Dec 30

The contents of the proposed new Constitution are yet to be finalised by Parliament. Nevertheless, many key safeguards will not be included in it because our politicians, barring a few exceptions, would find such provisions inimical to their all-consuming self-interest. It would take up too much space to go into the many desirable ingredients that are likely to be missing from the draft Constitution that is expected to emerge from Parliament sometime in 2017. So, we shall refer here to just two of them. 

Selection of Candidates to Contest Elections - The Citizens’ Movement for Good Governance (CIMOGG) has repeatedly pointed out that the selection of candidates to contest elections has always been in the hands of a small oligarchy within each political party, which will sponsor only those candidates who will (a) pledge unquestioning loyalty to the leader of the oligarchy, (b) be able to press the claims of their family or party connections, (c) guarantee an abundant supply of money for election expenses, (d) have recourse to the services of bands of loyal supporters who would not hesitate to overstep legal and social boundaries during election campaigns, (e) not let their conscience get in the way when wasting or stealing public funds, and (f) possess slick eloquence in dealing with the public. On the other hand, a good academic or professional qualification, a fair acquaintance with the law and economics, a crime-free past, self-discipline and the willingness to commit more time to the needs of their elected office than to their own affairs are qualifications to which an oligarchy will not give much weight except in the case of a few individuals whose inputs would be essential to help confront well-informed critics.

Voters would be deluding themselves if they believe that it is they who choose and elect their representatives whereas the truth is that they would have to vote almost exclusively for candidates who have been pre-qualified, mostly for the wrong reasons, by the party oligarchies referred to above.

Instead of continuing as in the past, the new Constitution should insist on some basic criteria that would make it difficult for crooks and incompetents to enter the Legislature. Unfortunately, there is no significant prospect that this improvement will be realised because no political party would agree to adopt constitutional changes that undermine its own oligarchy.

Some years ago, CIMOGG recommended that the Elections Commission should get every candidate to fill in a standard form, covering two sides of an A4 sheet, with personal data, and have copies distributed (in the appropriate languages) to all the households in their electorates rather than encourage the squandering of vast resources on posters, stages, TV spots, environment-polluting sound-amplifying equipment, banners, traffic-blocking processions, food, drinks, gratuities and so on. The data sheets should contain at least (a) details of the electorate being contested, (b) full name of the candidate, (c) residential address, (d) contact details of the election office, (e) date of birth, (f) gender, (g) civil status, (h) period of residence in the electorate, (i) name and address of last school attended, (j) last institution of higher learning attended, (k) educational qualifications, (l) professional qualifications, (m) computer skills, (n) present occupation and workplace, (o) brief details of civic and social service activities, (p) brief details of three priorities for action within the electorate, (q) brief details of three priorities for action by Parliament, (r) the candidate’s tax file number, and (s) a declaration that the candidate has not been convicted by a court of law.

Candidates who make false claims in their data sheets would soon be exposed because at least a few voters in their electorates would be acquainted with their real background.

By going through the personal data sheets received by them, voters would be able very quickly to short-list the few candidates who are bound to stand out from the rest. It would now be up to the voters to cast their ballots for one of these short-listed candidates, without being influenced by uncritical attachment to party, race, religion, language, caste or other factors.

The Constitution should empower the Elections Commission to implement a scheme on the above lines and to work with the media to educate the public about the value of this approach to help Sri Lanka get decent, conscientious and competent persons to adorn our Legislature. However, as the majority of MPs in the present Parliament would be hard put to submit even passably satisfactory data sheets, they may be expected to veto the implementation of any new election methodology that would expose their poor bio-data to public scrutiny. Hence, this is one safeguard that we shall not see in the new Constitution.

Separation of Powers - Sovereignty is in the People and cannot be violated or transferred outright. Fundamental rights and the franchise are the two components of sovereignty that the People retain at all times whereas the powers of government would, for practical reasons, be delegated in conformity with the provisions of the Constitution.

