It is ensuring within the law that universities in their charge do well. It is the Minister’s job, especially when the UGC thinks it has no power to order lawful behaviour. What Minister Lakshman Kiriella did was to ask for a temporary appointment needing no advertisement (says the Establishments Code) after examining his credentials for suitability. Several usually thoughtful and balanced people jumped into the fray to criticize him.
Conclusion
Let’s stop our pretended principles which really are an excuse to support our political masters and attack our enemies.
Fedrick / March 11, 2016
If you want to clean Universities do the followings
1) Transfer all family members work in same University/Dept/Faculty as Lecturers.
2) Recheck all Lecturers and Professors qualifications and publications.
3) Never sent applications received for academic positions to academic depts. If you sent it they remove qualified people and only interview henchmen.
4) Remove good business subjects from Arts faculty and hand over to Science and Technology faculties.
5) Famous family dept must be closed and appoint President Commission to check inside and FCID must be called to checked inside.
6) Never give professorships for jokers.
7) Reduce retirement age to 60 or 58 for academic staffs.
8) Follow strict rule while appointing Professors: In order to be a real international professor your PhD from world top 100 University, minimum 20 articles in ISI/SCOPUS indexed journals, 10 text books with international publishers and three countries have to appoint you as a Visiting professor.
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Mallaiyuran / March 11, 2016
Mr. Uncool please read this article in that in the endocrinologist has written something beyond medicine and law, the doctors have to look at it when treat patience.
https://www.colombotelegraph.com/index.php/ministers-disclosure-hiv-our-social-responsibility/
There is a dam thing called ethics. (That may not apply people like you). In your comments earlier you said as there is no law minister can ask to appoint any one. If there is piece of law missing ministers first job to fill it up, not use it for his advantage. Now you say that there is piece common law established that minister fetches people from foreign countries.
There is nowhere in the western world, the government universities are told by ministers to bring a particular clown from a foreign country and crown him as the buffoon. Especially Lankawe cannot do it as it is refusing to bring war crime specialist, whom not even one single person is available in Lankawe. Further Lanka has signed the UNHRC resolution that they will bring foreign expert. The how can the same government’s minister bring people from foreign countries to his feet washing? You have cited so many things but not one single piece which says minister can force a dean to appoint whomever he wants. It looks like, like on some ministers’ heads there is murder cases hanging over to force them support government, there is case hanging on your head too. You have no way but to wash their feet and eat the bone thrown at.
Please don’t play comic in CT.
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Janz / March 11, 2016
Autonomous lunatic Mallaiyuran is back!
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Inspector Dirty Hari / March 11, 2016
Mallaiyuran,
“Mr. Uncool please read this article in that in the endocrinologist has written something beyond medicine and law, the doctors have to look at it when treat patience.”
Where did you learn English? Readers need to know in order to avoid becoming like you.
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Mallaiyuran / March 12, 2016
Inspector Dirty Hari ,
Dirty Hari please don’t live upside down or walk on your head.
Leaning English from the place I learned is not as bad as studying the logic from the place you learned it. Please tell your readers to learn English first and come to a comment web site that operate in English rather than after coming here and going to learn English. Further, instead of spreading your foul logic in the CT please lean somewhere to comment with some commonsense.
Please find some of your creation for a nick name to be used here. Stop plagiarism and copy catting. Thanks
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Kadirkamini / March 11, 2016
“What Minister Lakshman Kiriella did was to ask for a temporary appointment needing no advertisement (says the Establishments Code) after examining his credentials for suitability. Several usually thoughtful and balanced people jumped into the fray to criticize him.”
Prof. Hoole, may be you are taking the correct position on the issue with respect to Hon. Kiriella’s letter. You may be correct by law but the consequences of Kiriella’s actions would ruin any system. It is not prudent.
