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Excerpts from the speech delivered by the Foreign Minister Lakshman Kadirgamar as Chief Guest at the National Law Conference.
I have been a member of the Bar since 1955. I have temporarily deserted the Bar, but I am as concerned for the future of the profession as all of you are. I am proud of the Bar. I am sure you will understand me when I say that I am deeply honoured to have been invited to be the Chief Guest today at the National Law Conference of 1997.
When we speak of the independence of the Bar I think we have two questions in mind. They must be kept separate; otherwise confusion will ensue. One is the independence of lawyers as individuals practising the profession of the law, and the other is the independence of the Bar Association as the recognised institutional persona of the Bar.
First, the lawyer as an individual. In one sense, a lawyer, like all other citizens, is merely another member of the society in which he or she lives. However, in a democratic society, it could be said that all its citizens, lawyers perhaps more so than others because they are literate, skilled and articulate, should participate actively in the workings of the democratic process. Participation in that process necessarily involves thinking and talking about and, therefore, standing on one side or the other of the issues of the day.
It would be naive, indeed it would be wrong, to expect a lawyer to be apolitical merely by virtue of the fact that he is a member of the legal profession. There is nothing in the history of the Bar or its philosophy or ethics that requires a lawyer to be apolitical. He may choose to be so; that is his right, as it is the right of any citizen in a free State to choose whether to be apolitical or not.
What could fairly be required of lawyers, especially of lawyers, is that they be as objective as is humanly possible in their approach to the issues of the day. I see no inherent contradiction in the assertion that one can be partisan in the sense of supporting a political party, philosophy or cause and yet be objective - partisan because one prefers as a matter of choice one political party or philosophy or cause to another, and objective because one knows and sees that no political party or philosophy or cause is always, and entirely, free from prejudice and irrationality.
A lawyer, by dint of education, training and experience is well equipped to draw that distinction. A lawyer entrusted with political or administrative office, is able to, and must always strive to, civilise political debate, to bring balance and reason to bear on the formulation of political policies, to humanize the administrative implementation of those policies, to ensure the application of the basic principles of justice and fairplay to dealings between the State and its citizens.
Throughout the British period of our history, and in the fifty years of our independence, lawyers have played a notable role in our politics. Lawyer-politicians have adorned our public life. The names are legion, and highly distinguished, of lawyers on all sides of politics who have been active and able parliamentarians, leaders of parties and prominent trade unionists. Even cynics cannot say that it is the lawyers who drive our Parliament into bedlam. On the contrary, I can say that the lawyers in the 11th Parliament, in all parties, make thoughtful constructive and solid contributions to the debates in the House.
Next, I come to the question of the independence of the Bar Association, as the body that represents the Bar. A professional body is constituted to promote the welfare of its members and to protect their rights and interests.
Those are its main objectives. Ideally its principal office bearers, whether they be accountants, architects, auditors, doctors, engineers, lawyers or any others, should be placed in office by consensus in recognition of their suitability for office at a given time. Why? because political blocs undoubtedly divide the membership of a professional body in a manner that could prevent that body from meeting its main objectives.
The reflections I have voiced earlier lead me to conclude that the Bar, by its very nature, given the adversarial structure of our legal system, given the fact that so many lawyers are vigorously engaged in partisan political activity, is the most politicised professional body in the country. I agree with all those at the Bar - I am sure the majority at the Bar-who wish that election to the key posts at the Bar could be by consensus.
A contested election should be avoided because there is no mechanism by which divisive politics can be excluded from the process that leads to the election of its office bearers. In any election to any post various factors come into play. A voter supports a candidate because he empathises with that candidate. Empathy is based on many considerations, one of which might be that the preferred candidate is, or is perceived to be, of the same political persuasion as the voter. A candidate seeking election naturally seeks support from all quarters. It is perhaps too much to expect of him, even if he is avowedly apolitical, that he should refrain, even covertly, from seeking such support from organised political quarters, or spurn it, overtly, when offered.
However, candidates once placed in office in a professional body after a contested election are expected by the members of that body to play a demanding role, one which most office-bearers will find it extremely difficult to fulfil: that is, consciously to assert their independence from those who helped most to put them into office. Herein lies a dilemma for the Bar. Many of its members are highly politically oriented and motivated.
