Reply: Separation of Powers

by Gaja Lakshmi Paramasivam

Mr. Basil Fernando,
Asian Human Rights Commission,Hong Kong,
02 February 2011
Dear Mr. Fernando,

(February 02, Colombo, Sri Lanka Guardian) I refer to your article published in today’s Sri Lanka Guardian.

I am particularly interested in the values of Separation of Powers between the Executive Government and the Judiciary. You state ‘The rich and sections of the middle class who supported the 1978 Constitution are now learning that they cannot have their cake and eat it too. It is either executive presidency or judicial independence, but not both.”

To me, Separation of Powers is needed between makers and executors/users. As a Chartered Accountant, I see this through the principles of Auditing which require Auditors to not interfere with Management. In this regard, In this regard, I wrote to as follows, when our Auditor General declared that they were looking into using Performance Indicators of client organizations in the course of their audits:

“Most progressive organizations produce both – Financial and Non-Financial Performance Indicators. They are both for MANAGEMENT purposes and reflect the THINKING and WORK_IN_PROGRESS. If you use Performance Indicators – then you are thinking with them. This is like the Executive Government participating in the Judicial process. Your Non-Financial Reports are the Legal records that these organizations are required to maintain – such as the Recruitment and Employee Assessment records. Where there is a big gap between Law and Practice – it requires YOUR staff to do the additional work. Taking the Performance Indicators distracts you away from this work. It is in breach of the Doctrine of Separation of Powers. These organizations must be allowed to confidentially do the cooking and it’s up to your staff to do the spy work from the finished product to the LAW and not to their dreams and goals. You are seeking the short path because your staff are not trained to find out from the client staff what is going on. Staff often ‘hide’ information from you because you are third party. So they should. That way your staff would improve their skills. Using client-staff’s work-in-progress deters your staff from thinking through their own specialty = AUDIT on the basis of existing LAW. Then we would become a uniform society instead of a diverse society challenging each other – you within the existing law and the operational staff towards tomorrow’s laws. Challenging leads to creativity – as you can see from me. Gandhi also said that the night he was thrown out of the first class compartment of the South African RAILWAYS was his most creative experience.

You need to get the client organization to publish their non-financial reports that are mandatorily maintained. Public service organizations primarily make goodwill. This can also be positive or negative – profits or losses. They are collected together and are balanced with the total costs through Common Funds. It will be useful for you to develop a standard dollar value for these legal requirements so the People can SEE and know the Truth. Your role is not to help them make a profit but to report whether they are and how much. How about doing one on UNSW? Or State Rail?”

Mr. Fernando, as you would appreciate, it is not only in Sri Lanka that we face such breaches. This separation of powers is most important in democracy. To me, it is best related to, through the game of international cricket – let’s say Australia v Sri Lanka. The two sides are facilitated to produce their own outcomes on the basis of Equal Opportunity to access the common facilities. If Australians assumed that they were superior to Sri Lankans, they are not likely to do their best. The standard of the game goes down. Even if the Sri Lankan side was not as good as the Aussies, it would be beneficial to Aussies to mentally compete against a side that they think is Equal to themselves. Likewise in issues of race. Often, Sri Lankan professionals in western countries, fail to demand of themselves the highest standards they are capable of. This happens when we our driven more by objective outcomes such as cash and status than by real values.

The parallel of this in the hierarchical system is for the junior member to NOT show any form to her/his work but merge the value to that of the leader. This is done on the basis of hierarchical positions. Often we are distracted by the individuals in the position, and fail to realize the full value of that relationship.

You state in relation to the 1978 Constitution of Sri Lanka ‘J.R. Jayawardene tricked the sophisticated classes of Sri Lanka, who voted him to power, by using such words as “sovereignty of the people”,” separation of powers” and “the independence of judiciary”. The actual power structure that was created through the constitution did not leave any room for such concepts to have any practical value. Those words only had a sentimental value for those who were attached to liberal ideas. Now, as the actual powers available to the executive president are used to the full, such sentimental enjoyments are no longer possible.’

This could be seen also as the way of Truth – that JR Jayawardene has left behind a summary of his work as an autocrat whilst enjoying the benefits of democracy at the global level. To me, the recent happenings in London when President Rajapakse went there, is of similar value. These social issues are best left to Natural Forces rather than be given particular forms using inappropriate legal and administrative systems. The system of Truth works automatically to produce perfect results. Human systems that work close to this system of Truth would likewise, work well to deliver Justice to All. If we do what we can and leave the rest to the system of Truth we would ‘see’ the karmic connection. When we accept it as such – we cleanse ourselves to a degree. To me, the lack of provision of separation of powers in the 1978 Constitution could have been due to the strong influence of Buddhism over the Government of JR Jayawardene. With such Common Outcomes we are all entitled to provide them our own interpretations for our own use.

As per my observations in Sri Lanka, including in North & East, commoners are yet to actively use the system of democracy. Majority race, like the Aussie cricketers, also need to play the legal, political games at the higher standards, if they consider themselves to be more capable than other races.

Our skills at the technical level could be assessed as being Equal. But as I said at a ceremony at the primary school - “Sinnamah Vidyalayam” in Sangarathai, Vaddukoddai – the foundation is our faith, as demonstrated through our conduct. It is this faith that gives us motivation, through the strengths of our elders.. Hence, the need to feel connected to our elders who have invested in higher values. To me, democracy was needed when there was a shortage of such elders. Hence the 50:50 system – which G.G.Ponnambalam also claimed in his own way. One does wonder whether the 1978 Constitution would have been more democratic with equal competition from the likes of GG Ponnambalam.

Today’s reality in Sri Lanka is racially divided nation. Unless we are facilitated to compete as Equals – our standards would go down. The Government needs the Equal Opportunity systems more than the Tamils, if it is to be internationally competitive. The system practiced by majority in their homes is the most natural system of the Nation.

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