Just take your own case that you have mentioned above. The Minister of Traditional Industries and Small Enterprise Development was hardly ever in Colombo promoting Traditional Industries and Small Enterprise Development. He was always in Jaffna running the university of Jaffna and in fact much of Jaffna and charging people with criminal cases without any justification if not worse. No lawyer will still take a case against this minister. No that anyone dared to file in the first place. Do you want this?
Now what was the connection between Traditional Industries and Small Enterprise and the university? This minister is responsible for appointing hundreds of unsuitable persons to the Jaffna university. Even his labourer appointees would not stoop to touch the trash can. The grounds were hardly swept. The bathrooms were filthy and the place was a health hazard. No one could ask them anything for fear of the minister. Huge round pillars were trucked out with the knowledge of the VC and the security were fired for interference. The unqualified IT people he recruited were first choice for permanency. Now see where Jaffna university is after 8 years- a vernacular school acts more enlightened and moral!
Even if Hon. Kiriella is right, his action would only compound the problem of lawlessness we are already facing at Peradeniya and Jaffna. One would think that the educated have a cultivated sense of right and wrong. Not so.
Better to dam the bridge before the floods come down.
P.S.: Watch out Prof. Hoole! Honest people are not be able to hold any office in the universities already. The Minister should find jobs for his catchers elsewhere. He should focus on promoting education and research. Expected better from a pre-Bogoda Royalist!
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Mallaiyuran / March 12, 2016
Kadirkamini
“Prof. Hoole, may be you are taking the correct position on the issue with respect to Hon. Kiriella’s letter.”
If you are confused, you may not want to export it others. Just try to write something like “writing against Mr.Uncool’s baffling is only a hate mongering”… or demand CT to create a different section or demand CT to edit it or start an English professor job or another one like that and feel satisfied as have done the greatest job in the world . Those are methods normally used by those, who cannot see comments against their opinions, attempts to take over CT’s job for them.
I do not read Sinhalese.Below is the translation I have been using to comment. This is what appeared in CT. If there is an error please let me know.
“P. D. D. Amarasinghe, a resident of Watte Walauwwa, Harispaththuwa, is known to me. Please take the necessary steps to appoint him as a temporary lecturer on political science.”
This translation is asking to create a new Temporary position. It is not asking to fill up a temporary position. I bet if there is any provisions exempting advertisement, that is only to fill up temporary positions. certainly would not be to create one.
This translation is asking, without any other reply from dean, to employ the person being sent by Kirielle. Mr.Uncool is baffling in that to fool others. It looks like you misunderstand that dropping off advertising is dropping off selection procedure and start corruption, nepotism, self-help and other frauds that are engaged by the ministers and the Lankawe University system.
For your information, advertising is only one element is the selection process. Dropping out advertisement is, in all normal circumstances, imply to employ a faster and/or chapter process, which may not create an illegal selection process, but may not ensure the best suitable candidate is selected. But this is not to ask to drop off selection procedure. It is telling only to drop of costlier and time consuming advertisement.
I work in private sector. I have seen, to cut down cost, temporary positions are filled , many times, by cheap methods. Many times advertising is replaced by job agencies, internal notice boards, own web sites, promoting junior staff… All of them are recognized under “equal employment opportunity act” as fair practices in US. Mr.Uncool still have to show one provision saying to Dean to create a temporary position when ever the higher education have a foot licker with him.
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Emerson / March 11, 2016
Editor,
Colombo Telegraph
When you publish Prof. Hoole’s articles please separate hate speech from reasoned comments. The last time he wrote it was so frustrating to sift hard through the comments to pick out the thread of argument in the comments section. You owe at least that much courtesy to your authors and us. You could collect all the hate speech and put them after his article moves from front page or trash them as they deserve to be. This is not freedom of speech! The same bunch of people are reviling him every time anyway often without any connection to the topic at hand so you could easily group them. Their pitch keeps rising thanks to your encouragement. On the surface their comments may appear to be nothing but the external manifestations of their internal frustrations. But it is quite clear now that it is a concerted effort by certain “interest groups.” Don’t insult your readers by pretending this is not the case. Many gentlemen have pointed that out to us already.