Yet, if a Bar Association election is contested, those members are expected, by those who are apolitical or less interested in politics, to put their politics aside and vote entirely on objective criteria, on so-called merit.
The elected candidates themselves might have, in the hurly-burly of an election, sought or at least gratefully accepted some politically inspired support. But once elected they are expected to act independently of all supporters. It is not easy for any person to handle these conflicting attitudes and demands.
I suggest two ways in which this conundrum may be resolved. The first is that the elected leaders of the Bar especially its President, should by sheer force of character demonstrate the independence of the Bar Association by refusing to be importuned by friends and supporters or pressurised by any political group. Some outstanding Presidents of the past have been able to do that.
The Bar Association should stand aloof from the Government of the day but, equally, it should be seen to stand aloof from the political opposition of the day. Consistent opposition to the Government of the day on every issue will soon lead to the suspicion that although the Association professes independence it is really opposing the Government for extraneous reasons. In order to dissipate this perception I would suggest that the incumbent President should always have around him, informally, a group of respected lawyers drawn from all political faiths who, collectively, will form a body known as the "Friends of the Chair".
This is a mechanism often used in the international community, when tense and complex negotiations are being conducted, to help the Chairman of an international conference to sense the mood of delegations, to defuse looming crises and to build consensus.
Such a mechanism could help our Bar Association to depoliticise its deliberations and to conduct its affairs in a tranquil atmosphere.
I conclude by congratulating the out going Committee, headed by my contemporary and old friend, Nihal Daluwatte, on their successful stewardship of the Bar Association over the past two years, and by offering my congratulations and best wishes to the incoming Committee, headed by Romesh de Silva, as they take up the daunting task of leading the Bar Association this year.
Why put the heat on President Boris Yeltsin, the most accommodating of Russian leaders, particularly when political trends in Russia, are so welcome? American pressure on an ailing Boris Yeltsin can only help the Communists and the nationalists, the political forces that thrive on the visceral anti-Americanism of the long Cold War years. Of course inflation and unemployment do shape mass opinion which is then particularly vulnerable to a propaganda which claims that President Boris Yeltsin is allowing the US to treat Russia like some Latin American banana republic - with a difference. As a military power armed with nuclear weapons, Russia does maintain a balance of terror which no western leader nor organisation like NATO can ignore, though the Warsaw Pact is no more.
NATO is expanding. The US-led military alliance would like to see some of the Soviet Union's Eastern European allies join NATO. At a recent Moscow ceremony where President Yeltsin, looking a bit better, participated in a wreath-laying ceremony, declared quite bluntly that Russia opposed NATO expansion. 'We are opposed to NATO enlargement. Our task now is to stall it as long as possible and not allow the renewal of confrontation." Plain speaking, certainly.
But in Brussels, his Foreign Minister Yevgeny Primakov was not all that accommodating. He had a one-to-one exchange with NATO Secretary General, Mr. Javier Solana. Mr. Primakov argued that Moscow's bottom line was a formal treaty between NATO and Russia. The US will not buy that since it would make NATO, the western alliance,and an empireless, economically embattled, and politically chaotic Russia, equals.
A NATO spokesman said that Solana and Primakov would meet again but it is not on that encounter we need to focus but the Helsinki summit on March 20-21 when President Clinton meets President Yeltsin. Meanwhile, it is useful for Asian students of the debate on European security, and proposed security structures, to examine a Chinese analysis if only because China is destined to be the first Asian superpower, presuming of course that Japan will not discard its present "peace constitution" and its self-imposed constraints.
Japan, an Asian country, not Germany, the original aggressor, was given the privilege of being the first victim of an atomic attack. Strategy or racial prejudice?
The post-war Moscow-dominated military alliance was known as the WARSAW PACT, named after the capital of Poland. To add to the many ironies of history that the student of world politics has observed in the recent past it was in Poland that the break-up of the Soviet Union commenced. What of the North Atlantic alliance? As long as a strong Soviet Union, certainly under Stalin, controlled Eastern Europe and confronted the west, America's European allies relied heavily on US military power. As the Soviet Union became economically weak, and eastern Europe brave enough to rebel, America's European partners became more self-assertive.