In simplified language, the powers of government include (a) the making of laws by the Legislature, (b) the management of all State activities by the Executive, and (c) the exercise of judicial power by the Judiciary. These three functions have to be carried out in accordance with the Constitution and the subsidiary laws passed by the Legislature. Once the relevant laws are in place, the three arms of government – namely, the Legislature, the Executive and the Judiciary – should be obliged to carry out their functions independently with only such interaction as the Constitution stipulates. In other words, a good Constitution must separate the powers and functions of these three entities to the optimal extent so that conflicts of interest are minimised.

J.R.Jayewardena gave Sri Lanka a Constitution that sounds democratic but is, in fact, almost 100% dictatorial. His power over the Executive arm was absolute for all practical purposes by virtue of his position as the Executive President. He also controlled Parliament by his power to appoint or sack Ministers and, less directly, the Judiciary by his power to select, appoint and promote Judges of the Supreme Court. Instead of getting rid of this kind of concentration of power in one person, PM Ranil Wickremasinghe, who is the moving spirit behind the drafting of the new Constitution has, on many occasions, kept insisting that Parliament must be supreme (even above the People?) in terms of the Constitution, presumably so that a future PM would be able to exercise all the powers that Jayewardena exercised as Executive President. The only privilege that would be given up would be Presidential immunity which would not matter to any PM who controls all three arms of government with the aid of a Constitution that subverts the concept of a comprehensive separation of powers.

Parliament should concentrate on passing laws and deciding national priorities. It must get the Executive to implement whatever program of work has been approved but must not itself interfere in executive decision-making. It should tell the Executive “what” it wants but not give directions as to “how” the Executive’s tasks are to be carried out. Parliament shall set up, within the Executive, whatever machinery is required to carry out all tasks and also appoint independent entities to deal with all matters relating to procurement contracts, progress and expenditure monitoring, quality assurance and conformity with Parliament’s requirements. It would be incumbent on the Executive to keep the Legislature regularly informed of progress on all tasks assigned to it. Parliament should have subject-specific sub-committees which shall be empowered to summon senior personnel from the Executive to appear before them and furnish whatever clarifications are sought.

As for the Judiciary, over the years, there have been numerous allegations/revelations in the media about the manner in which Prime Ministers and Executive Presidents have appointed members to the superior grades of the Judiciary and also pressurised them to give judgments that would be favourable to the regime in power. Mr Nagananda Kodituwakku (NK), Attorney-at-Law and courageous socio-political activist, has recently filed complaints with the Permanent Commission to Investigate Allegations of Bribery or Corruption (CIABOC) against five of our Chief Justices accusing them of giving judgments in favour of the Executive President, the Prime Minister or the government of the day. Whether he will be able to penetrate the strong defensive wall that will confront him remains to be seen. Whatever be the outcome of NK’s endeavours, it is crystal clear that the Judiciary is highly vulnerable and should be insulated from political pressures and allowed to function in a much more autonomous and professional manner than over the past seven decades. In particular, Parliament should, in no circumstances, be allowed to exercise judicial functions considering that the background and qualifications required to become an MP, even a good one, are very different from those that are needed to be a judge.

The higher that politicians rise within the Legislature the keener they are to exercise overarching power and control over everybody and everything. Even a nominal concession in the direction of the separation of powers would not be something they would favour.

Consequently, this safeguard will also be unlikely to be included in the new Constitution.

 

 

 

 

 

Nov 25

Most Sri Lankan drivers are conscious of the dangers and hassles of careless driving and generally endeavour to be law-abiding, especially considering the now greatly increased traffic density and police proactivity.  There is great incentive for them to try to drive in such a way as to obviate costly encounters with lawless road users or the guardians of the law.  Consequently, the offences they are likely commit would be mostly of a technical nature, viz. ones that are easy to detect but rarely cause serious problems (like driving a short distance over a white line or exceeding the speed limit marginally).  Unfortunately, the orderly movement of responsible drivers is adversely affected by our poor road conditions as well as the recklessness and socially-irresponsible attitude of a significant proportion of the younger persons who drive three-wheelers or buses, or ride motor-cycles.  Their youthful levels of testosterone induce them to display compulsive competitiveness, aggression and risk-taking with little regard for most road rules.  It is the behaviour of these younger persons – and not the minor transgressions of the much larger number of older drivers – which is the dominant ingredient that leads to the high frequency of road accidents that prevails presently.

