Jul 26

Four CIMOGG articles under the generic title “Inadequate Constitutional Proposals” have appeared in the SUNDAY ISLAND of 9 June, 23 June, 30 June and 14 July 2013.  They may be accessed at www.cimogg-srilanka.org.

We have already referred to the importance of developing a common Sri Lankan identity.  Every citizen of this country should be able to declare proudly that he is a Sri Lankan in the same way as, say, an American or Indian glories in being an American or Indian.  One of the fundamental steps that would have to be taken in order to make Sri Lanka a strong, united, democratic nation with a clearly defined identity is that the Constitution and all other legislation must be worded in such a way as not to accentuate the differences between the different ethnic, religious and other groups.  Religion, in particular, should be strictly divorced from politics and government because it invariably promotes strong and irrational antagonisms, much more so than language or caste or class.  Financial support may, of course, be given by the State to religious organizations but strictly in proportion to the number of followers of each faith so that yet another source of grievance may not be created.

For the past 65 years, the public have voted once in five or six years to elect Presidents, Members of Parliament (MPs), Provincial Councillors, Members of Pradeshiya Sabhas (MPSs) and others, and then hoped that these delegates would work honestly to serve the People.  However, most of our elected representatives first look after themselves and their financial backers, relatives, friends and supporters.  Misappropriation has always been easy to practise because there are no effective controls to regulate and monitor continuously – and contemporaneously – how the People’s assets are being used or misused.  Stable doors have been invariably closed long after the horses have escaped.  Under the current Constitution, after COPE carries out its post-mortems (which, we would like to record, are being done far more conscientiously nowadays), all that voters can do to express their dissatisfaction is to wait for the next elections and vote for someone else.  But, in the interim, great damage and loss would already have occurred because of the absence of timely checks and corrective action, which COPE is not designed to handle.  Moreover, if we continue as in the past, it is more than likely that the new candidates chosen to replace the outgoing ones would be no better than the last lot because they would still be pre-selected by the same party oligarchies that would continue to favour the very candidates whom the People want to get rid of.

Consequently, by a sound re-writing of the Constitution, the People should be given an electoral system where the public as a whole are empowered to choose candidates for elected office without leaving it to a few powerful politicians to choose a bunch of mostly crooked yes-men.  Instead, voters must be given the basic details of the personal, educational, professional and employment background of candidates for elected office so that they (the voters) may themselves evaluate the information provided and choose the ones with the best combination of desirable qualities.  This can be done by requiring every candidate to fill in a simple, standardized application form furnished by the Elections Commission.  Copies of the completed application forms should be circulated (in the three languages) within each Grama Niladhari Division in which a candidate is permanently resident.  It is remarkable how much information can be extracted by this means in a carefully-worded application form of two A4 pages.  It is only those who are able to demonstrate that their immediate neighbours in the Grama Niladhari Division trust them who should be allowed to become candidates for office in the Pradeshiya Sabhas.  Similarly, it should be only those who could gain the confidence of all the Grama Niladhari Division representatives within a Pradeshaya who should be prequalified to vie for places in the District Councils.  And so on to Parliament.

In other words, no one should be able to become an MP without having proven, in successive stages, that the public consider him to be capable and honest.  This process of successive “filtering” would get rid of the majority of unsatisfactory aspirants to public office.  If any undesirable character manages to by-pass the filtration process, any ill conduct on his part can be checked in mid-stride if the Constitution is amended so as to provide for improved machinery to implement the provisions of existing laws and regulations.

The Bribery Commission has, in the past, caught a few sprats but has been restrained from trapping sharks with political connections and clout.  This is because the Declaration of Assets and Liabilities legislation (“Assets Law”) has several loopholes built into it by our lawmakers to ensure that it will not work except against minor offenders.  Its greatest weakness is that the documentation called for from candidates has to be submitted to a superior officer, who locks them away securely.  In practice, the public cannot get at the information in the declarations without taking risks that may invite dire reprisals against them, both financial and physical.  The only person who has unlimited, safe access to these declarations would be an incumbent President.  It is not difficult to see how such access could be misused by a less than scrupulous President.  It is, therefore, imperative to have a more foolproof system of corruption control.

It was openly stated by certain “privileged” taxpayers at a meeting chaired a few years ago by the present Secretary to the Treasury, with all senior officials of the Department of Inland Revenue (DIR) present, that this was one of the most corrupt State institutions.  There was no challenge offered to this observation but it is CIMOGG’s view that, with certain modifications to the structure of the DIR to strengthen its internal checks, this Department could become a professionally responsible tool for the prompt and effective checking of annual returns under the Assets Law.  With some key internal changes and arrangements for independent oversight, the loss of reputation of the past can be recovered. Those who are interested in improving or replacing the present Constitution must address this aspect with due care.

Let us look at the Assets Law from another point of view.