The collapse of the Berlin Wall led to the re-unification of Germany, and soon to a more self-assured Bonn. Chancellor Helmut Kohl is now a major actor in international diplomacy. Besides, the European Union finds itself challenging the sole superpower as economic-political interests clash.
And in America itself, President Clinton, despite his election victory, is confronted by an hostile GOP in Congress.
So, from Gaullism and President de Gaulle in person to Kohlism and Chancellor Kohl presiding over a united Germany, the US has been challenged and will continue to clash with Europe on many issues and many occasions.
Containment, even if the 'doctrine' is not officially revived, will shape American policy on China. Will Japan help the US do that job or will it move closer to Beijing.
Islam did reach Europe. The collapse of Yugoslavia is a grim reminder.
Right now however I wonder about the career prospects of Defence Minister Igor Rodionor who has embarrassed the President by talking far too frankly about the "Cash crisis" which has hit the armed forces. No salaries sometimes for months!
Yes, economics in command.
Nearing fifty years following Independence, the Sri Lankan political and constitutional ethos is still in a state of flux. and different constitutional experiments succeed one another on the national agenda, each more bewildering than the previous.
In a spirit that is tinged with some of the desperation of the French Kings just before the Revolution, the Parliamentary Select Committee is now considering a return to the Donoughmore Executive Committee system at regional level.
"What is being discussed is whether this would lead to greater consensus and less confrontation between politicians on both sides of the political divide," says senior UNP Parliamentarian and former Minister of Foreign Affairs A. C. S. Hameed. As the devolution package of the PA Government spearheaded by Justice Minister G. L. Peiris gets increasingly bogged down in a mire of political tit for tat, perhaps what is most remarkable about the present proposals is the manner in which they have received unanimous support within the Parliamentary Select Committee.
Dr. Peiris himself has long been an advocate of revitalising the Donoughmore Constitution in an appropriately modified form, and has pointed out that under this system, not only politicians of the ruling party have a say in making policy, but opposition politicians as well.
"Executive power is the real substance of political power. This is being progressively diluted now, with the result that not only the Opposition MPs but even the Government rank and file are frustrated. Perhaps this is a good move to distribute power more equally," agrees SLMC frontranker and Deputy Chairman of Committees in Parliament Rauf Hakeem.
Under the Donoughmore Constitution in 1931, the legislature described as the State Council was elected by the people, and then thereafter divided itself into seven Executive Committees in charge of different subjects such as Local Government, Education and Public Works and so on. Each committee elected its chairman. The chairmen of the seven Executive Committees together with three officials (the Chief Secretary, the Financial Secretary and the Legal Secretary) nominated by the Governor, constituted what is now referred to as the Cabinet. It was under such a system that widely differing personalities such as D. B. Jayatilleke, S. W. R. D. Bandaranaike and Arunachalam Mahadeva were able to sit together, thrash out problems and come to some agreement.
What is being debated now is whether our regional/provincial assemblies should also constitute itself into a variety of executive committees, with members of the legislature actively participating in the making of executive policy. Exact details of how the revised system would work are still under extensive discussion, but there appear to be significant differences from 1931 .There, it was the assembly that elected its ministers. Here, the Governor will look at the composition of the assembly and decide on the number of portfolios. The chief minister will then assign the portfolios to the respective parties, but the portfolios will be so constituted that no one minister would be regarded as being significant and another insignificant.
"The chief minister would not therefore be able to give important portfolios to political favourites, and marginalise others," says Mr. Hameed
But would this mixture of party politics and so-called consensual decision-making prove to be unpalatable? In fact, the Donoughmore Commissioners when recommending the system to the country in 1931 specifically commented that they were doing so in the absence of a party system in Ceylon at that time. The question is whether consensus at the region is practical or at all possible with a confrontational Centre? It is all too easy for example to envisage a situation where the Central government would encourage dissension at the region or directly aid/support only those politically in line. Supporters of the current proposals meet this argument by saying that much of these problems would be minimized once power is effectively devolved to the regions.
"Once parliamentary supremacy is replaced by constitutional supremacy and the regions function independently, consensual decision-making in the regions can become very possible," asserts SLMC's Rauf Hakeem
Political and legal analysts, however, continue to warn against "romanticising" the Executive Committee system and point out that by trying to get rid of one problem a whole host of other problems might be created.