At a recent news conference, a Minister supported the imposition of heavy fines on careless drivers by arguing that even heftier fines than those now proposed are levied in, for example, Singapore and Australia.  A little reflection will reveal that this is not by any means a fair comparison.  What he failed to say was that roads in those countries are designed, constructed and maintained properly, well-signposted, well-lit and also equipped with traffic lights that function at all times.  These lights are not turned off by policemen wearing uniforms noted for their poor visibility (especially at night) and giving hand signals that are not always clear.  The differences mentioned here, especially the poor road infrastructure, have a considerable bearing on the propensity for accidents to occur.  Therefore, penalties that may be acceptable elsewhere should not be blindly applied here.  Another important factor that should not be ignored is to relate the scales of fines to the per capita income applicable to Sri Lanka.

A substantial fine may be justified for an offence that has nothing to do with what happens on the roads.  Failure to secure third-party insurance, an emission certificate or the road license are offences which can be dealt with by the imposition of an appropriate fine.  Once these requirements are satisfied and the fines paid, the offender will not have to suffer any further punishments in respect of these failings until the following year, and even then only if he repeats these offences.  To be punished indiscriminately for minor infractions should not be the norm.

The offence of exceeding the speed limit by, say, 5-10km/h on some deserted road (where lots of traffic policemen love to lie in ambush) cannot be equated to the crime of a bus or truck driver who insists on regardlessly weaving right and left whilst overtaking vehicles either within city limits or on winding, narrow roads.  There is often no way to check the speed of vehicles in such restricted conditions.  On the other hand, on several occasions the reporters from at least one local TV station (while going on some unrelated assignment) have taken the opportunity to record digitally examples of extremely dangerous driving and shown them in their news bulletins.  Here, the offending driver may not have been exceeding the speed limit nor overtaking vehicles on the left side but driving like a maniac nevertheless, considering the congested road conditions.  Therefore, instead of doing the easy things like punishing drivers for technical offences, greater ingenuity and effort should be exercised by the police to emulate the aforesaid TV reporters to track and record the more egregious instances of driving that are seen every day everywhere because dangerous driving contributes to far more accidents than technical infractions that are easy to spot.

Considering that breaking road rules constitutes anti-social conduct, it would not be unreasonable to assume that persons who do so would very likely be habitual offenders and would think nothing of bribing traffic policemen in order to avoid being fined heavily or having to hire a lawyer and go through the inconvenience, mental stress and much greater expense of appearing in the traffic courts.  An offender with limited scruples would gladly pay a bribe of, say, 20-30% of the stipulated fine to help obviate the vexatious waste of time involved in surrendering his driving license and recovering it later from the relevant police station.  There is some reason to think that bribe-givers and bribe-takers have a natural tendency to recognise each other for what they are and, hence, it would not be too difficult an exercise for both parties to silence their own consciences.  Offenders would pay up; the policemen involved would pocket the hush-money and refrain from taking any further action.  These transactions are, of course, settled quickly and discreetly.

The heavier the stipulated fine, the greater the takings of the police team involved.  The improper earnings collected by a small team of traffic policemen would amount to a very attractive supplementary income.  An astute commentator has expressed the view that, because the legitimate remuneration of policemen alone cannot be increased without encountering resistance from other state employees, the government has probably devised this convenient way of improving the lot of the former!

Needless to say, police teams would not be free to release every offender by accepting bribes because they would have to penalise a sufficient number of road users to satisfy their superiors that the law is being fully put into effect.  By letting the experienced traffic offender cum bribe-giver escape, traffic police will find themselves obliged to apprehend a larger number of minor transgressors from among generally law-abiding groups of drivers and charge them for less serious violations.

A suggestion that we should like to make is for the police to secure a relatively small number of unmarked cars and vans, fitted with disguised digital cameras and recorders.  These vehicles should move around and follow the many offenders who are bound to overtake them recklessly.  As in advanced countries, digital recordings made on such occasions should be made legally admissible as irrefutable proof of the manner in which the vehicles being monitored were being driven.  The owners/drivers of the said vehicles should be obliged to furnish all relevant details of the person at the wheel of the hazardously-driven vehicle and arrange to submit all documents called for – driving license, vehicle registration sheet, emission test certificate, road license, insurance certificate etc at the nearest Grade 1 police station and have the details entered into a central data bank.  The penalty imposed on the owner and/or the driver should be made sharper with each infringement.

