Democratising a rotten system 

By Victor Ivan

The main aim of the UNP is to get laws enacted to set up the four Independent Commissions. However it is doubtful whether these commissions alone would be adequate to bring about the necessary change in governance.

The JVP's view is that no amount of reforms would be effective as long as the executive presidency system remains.

It believes reforms would be more fruitful if they go hand in glove with the abolishing of the executive presidency.

However the attitude of the minority parties towards the executive Presidential System is different. They believe the system at least gives them the opportunity to join in the selection of the executive leader of the country. The contradiction between these different views can be removed only through reforming the executive presidential system itself.

A civic rights group, the Alliance for Democracy, believes if the executive presidential system is not abolished, at least it should be reformed in such a manner that the President is made accountable to parliament and the judiciary. The Alliance emphasises three conditions that should be included in such a reform:

1. Abolition of the President's right to dissolve parliament after the lapse of one year with or without justifiable reasons. 

Under the present system, if the President is elected from one party and the power in Parliament shifts to another party, the President can dissolve Parliament after one year. This is undemocratic. 

2. Amendment of the vague provision in the Constitution regarding the naming of a Prime Minister by the President. Under the present system the President can nominate as Prime Minister a person of his/her own party who gets the support of a group in the majority party instead of the leader of the majority group in Parliament. For instance if President Wijetunga wanted, he could have nominated Sirimavo Bandaranaike instead of Chandrika Kumaratunga to the post of Prime Minister after the Parliamentary Election of 1994 and thereby creating a mess. Fearing such an eventuality, Ms. Kumaratunga reportedly met former President J.R. Jayewardene Mr. Wijetunga to assure her position as prime minister.

3. Abolition of the President's right to nominate a cabinet without the Prime Minister's recommendation and to take over any number of Ministries for herself or himself. The head of Parliament is the Prime Minister. The Prime Minister may be appointed from the President's party or any other party. Therefore the right to recommend the Cabinet should go to the Prime Minister. If the President belongs to one party, and another party has a majority in Parliament, and if the President takes over several Central Ministries of his or her choice it would lead to a complicated situation.

In addition to these three provisions, the Alliance believes that the provision for a MP to lose his position as a Member of Parliament if he is expelled from his party must be abolished. The present system is a mindless one which does not exist in any other country in the world. This system deprives the MPs of their freedom to act conscientiously on important national issues.

The Alliance also has an important proposal in relation to emergency powers. Although a government which comes to power must have the right to impose emergency regulations, that right must be used sparingly and only when it is essential. However unfortunately emergency regulations have become normal law now, through which governments can restrict democratic activities of the opposition parties. The Alliance proposes that the right to use emergency powers should be there only under special circumstances and this must be incorporated into the Constitution. The Alliance demands that every time emergency regulations are imposed there must be a prologue which explains why they are necessary and what conditions should be fulfilled for the removal of these regulations. The Constitution must also contain the right to challenge in Court any regulation so imposed. 

Media freedom too is an important and essential part of democratic freedom. The Editors Guild has submitted a series of proposals for the widening of media freedom. 

The Editors Guild has pointed out that Section 497 of the Penal Code which makes criminal defamation a punishable crime with imprisonment, is an obstacle to media playing two important roles — informing the people and scrutinising the action of the government in accordance with accepted international standards. The Guild called on the government to abolish this archaic law. 

The R.K.W. Gunasekera Committee appointed by the PA government to recommend law reforms that would broaden the freedom of the media, has also emphasized the need to abolish or amend the law of criminal defamation. 

Among the proposals submitted by the Editors Guild, "the freedom of Information Act" drafted for safeguarding the right to information, may be considered a draft law which might have an impact on the country in the context of democracy. Even legalising the right to information alone might prevent to a great extent the malpractices that occur at State level. 

Although the right to information is not included in the Constitution, it must not be forgotten that the government of Sri Lanka has, by agreeing to the international convention on civil and political rights, undertaken to honour that right. The amendments which were to be proposed in the chapter on fundamental rights in the Constitution of 1990 by President R. Premadasa had included the right to information. The proposed new Constitution of the PA too includes this right. 

It is also vital to bring the media institutions of the government too to a position of independence. The JVP has suggested that all electronic and printed media of the government including Lake House be brought under an Independent Commission. However what the Lucien Rajakarunanayake Committee appointed after the PA came to power to explore possibilities of broadening the ownership of Lake House recommended that government control should be removed by broadening the ownership of Lake House. If that proposal is implemented, then a Media Commission will be required for the government's Electronic Media Institutions only. The centre for alternative policies and the free media movement has drafted a "Broadcasting Authority Act" that would lead to the confirmation of the independence of the government's Electronic Media Institutions, and the expected aim can be reached by enacting the draft. 

In place of the system of code of ethics published under the Press Council Law which is now in operation for media persons, the Editors Guild, the free media movement and the Union of Newspaper Publishers have jointly published a code of ethics. In addition to this they have also drafted and published laws necessary for setting up an Independent Press Council in place of the existing Press Council which is government controlled. The Press Council System which exist now is entirely contrary to the system of Press Councils which exist in democratic countries. It also has semi-judicial powers that prevents the free dissemination and obtaining of news and freedom of publications. It need not be said that it is dangerous to confer judicial powers to a group of political henchmen nominated by the government. 

Although the proposals submitted might contribute to modern democratic requirements, how to achieve the necessary consensus regarding the proposals would be the main challenge before the country today. 

The writer is the editor of Ravaya.

Right of reply

Unfortunately Mr. Goonatilake has put forward statements regarding Norway that are not correct. The Embassy presumes that the reason for this is lack of information and would therefore take this opportunity to provide you with some useful information.

First, the journalist seems to believe that Norway voted "No" to an international recognition of the Day of Vesak in the UN. This is not correct.

In December 1999 a General Assembly Resolution regarding International recognition of the Day of Vesak was adopted, without voting, in the UN. The resolution recognises that the Day of the Full Moon in May each year is the day most sacred to Buddhists, who commemorate, on that day, the birth of the Buddha, his attainment of enlightenment and his passing away.

The resolution states that an appropriate arrangement shall be made for international observance of Vesak at United Nations Headquarters and other United Nations offices.

The resolution was put forward by Sri Lanka and many western countries supported Sri Lanka in this matter and therefore co-sponsored the resolution. Norway was one of these countries.

Secondly Mr. Goonatilake is of the opinion that the Norwegian Ambassador has planted soldiers in the Wanni and while he was a Redd Barna representative "settling upcountry Tamils in the jungles of Wanni to become Prabhakaran's present soldiers". It is hard for the Embassy to take such an insane allegation seriously. We will however limit ourselves to give you the following comment of the issue.

It is correct the Ambassador Jon Westborg was the resident representative for Redd Barna in Sri Lanka in the late seventies. After the post election ethnic violence in 1977 in the plantation area, Redd Barna together with some other organisations, assisted in resettling the Tamil population of Indian origin in the District of Mullaitivu. It is important to notice that this was done on an explicit request from the former president Jayewardene.