Jun 27

Two prior CIMOGG articles under the generic title “Inadequate Constitutional Proposals” appeared in the SUNDAY ISLAND of 9 June and 23 June 2013.  They may be accessed at www.cimogg-srilanka.org.

There is no doubt that Sri Lanka would have grown economically at least as well as Malaysia, Singapore and Thailand have done, if only we had elected or appointed more capable and honest persons to the legislative and executive arms of government.  Nothing short of overhauling thoroughly the manner in which the legislative, executive and judicial powers are delegated by the People will enable us to make up for the time and opportunities that have been lost since 1948.  Investors have to be convinced that the economy is being professionally managed and that they will have access to a well-run administration.  Entrepreneurs, both from within and from outside the Country, will need to be assured of the independence and effectiveness of the Public Service, the Police and the Judiciary.  These assurances can be given only if the framing of a new Constitution is done with these objectives specifically in mind.

Neither the Westminster system nor the Executive Presidential System possesses the basic foundation for good governance and the Rule of Law, namely a clear separation of powers and functions between the Legislature, the Executive and the Judiciary.  With Ministers having one foot in the Legislature and one foot in the Executive, they misuse both their legislative and executive powers to the utter detriment of the public interest.  To make things much worse, the 18th Amendment enables the Executive to coerce the Legislature and the Judiciary to do whatever it (the Executive) wants, even against the most clear Constitutional principles.  We have yet to see a convincing proposal in the media as to how to move away from the highly damaging entanglement of these three entities to which the People have delegated the main components of their sovereignty.  As indicated in our first article of this series, we must get away from tinkering with the familiar, but far from adequate, Constitutions that we have been saddled with from 1947 onwards and, instead, devote the time and energy required to “think out” logical solutions to the various issues that need to be addressed.

In an efficient separation of functions and powers, the Legislature is charged with looking after lawmaking and the control of the Nation’s income, expenditure, assets and liabilities.  The Executive’s task is to set up priorities for the overall development of the Country and then seek the Legislature’s assent to the programmes proposed, as well as the authorization to spend the funds needed for implementation.  The Judiciary has responsibility for interpreting the Constitution and passing judgment on any disputes which are referred to it by a citizen or a lawful entity.  It is obvious that, in order to eliminate conflicts of interest between the repositories of these three components of delegated power, no person or entity should be a member of more than one of these arms of government at any one time – that is, one has to be either only in the Legislature, or only in the Executive, or only in the Judiciary.  This is a fundamental condition that must be included in a Constitution if we want to avoid having to amend it extensively over and over again.

In Sri Lanka, whatever party was in power at a given time thought nothing of foisting yet another costly election on the public to suit its political, astrological or other convenience.  This freedom must be curtailed altogether.  Optimally, all elections should be held at fixed intervals of time so that wasteful disruptions to the work and life of millions of citizens, on the present excessive scale, are eliminated or at least reduced.  By doing so, the State and the public will be spared the huge expenditures and the loss of production that accompany a multiplicity of unwarranted or untimely elections.

Furthermore, we have so many holidays in Sri Lanka already that it would be sensible to stipulate that all elections shall be held on Saturdays, so as not to diminish further the very low levels of productivity that prevail in all sectors of the economy.

One of the most important truths that we cannot circumvent is that, to make the best of our Country’s resources, it is vital that, without frittering away our energy quarrelling with each other, every citizen of this Country should think of himself and his fellow citizens solely as Sri Lankans with one common identity.  It is only by doing so that we shall be able to make the fullest use of the human and other assets that Sri Lanka possesses, and function as a strong, united, democratic nation.  A country that fails to encourage the building of a proud, common identity for all its peoples will find itself in a permanent state of racial, religious, class or some other form of tension and conflict.  Social, cultural and economic development will be adversely affected.  Therefore, it is imperative that the Constitution should include the same rights, duties and privileges for every citizen irrespective of race, religion, caste, class, profession, language, wealth, colour, gender, age, political loyalties and so on.  Every effort should, therefore, be made not to word the Constitution and other legislation in such a way as to keep harping on or accentuating the differences between the different ethnic and religious groups, or to favour one group at the expense of the others.  Apposite constitutional provisions do not have to be worked out from scratch but can be extracted from the several covenants, protocols and treaties that Sri Lanka has signed since it joined the UN in the early 1950s.