In short, it would be better to treat generally well-behaved drivers leniently without subjecting them to vicious fines but to get much tougher with those identified by CCTV tracking as Highway Code violators because the majority of serious accidents are caused by the latter.

Finally, we need to ask the authorities whether a traffic violation by a VIP or his minions will be exempt from conforming to the Highway Code, especially with respect to “pushing” other vehicles out of the way, exceeding speed limits, or getting traffic police to override the rights of other road users, especially at road intersections.

As an unavoidable duty, we are obliged to state that it is extremely unsatisfactory in principle for a government to consider the collection of fines and penalties as a respectable or constructive source of income in balancing budgets.  The correct approach in the preparation of national budgets should be to provide incentives for citizens to become more productive and simultaneously improve the efficiency and coverage of tax collection, which is absurdly low at present.  When one sees how much is being invested by individuals in business ventures, buying real estate, constructing houses, owning a multiplicity of vehicles, constantly partying at 5-star hotels, spending millions on weddings (apart from dowries) etc, there is every reason to conclude that the Department of Inland Revenue (DIR) is not carrying out the its investigations with anything like the commitment required.  The cooperation of the DIR must be constructively secured by the government so that tax collecting work is carried out more conscientiously so that fines imposed for road violations would not have to be relied upon to reduce budgetary shortfalls.

Oct 28

Aggrieved persons and groups have the right to protest in public in order to put pressure on the government or other lesser authorities to solve problems that have not received requisite, timely attention.  This is a privilege that all fair-minded citizens would not wish to deny to adversely affected persons or groups.  However, if a protest is undertaken without allowing a reasonable amount of time for the relevant problem to be solved by the concerned authorities, or it calls for the diversion of scarce funds from more urgent causes, there could be many unwelcome consequences.  Protests often result in great inconvenience and sometimes injury or even death to innocent members of the public. There could also be damage to public and private property, and economic losses to the State, individuals or businesses; and various other adverse outcomes.  Predictably, in the case of disruptive protests, the public is not likely to be sympathetic to the demands of the protestors, negating the whole purpose of agitating publicly even if the authorities are “blackmailed” into acceding to some of the claims made on them.

If protesters were even a tenth as mindful as they should be of the trouble they cause to their fellow citizens, they would not fail to experience pangs of guilt at the sight of the long lines of buses, lorries and other vehicles brought to a complete standstill for hours in our already congested roads.  They would easily form a general idea of the enormous costs of wasted fuel, impact on the environment and on the health of thousands of frustrated drivers and passengers, and so on.  It is difficult to think that they could be so hard-hearted as to be immune to feeling regret for the terrible anxiety to which many hundreds of parents are subjected by not being able to get their children to school on time or to collect them from half-deserted school premises?  What about the tens of thousands of hours lost by fellow-citizens in delayed journeys of every variety and degree of urgency? What about the losses that result from the waste of police resources to deal with obstacles to the free movement of traffic, injuries caused to police and protestors, damage to public and private property, and interruptions to the functioning of offices and businesses?

Too many protesting groups think nothing of the injustice to which they subject fellow citizens by recourse to unfair and unruly protests. They completely forget that the principal purpose of demonstrating in full view of the people is to gain the people’s sympathy and support to help apply greater pressure on the authorities to get their demands dealt with positively.  Instead, they foolishly cause hardships to the general population in the belief that the sufferings so inflicted would force the public to complain to the authorities, who would then presumably be compelled to surrender to the protestors’ demands.

Ill-considered protests have become ever more violent in nature because the bulk of those who participate in them do so under the persuasion, importuning or threats of the principal organisers.  The bulk of particpants do not know beforehand what premeditated or unplanned excesses the organisers will commit.  For example, obstructing the movement of fire engines or ambulances that carry ill or injured persons for urgent medical attention is something that the average, socially-responsible protester would not wish to have happen.  But too often, some irresponsible protest leaders, tend to become so intoxicated with the demagogic power that they are able to exercise over their less extreme fellow protesters that they drag the latter into acting in a manner that any decent participant would normally condemn.  Too frequently, these leaders misuse their dominance recklessly without any regard for the trouble, loss, injury and anxiety caused to the public.