Please edit out comments not fitting academic and journalistic decorum in your newspaper. If you would still publish at random comments in which there is no content but only murderous hate, at least help these gentlemen to redraft their letters to suit public sensibility. By this they will soon learn how to argue a point like decent folks do in the public domain.
You forget that Prof. Hoole’s colleagues and students internationally, take his articles seriously and discuss it.
Colombo Telegraph, please keep up your standards !
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Rohan / March 11, 2016
/I am writing in my individual capacity as a Member of the Election Commission to address comments by Gomin Dayasri /
/I will confine myself to EC decisions that I too was party to./
Can ‘officials like’ Dr Hoole make such comments in public? He is a member of the Election Commission and he was party to a certain decision, but I thought the protocols would not allow members to come out and spread their views (and the processes) for all to see. Can a member of *whatever* openly discuss the ways and means through which Dr Hoole tried to get the VC position? Would he be happy about such discussions?
/In the rest of this article, I will deal with the idea that officials like me should not discuss these matters in public. Nonsense! /
/We are called not to be neutral but to be on the side of right against wrong. When a party cheats at elections, we need to condemn that and not hide behind neutrality.
Does he qualify t be in the EC? Doesn’t have have a case with EPDP with respect to his trip to Kayts?
There was a flash in my mind, thinking, how a love child between Mahandapala and Hoole would shape up. Then I quickly flushed my mind and felt so sorry about imagining a creation of the worst shape, ways and means nobody would want to see around them.
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T. Jegendra / March 11, 2016
“I am writing in my individual capacity as a Member of the Election Commission”
This is having it both ways.
Anyone with a sense of organizational discipline will not do such things.
One speaks in one’s personal capacity or in an organizational capacity.
EC is not like the academic community or the Church.
The EC, to be credible, should speak with one voice and let its official spokesperson speak on its behalf. People tend to see such organizations and members as one and the same, especially if one identifies himself with the organization.
If the organization has any internal discipline, it would have by now sought an explanation.
Otherwise, not just the person but the EC itself should qut.
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sekara / March 11, 2016
“Conclusion
“Let’s stop our pretended principles which really are an excuse to support our political masters and attack our enemies.”
What a profound utterance from a person who pontificates on the morality of persons and professional bodies!
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Dissanayake / March 11, 2016
I doubt how he writes articles like this. Now he is an official person. I do not understand his term “individual capacity as a Member of the Election Commission”. He has collective responsibility on matters related to his official positions because there are more members of the commission. I feel this is not ethical. If he is not holding an official position, he can criticize and comment on any subjects freely.
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T. Jegendra / March 12, 2016
Dissanayake
The concluding declaration by the writer “Let’s stop our pretended principles which really are an excuse to support our political masters and attack our enemies.” could be meaningfully amended to read:
“Let’s stop our pretended principles and archaic notions of ethics which really are excuses to support our political masters and attack our enemies.”
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Dissanayake / March 16, 2016
If a judge writes to a newspaper or any other media before a case is still hearing, that is not ethical. Writing to a newspaper itself is not ethical. Similarly, the decisions of these independent commissions also have aspects of judgements that are judicial in nature. Therefore, members of the election commission or any other independent commission should not talk about “political masters” or “our enemies”. That is subjective and not within their scope.
Prof. Hoole makes his own standards on ethics and then pronounces judgements. That is ideologically wrong and that does not comply with good governance principles. I am not against his right to have a criticism or point of view on any subject. He can do it by resigning from that position.
These commissioners should have a code of conduct. They can not work based on their personal beliefs or point of views on any subject. They should work only on laws related to these commissions. There is also a proper mechanism. They are responsible only for the Parliament. Therefore, they should convey their decisions to the right authority and then the general public can get informed about the decisions. We do not want to know the personal beliefs and aspirations of independent commissioners. If one has such aspirations, it can be pursued as a general citizen. If these commissioners make the right decisions and policies impartially within the stipulated laws and regulations that would help the country to progress.
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