Developing more checks and balances | Daily News
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Developing more checks and balances

I suspended last week my annotations on the amendments I proposed in April 2015 to the 19th Amendment, which had failed to address most of the problems referenced in Maithripala Sirisena’s Presidential manifesto. I did not think that mattered inasmuch as I had covered the more important issues. But still to complete the record I thought I should note here the last suggestions I made.

Amongst these the first seems to be especially important because at present party constitutions are secretive documents, with no record of changes. This was particularly true of the UNP, since Ranil as he took over the leadership in 1994, when the party was decimated, introduced provisions that kept him virtually leader for life. Some changes were made under protest, but then reduced in scope after chaos was created by rivalries developing between Karu Jayasuriya and Sajith Premadasa, whose ambitious diffidence has throughout enabled Ranil to maintain his stranglehold on the party. And he has shown that, even if he decimates it, that does not matter in comparison with the main focus of his politics, himself, for he can continue to rise like a phoenix from the ashes of the ambitions of others.

The next area these last changes address is the judiciary, so that there will be provision to expedite justice and to limit the current worrying practice of remand and custodial sentencing being the norm. I cannot understand how those who clearly understand the wasteful nature of the current system will not take the simple steps necessary to change things. So as it is the resources of the state are wasted in coping with many more prisoners than are necessary, and more tragically young lives are wasted, for those remanded for trivial offences become hardened criminals given the domination of prisons by those experienced in crime, and seeking young blood to perpetuate their control.

Far better to have rehabilitation mechanisms, which will also be productive. And perhaps I am naïve, in that the current nexus between politicians and criminals, particularly with regard to drug dealing, may explain why reform is not seriously thought of.

I note also the need to enforce the power magistrates have to visit places of detention, to prevent or at least limit not only abuse by the custodians, but also the other abuse I have noted, the corruption by hardened prisoners.

I also tried not to limit the power of the judiciary to look into the actions of the police, since there has to be some control given the current capacity of a few corrupt officials to vitiate the commitment of others. And clearly the Police Commission has failed to make much of a difference, so we must think again about the desirability of a multiplicity of checks and balances.

Then I try to reaffirm a distinction that had been in the constitution since independence between the Auditor General and other officials who serve the public. There is a special category who are specifically not public servants, since they should not be subject to control by politicians. The Auditor General is perhaps the most important of these, but the Attorney General should also have this special status, as should the Ombudsman and the Secretary General of Parliament and the Elections Commissioner.

The other clauses pertain to maintaining the primacy of the Presidency, since while it was necessary to restrict its excessive powers, as I constantly noted this should have been through providing bodies that could check the executive with more statutory powers, not through giving other branches of the executive more power. I reiterate again the need to strengthen Parliamentary Committees, while also of course changing the electoral system, so that we have more Parliamentarians able to exercise controls, rather than the lobby fodder we now have, engendered by this corrupt and corrupting electoral system.

There does seem to be some light on the horizon, in that the Committee on Standing Orders seems at last to have awakened from the deep sleep it fell into after I ceased to be a member, and has suggested some changes that will give financial oversight committees more teeth. These do not I fear go far enough, but at least they are a start, to institutionalizing Parliamentary control over public finance, instead of Parliament having only the power to bleat while the executive can ignore without reason cited any strictures Parliament makes.

Here is a schedule of the final provisions I proposed to tidy things up, with the brief annotations I supplied when I proposed the amendments, which I have fleshed out above –

24 Add in the new 99 after ‘disciplinary action’ (provided such action is in accordance with the constitution of the political party or independent group, and such constitution conforms to the principles of natural justice and democracy)

This will limit arbitrary action and encourage all parties to have constitutions in accordance with the above principles.

32 In 111 H (2) change ‘may’ to ‘shall’ and add © rules to ensure that all judges and magistrates recognize the need to expedite cases and establish guidelines for this purpose

(d) provision to ensure that all judges and magistrate exercise their right to visit all places of detention and report on them with the purpose of improving conditions at such places, whilst also developing sentencing policies that limit the need for detention.

(e) rules to encourage rehabilitation rather than retribution in sentencing policy;

These will contribute to making the judiciary more responsive to people’s needs.

38 Delete

This executive control function should continue to be exercised by the President

46 Omit

It is too sweeping to prevent Courts looking into the actions of a police officer simply in terms of delegation of power by the Commission, since this can be misinterpreted

47 Omit

The Commission having power to receive complaints from the public and look into them should be specified, rather than leaving this as implicit because of what is in 49.

53 Leave the original version

The Auditor General should not be considered a Public Servant. Members of the UGC and the Languages Commission should be seen as public servants, and should not exercise active political rights (though this should also be specified in the relevant Act)

55 Omit

Unnecessary since the President continues by constitution to be the Head of the Cabinet.


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