The media tend to sensationalise the burning of tyres; blocking of public roads with trees or protesters’ bodies and piles of miscellaneous rubbish; and the attacking of  police barricades and the police themselves.  The more extreme the violence, disorder and disarray that accompany a protest, the greater is the public exposure that the media grant to protest leaders, giving them the notoriety that they appear to crave more than anything else.

The media, especially TV, focus excessively on the visually destructive features of protests and to aggressive or violent language.  There is rarely a reliable and reasonably comprehensive narrative published by the media that describes the beginnings of a protest and the negotiating path followed so as to allow citizens to assess whether the protest is justified or not, and whether sufficient time had been allowed for the contending parties to reach a peaceful settlement.  Instead, most protests are reported on only after they have become sufficiently conflict-ridden to become “newsworthy”.  The fundamental issues in contention are hardly ever examined.

It is generally accepted that the media need to perform several functions beyond merely dispensing news.  They have a responsibility, inter alia, to educate, entertain and contribute to creating a better society, and also to do much more to protect the people not only from crooked politicians, administrators, businessmen and others but from wrongful actions by self-centred groups that promote mayhem in furtherance of their own interests.  The single most important thing that the media should do in this connection is not to make heroes of the wrong people by giving excessive publicity to their anti-social activities.  It is this wrong kind of exposure that encourages extreme positions to be taken up and promotes ruinous behaviour that is detrimental to the well-being of peace-loving citizens.

Some problems that could end up in public protests may be rendered more tractable, if the media were to take an early, proactive interest in the difficulties faced by diverse segments of the population.  This could be done by devoting a certain amount of space or TV time (not after everyone has gone to sleep!) and invite groups that have grievances regarding the “deafness” of authorities to their representations to set out briefly the history of whatever they have built up as a case of justice being denied to them.  This should be done before problems take on a character that ends up in unwelcome public protests.

It is our firm conviction that the media owe a duty to their readers, audiences and the general public at large not to give more space and time uncritically for what loquacious protestors say and do, than to report the far more critical topic of how members of the public suffer.  Surely the stories setting out the losses and injuries of every type that are forced on law-abiding citizens are no less important than the intemperate antics of publicity-hungry protest leaders?  Violent and negative aspects of protests should not be over-dramatised without simultaneously presenting to readers and viewers at least some approximate cost estimates of the losses and avoidable expenditures incurred during the protests by destructive and unproductive acts.

The editors of leading newspapers and TV programs should raise a common cry to get the government to effect the following –

a.  No-one should be allowed to carry out a protest unless a stipulated process of complaining, discussing, mediating and arbitrating has been followed beforehand.

b.  Even after all avenues from complaining to arbitration are exhausted, protests shall be allowed to be held only in specified, centrally-located open spaces  formally identified by the authorities without overflowing onto roads and streets.

c.  Declare that “lightning strikes” are illegal and urge the media not to give its participants any personal publicity.

d.  Decide on those services which should be classified as “essential services” and provide effective special mechanisms to resolve disputes with the members of such services rapidly.

e.  Remind the people regularly that causing inconvenience and hardship to the people by interfering with their day-to-day movements and other activities – in other words, being a public nuisance – is already a crime in the statute books.

We call upon the leaders of the media world to recognise that the severe damage that is caused to the economy cannot be controlled unless the media jointly decide that enough is enough and that the immense power they wield, when united, could have a decisive effect in cutting down on undisciplined protests that are responsible for much hardship to the people and loss to the State.