We have already referred to the excessive number of MPs that we have for a country of Sri Lanka’s size and population.  Within this overabundance, we also have a superfluity of Ministers – a Prime Minister, Cabinet Ministers, Senior Ministers, plain Ministers and Deputy Ministers – totalling around 60 in number.  This scandalous surplus has arisen not because of a heavy work load but because it is only by giving MPs these profitable positions that their loyalty to the Government is retained.  Far, far bigger countries like the USA and India have less than half this number of Secretaries or Ministers.  In this connection, it is worthy of note that, in 2007/2008, the Organization of Professional Associations (OPA) of Sri Lanka, which has a membership of over 40,000 professionally qualified persons, assembled a group of 150 or so highly experienced experts to study how to improve the efficiency of government.  They concluded that 25 Ministries would represent the right balance for Sri Lanka (see pp 194-196 of GOOD GOVERNANCE AND THE RULE OF LAW  or pp 219-222 of NEETHIYA HA YAHAPAALANAYA RAJAKARAVAMU  by A.C.Visvalingam).

CIMOGG has worked out that, to match the number of Ministries proposed by the OPA, there should be 25 Permanent Parliamentary Committees of five MPs each in Parliament to study all issues in sufficient depth.  Additionally, there would need to be three more MPs, elected by their fellow MPs, to act as the Speaker, Deputy Speaker and Assistant Speaker.  Thus, Parliament would need only 128 MPs in all, a number that is well within the range of 125-150 that was mentioned towards the end of the first instalment of this series of articles.

Representing the citizens of the Country in Parliament cannot be treated as a hobby.  Being an MP should not be considered to be an avocation to which one devotes whatever little time one can spare from one’s main occupation outside.  There must be a serious commitment to one’s responsibilities as a conscientious representative of the People.  Under the present Constitution, many MPs mark their attendance, spend a little time listening to the contributions of the more regular speakers and then retire to their offices or elsewhere to engage themselves in matters which may or may not be related to their duties as MPs.  A few do take their Parliamentary duties very seriously and undertake a great deal of study before they speak.  Too many of the others attend only to cheer or jeer as they think their leadership might appreciate.  To rectify this shortcoming, MPs should be compelled by the demands of the new Constitution to spend a minimum number of hours per week working in and for their respective Permanent Parliamentary Committees.  It goes without saying that the levels of remuneration paid to elected representatives should be such as to attract good candidates who would be prepared to devote the necessary amount of time to the demands of their office.  The provisions of the Constitution must make this happen.

The fourth and later instalments of this series will cover a number of other neglected issues.



4 Responses to “INADEQUATE CONSTITUTIONAL PROPOSALS – THIRD INSTALMENT”

  1. Gold Price Says:

    The remedy for infringement of fundamental rights will be available against all State action. A fundamental rights application may be made by a relative or friend or in the public interest. Although the President is non-executive, he would still perform executive acts on the advice of the PM. Such executive action shall be subject to judicial review.

  2. Silver Price Says:

    Many politicians, lawyers, and academics agree that the Constitution has a need for improvement. They highlight the weak electoral system as one area where change is needed. One of the likely constitutional changes that would be addressed is abolishing the executive presidency in favor of an executive prime ministership. Most lawyers and constitutional experts agree with this idea, believe there would be more checks and balances on the power of an executive prime minister. Even the two major political parties, the SLFP and UNP, at various times have agreed to put executive power in the office of the prime minister. Although President Mahinda Rajapaksa’s 2005 electoral campaign manifesto promised to abolish the executive presidency, the concentration of power in the Presidency accelerated during the Rajapaksa administration.

  3. Anita Mosley Says:

    Many politicians, lawyers, and academics agree that the Constitution has a need for improvement. They highlight the weak electoral system as one area where change is needed. One of the likely constitutional changes that would be addressed is abolishing the executive presidency in favor of an executive prime ministership. Most lawyers and constitutional experts agree with this idea, believe there would be more checks and balances on the power of an executive prime minister. Even the two major political parties, the SLFP and UNP, at various times have agreed to put executive power in the office of the prime minister. Although President Mahinda Rajapaksa’s 2005 electoral campaign manifesto promised to abolish the executive presidency, the concentration of power in the Presidency accelerated during the Rajapaksa administration.

  4. Sunil Says:

    You have a column called “Recent Articles” which is very useful.

    I would suggest that you have a similar one titled “Recent comments” like in the LBO website. This would help us to follow the thinking of others on the subject of the various articles that you publish.

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