"There is a lot of excitement about this. One is apt to get carried away. One must remember that what existed in 1931 was for a specific purpose, namely to win independence from colonial rule. Today, things are very different. The executive committee system as existed then cannot be reproduced within the context of a multi party democratic system," states Rohan Edrisinghe, a lecturer in law at the Colombo University.
"We must also remember that the system as it operated in 1931 resulted in inordinate delays in decision making as everybody struggled to come to a consensus," adds political scientist Dr. Jayadeva Uyangoda. Be that as it may, Dr. Uyangoda concedes that the issues which predominate at district level are mostly development issues with regard to which some kind of combined opposition and government decision making could take place.
"After all, until a short time ago, local government was not on party lines. It was all on the needs of the people. Making a change may not be difficult even now. There might be some teething problems at the start, but things would settle once the value of consensus is realized," says TULF President M Sivasithamparam.
It has to be granted that in the context of extreme political polarization, some kind of consensual decision making is necessary. As political violence and confrontation increase to alarmingly high levels, Sri Lankan civil society seems more than ever poised on the brink of anarchy.
UNP Parliamentarian A.C.S Hameed sums up the despondency felt by senior politicians when he says "Something has to be done. We cannot go on like this."
But is the political party system responsible for all this? After all, in other countries with multi-party systems, parties work together on national issues like education, health and even national security issues like the Conservative and the Labour parties in Britain on the Irish question. Is it therefore the party system that is at fault or the essentially divisive nature of our politicians?
In any event, the present thinking in the Parliamentary Select Committee focuses on introduction of the executive committee system only at regional level
"Party politics is so ingrained at the national level that one cannot even begin to think of change right now," comments TULFer M Sivasithamparam
Former Health and Agriculture Minister Gamani Jayasuriya disagrees.
"Having the Executive Committee system at the region and the party system at the centre will take us nowhere. It will be like changing pillows for a headache. The party system is the source of all ills in this country. We should have the political will and courage to abolish it completely," he says
In a sense, his challenge may seem outrageous. But the former UNP frontbencher who now heads the Sinhala Arakshaka Sanvidanaya(SAS) is only one of other eminent national figures who had also thought of adapting the 1931 system to the entire country. Among them are persons of the calibre of S. W. R. D. Bandaranaike and Dr. Colvin R. De Silva. Mr. Bandaranaike commented thus in 1957 when he was the prime minister:
"Under the Donoughmore system, backbenchers of all parties shared the executive work and you avoided the bitterness and the sense of frustration that is liable to develop otherwise. There were defects in the executive system as it was worked in Ceylon, but it has always been my view that it was a mistake to have done away with it altogether."
Former UNPer Gamani Jayasuriya puts it trenchantly "Scrap the package and appoint some of your bright constitutional lawyers to look into this," he advises the powers that be
A convincing case for adoption of a revised Executive Committee system at the national level had in fact been put forward by none other than Minister .Peiris in 1992.
Commenting on the view that a return to the Westminster system of Parliamentary Government would ensure a greater legislative control over the executive, Dr. Peiris argues that this is not necessarily so. On the other hand, he points out that the Donoughmore system gives every Member of the legislature the right to exercise supervision over government departments falling within the purview of the Executive Committee to which he belonged. Thus, Parliamentary scrutiny of government is much more meaningful, and Parliamentary control of finance also greater. Moreover within the committee, the minority standpoint was generally not brushed aside as every vote had to be counted. The last could be said to be one of the most appealing features of the 1931 system which is certainly fairer than the "majority way minority say" principle on which the Westminster system is based. In fact this point had been raised earlier by Dr. Colvin R De Silva in 1989 when he remarked that "Had the system of Executive Committees been carried over to the new stage of constitutional changes, much of the problems of the minorities with regard to participation of power at the centre might have been assuaged."
In a sense, it is a sad reflection on the extent to which the Sri Lankan political structure has been corrupted that the mere mention of implementing the 1931 system at a national level is more apt to provoke hilarity than anything else now. However the current discussions are perhaps a start, bringing into stark relief the national revulsion against extreme party polarization and the conviction that something should be done about it
If in the process, pre-independence governance methods are to be looked at, so be it.
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