Dr A.C.Visvalingam
President, CIMOGG
email:  acvisva@gmail.com

Oct 28

Aggrieved persons and groups have the right to protest in public in order to put pressure on the government or other lesser authorities to solve problems that have not received requisite, timely attention.  This is a privilege that all fair-minded citizens would not wish to deny to adversely affected persons or groups.  However, if a protest is undertaken without allowing a reasonable amount of time for the relevant problem to be solved by the concerned authorities, or it calls for the diversion of scarce funds from more urgent causes, there could be many unwelcome consequences.  Protests often result in great inconvenience and sometimes injury or even death to innocent members of the public. There could also be damage to public and private property, and economic losses to the State, individuals or businesses; and various other adverse outcomes.  Predictably, in the case of disruptive protests, the public is not likely to be sympathetic to the demands of the protestors, negating the whole purpose of agitating publicly even if the authorities are “blackmailed” into acceding to some of the claims made on them.

If protesters were even a tenth as mindful as they should be of the trouble they cause to their fellow citizens, they would not fail to experience pangs of guilt at the sight of the long lines of buses, lorries and other vehicles brought to a complete standstill for hours in our already congested roads.  They would easily form a general idea of the enormous costs of wasted fuel, impact on the environment and on the health of thousands of frustrated drivers and passengers, and so on.  It is difficult to think that they could be so hard-hearted as to be immune to feeling regret for the terrible anxiety to which many hundreds of parents are subjected by not being able to get their children to school on time or to collect them from half-deserted school premises?  What about the tens of thousands of hours lost by fellow-citizens in delayed journeys of every variety and degree of urgency? What about the losses that result from the waste of police resources to deal with obstacles to the free movement of traffic, injuries caused to police and protestors, damage to public and private property, and interruptions to the functioning of offices and businesses?

Too many protesting groups think nothing of the injustice to which they subject fellow citizens by recourse to unfair and unruly protests. They completely forget that the principal purpose of demonstrating in full view of the people is to gain the people’s sympathy and support to help apply greater pressure on the authorities to get their demands dealt with positively.  Instead, they foolishly cause hardships to the general population in the belief that the sufferings so inflicted would force the public to complain to the authorities, who would then presumably be compelled to surrender to the protestors’ demands.

Ill-considered protests have become ever more violent in nature because the bulk of those who participate in them do so under the persuasion, importuning or threats of the principal organisers.  The bulk of particpants do not know beforehand what premeditated or unplanned excesses the organisers will commit.  For example, obstructing the movement of fire engines or ambulances that carry ill or injured persons for urgent medical attention is something that the average, socially-responsible protester would not wish to have happen.  But too often, some irresponsible protest leaders, tend to become so intoxicated with the demagogic power that they are able to exercise over their less extreme fellow protesters that they drag the latter into acting in a manner that any decent participant would normally condemn.  Too frequently, these leaders misuse their dominance recklessly without any regard for the trouble, loss, injury and anxiety caused to the public.

The media tend to sensationalise the burning of tyres; blocking of public roads with trees or protesters’ bodies and piles of miscellaneous rubbish; and the attacking of  police barricades and the police themselves.  The more extreme the violence, disorder and disarray that accompany a protest, the greater is the public exposure that the media grant to protest leaders, giving them the notoriety that they appear to crave more than anything else.

The media, especially TV, focus excessively on the visually destructive features of protests and to aggressive or violent language.  There is rarely a reliable and reasonably comprehensive narrative published by the media that describes the beginnings of a protest and the negotiating path followed so as to allow citizens to assess whether the protest is justified or not, and whether sufficient time had been allowed for the contending parties to reach a peaceful settlement.  Instead, most protests are reported on only after they have become sufficiently conflict-ridden to become “newsworthy”.  The fundamental issues in contention are hardly ever examined.

It is generally accepted that the media need to perform several functions beyond merely dispensing news.  They have a responsibility, inter alia, to educate, entertain and contribute to creating a better society, and also to do much more to protect the people not only from crooked politicians, administrators, businessmen and others but from wrongful actions by self-centred groups that promote mayhem in furtherance of their own interests.  The single most important thing that the media should do in this connection is not to make heroes of the wrong people by giving excessive publicity to their anti-social activities.  It is this wrong kind of exposure that encourages extreme positions to be taken up and promotes ruinous behaviour that is detrimental to the well-being of peace-loving citizens.

Some problems that could end up in public protests may be rendered more tractable, if the media were to take an early, proactive interest in the difficulties faced by diverse segments of the population.  This could be done by devoting a certain amount of space or TV time (not after everyone has gone to sleep!) and invite groups that have grievances regarding the “deafness” of authorities to their representations to set out briefly the history of whatever they have built up as a case of justice being denied to them.  This should be done before problems take on a character that ends up in unwelcome public protests.

It is our firm conviction that the media owe a duty to their readers, audiences and the general public at large not to give more space and time uncritically for what loquacious protestors say and do, than to report the far more critical topic of how members of the public suffer.  Surely the stories setting out the losses and injuries of every type that are forced on law-abiding citizens are no less important than the intemperate antics of publicity-hungry protest leaders?  Violent and negative aspects of protests should not be over-dramatised without simultaneously presenting to readers and viewers at least some approximate cost estimates of the losses and avoidable expenditures incurred during the protests by destructive and unproductive acts.

The editors of leading newspapers and TV programs should raise a common cry to get the government to effect the following –

a. No-one should be allowed to carry out a protest unless a stipulated process of complaining, discussing, mediating and arbitrating has been followed beforehand.

b. Even after all avenues from complaining to arbitration are exhausted, protests shall be allowed to be held only in specified, centrally-located open spaces  formally identified by the authorities without overflowing onto roads and streets.

c. Declare that “lightning strikes” are illegal and urge the media not to give its participants any personal publicity.

 d. Decide on those services which should be classified as “essential services” and provide effective special mechanisms to resolve disputes with the members of such services rapidly.

e. Remind the people regularly that causing inconvenience and hardship to the people by interfering with their day-to-day movements and other activities – in other words, being a public nuisance – is already a crime in the statute books.

We call upon the leaders of the media world to recognise that the severe damage that is caused to the economy cannot be controlled unless the media jointly decide that enough is enough and that the immense power they wield, when united, could have a decisive effect in cutting down on undisciplined protests that are responsible for much hardship to the people and loss to the State.

Oct 12

by
Air Vice-Marshal (rtd) A.B.Sosa

Going by media reports, the relevant authorities in Geneva are of the view that foreign Judges and Investigators must supplement the indigenous Judiciary and investigators in order to ensure an unbiased investigation pertaining to the captioned subject. Many in the Opposition in Parliament are vigorously campaigning against this move on the grounds that it will impinge on the sovereignty of our country. Mixed signals in this context are emanating from the Government. Thus a rather hazy picture emerges.

In my opinion the foreign community is justified in having its reservations pertaining to the integrity of our Judiciary for the following reasons. During the decade commencing 2004 to 2014 our Judiciary has been tainted by the antics of three consecutive captains of our pinnacle of justice, commencing with Chief Justice (CJ) Sarath N Silva.

The tsunami of 2004 wreaked havoc on our country.  In the absence of the then President Chandrika Kumaratunga, who was abroad at the time, Prime Minister (PM) Mahinda Rajapaksa acted temporarily as the head of state and government.  The International community responded with both substantial material as well as financial aid. It was alleged in the media that a sum of approximately Rupees Seventy Million had been siphoned out to the bank account of a sibling of the PM from these donations. This transfer was challenged in the Supreme Court but CJ Silva ruled that these funds, which were termed “Helping Hambantota”, were not moved fraudulently into the account concerned.

In the latter part of 2014, by which time Mahinda Rajapaksa had become President, ex-CJ Silva (now retired) entered the hurly burly of politics but failed to make any substantial progress in the political party of the President. On realizing that he was politically up against a blank wall, he threw in his lot in support of Maithripala Sirisena, who was contesting Mahinda Rajapaksa for the Presidency in the elections scheduled for January 2015. Silva appeared on political stages in the course of campaign meetings. His most deplorable act was to appear on several TV channels with folded arms begging the pardon of all citizens for having given an incorrect decision pertaining to the “Helping Hambantota” case where, instead of sentencing the then PM Mahinda Rajapaksa to jail, he had exonerated him of all culpability. Sadly, Silva, in spite of his mea culpa, realized within a short period of a few months that he seemed to be destined to go into political oblivion as he was not getting any “plums” in the newly elected Government of President Maithripala Sirisena. He then shamelessly returned to the camp of Mahinda Rajapaksa, the defeated President, and sat by his side at meetings convened to criticize the incumbent Government of President Maithripala Sirisena.

Recently ex-President Rajapaksa was being feted by his supporters at an event organized by them. The most deplorable sight was to see photographs in several media of ex-CJ Silva reaching out with a grin on his face to touch the former President in the same manner as devotees stretch out their hands to touch holy men like Sai Baba. Sadly, this former Chief Justice, who seems to have the hide of a rhinoceros, is still strutting around in the political arena.

This unprincipled political adventurer was succeeded by CJ (Mrs) Shiranee Bandaranaike. Citizens of this country expected the desecrated office of CJ to revert to its pristine image of years long gone by. However, she succumbed to political machinations when her husband, who was a non-entity, was appointed head of the Insurance Corporation of Sri Lanka and, later, the Chairman of the National Savings Bank. It was at this time that the infamous 18th Amendment to the Constitution of Sri Lanka was forwarded to the Supreme Court for its comments, if any, and approval. The main clause of this amendment removed the limit of two terms that a President could serve and permitted an unlimited period of tenure. This was approved by CJ Bandaranaike’s court as proposed by the Rajapaksa government.

A short while after this ignominious approval, CJ Bandaranaike resisted giving further biased judgments in favour of President Rajapaksa, which resulted in her being impeached by Parliament on the grounds of impropriety in some questionable financial dealings.

The people of Sri Lanka are fortunate that Rajapaksa was defeated in January 2015 and the election promise given earlier by the incoming government to have the offensive clauses of the 18th Amendment repealed was honoured by the passing of the 19th Amendment.

The abyss into which our judiciary next fell was the appointment of Justice Mohan Peiris as the CJ. Earlier, while he was the Attorney General, he had the audacity to inform a United Nations sub-organization that a reputed journalist Mr Ekneligoda, who was credibly believed to have been “disappeared” by a powerful authority, was in fact resident in France. When questioned whether he had met him there, he replied that he was given this information by another person resident in France. Presumably this august body accepted this statement of CJ Peiris in view of his high position in the administration.

At this time, the disappearance of this journalist was very much in the public domain and, in fact, a habeas corpus application had been filed. On Peiris’s return, he was summoned to appear in the Magistrate’s Court and asked to confirm that he was told that Ekneligoda was living in France. He confirmed this. When asked the identity of the person who gave him such vital information, he said that he had forgotten the name and identity of this person. Surely, no one but a moron would believe this evidence given by a supposedly responsible senior Judicial Officer. The obvious conclusion is that he is a deliberate liar. It is amazing that such a character was appointed Chief Justice. Not surprisingly, Maithripala Sirisena, on being elected President, sent him packing home.

It is thus seen that three consecutive Chief Justices of Sri Lanka during the period 2004 to 2014 were a disgrace to the august office that they held.  In such regrettable circumstances, it is very logical for the relevant International authorities to view our muddied Judicial system with disdain. Hence, their insistence on buttressing our discredited Judiciary with foreign judges is not only logical but also very reasonable.

On a personal note, a decade of the period of conflict was spent by me in the Sri Lanka Air Force as the Director of Ground Operations. My area of responsibility was to supervise the defenses of all Air Force installations. These included the air-fields and their extended peripheries in Batticaloa, China Bay, Vavuniya, Minneriya, Sigiriya, Palaly and also Morawewa, which only had a helipad. In the course of my frequent visits I interacted closely with the high and mid-command levels of the Army. Thus I am aware of their excellent professionalism in the execution of their duties. I am confident that they will be exonerated of deliberate culpability in the perspective of the violation of Human Rights, subject to due allowance being made for unintentional collateral damage in the course of battling the deadliest terrorist organization in the world, as classified in international fora.

In these circumstances, I am convinced that it would be to the advantage of our three valiant services and the police if our Judiciary, supplemented by international legal luminaries, helps to clear their name for posterity, as I have no doubt that it will.

A B Sosa
Air Vice Marshal (retired)

20 July 2016
(Note:  This article has been edited for easier reading since it was first published in the SUNDAY LEADER)