If the public declaration of one’s Assets and Liabilities is to remain compulsory in order that one may become eligible to be considered as a candidate for election, most middle and upper income Sri Lankans would probably prefer not to come forward at all though there would be many potentially good candidates among them.  This would be true even if the nomination of candidates is taken out of the hands of party oligarchies.  The chief reason for this situation is the fear that the publication of one’s assets, if they were substantial, would be an open invitation for relatives, friends and strangers to pester them for loans and donations, which might otherwise be routinely refused.  More worryingly, there could be dangerous demands for protection money, or kidnappings, or even murder by opportunistic criminals.  On the other hand, it is vital not to discourage keen citizens who would like to serve in elected bodies (under a more open system where political sponsorship will not be required).  This is a particularly important issue that any new Constitutional proposals must deal with.

To get over this difficulty, CIMOGG believes that, if the arrangements for monitoring by the DIR are improved as indicated in the seventh para above, it would be better not to ask for the prior, open declaration of candidates’ assets and liabilities but to insist that, inter alia, every successful candidate at the Pradeshiya Sabha, District Council and Parliament elections must open an income tax file at the DIR and submit annual returns to it, even if no taxes have to be paid.  Declaring one’s income and wealth to the DIR, and having one’s return scrutinized annually, is a routine process which is covered by the DIR’s secrecy provisions.  There would be no necessity to open out one’s confidential financial information to the whole nation.

To date, the five instalments of this series have considered a number of improvements that are required to be made to the Constitution over and above the limited changes that are the foci of attention by those wanting to amend it.  There are more to come.

Jul 14

Three prior CIMOGG articles under the generic title “Inadequate Constitutional Proposals” appeared in the SUNDAY ISLAND of 9 June, 23 June and 30 June 2013.  They may be accessed at www.cimogg-srilanka.org.

Most proposals for constitutional reform over the past several years have been targeted largely at dealing with the so-called National Question, the abolition of the Executive Presidency, replacing proportional representation with first-past-the post voting, and the repeal of the 18th Amendment, followed by the resuscitation of the 17th Amendment in an improved form.  There has also been talk of a unitary state, a federal state, a confederation, a union of regions, regional councils, provincial councils, district councils, the 13th Amendment, a 19th Amendment, a 20th Amendment, a 21st Amendment, two ethnic Vice-Presidents, a Senate or Upper House, the Westminster system, the US system, the Indian system, the South African system, the Swiss federal system, grama rajyas, official and national languages and so on, almost ad infinitum.

Virtually all the proposals put forward have been based on some cutting, shaping and supplementing of what is already there in the Constitution, or was there in the 1947 or 1972 Constitutions, or is to be found in some other countries’ Constitutions.  Partial solutions of this type, when patched together, are bound to lead to unexpected dead ends, as we have seen in crucial issues in the past, eg. the emasculation of the Constitutional Council, as well as the tenacious hold maintained on the Executive Presidency by two of our Presidents despite their repeated solemn promises to the People to abolish it, not to mention the passing of the disastrous 18th Amendment after “buying” MPs elected on very different platforms.

Whilst the task of resolving the National Question and getting rid of the Executive Presidency are, perhaps, two of the more difficult challenges facing Sri Lankans, success in doing so will not be the panacea for our other ills, some of which are of at least equal importance, eg. the extensive breakdown of the Rule of Law and the failure, for over six decades, to establish a universally-acceptable Sri Lankan identity.  We need to be aware that concentrating solely on dealing with the National Question and the Executive Presidency would be akin to treating a patient suffering from a disfiguring skin disease with powerful externally-applied drugs, without much attention being given to the fact that the patient exhibits a number of less prominent symptoms of other more deep-seated and dangerous hazards to his life.  Whilst the patient’s skin may begin to look “fair and lovely” for a time with the limited treatment given, his life expectancy could be drastically reduced by the failure to treat the underlying systemic weaknesses.  Similarly, there is little doubt that, if the other acute deficiencies that are in the Constitution are not dealt with in parallel with the formulation of solutions to the present high profile objectives, any benefits gained by the Country would be superficial and temporary.  The first three instalments in this series have already highlighted a number of important shortcomings that need to be corrected.  A few more are discussed below.  It is up to the People of Sri Lanka to study these without being influenced by prior prejudices or slavishly following poor precedents.

The Centre currently looks at the question of the “devolution” of power from two angles.  One is how to prevent “too much power and resources” being “devolved” to the North and East.  This is only the tip of the iceberg.  The other angle, which is well hidden, is that our politicians, irrespective of party affiliation, want to retain almost all power at the Centre, for their own benefit.  The good of the People is not a significant consideration.  Hence, there is fair reason to think that most proposals to “devolve” power to the periphery may be classed as “shadow theatre”.  What those at the Centre, whether Government or Opposition, presumably have in mind is to make a token show of empowering the citizens at the periphery whilst making sure that the Nations’s income and assets will continue to be tightly controlled by them at the Centre, employing all the might of State machinery.

The average citizen is probably not aware that Articles 3 and 4 of the present Constitution make no reference whatever to Parliament having the power to “devolve” anything.  On the contrary, these Articles stipulate that it is the People who possess the requisite inalienable sovereignty and authorize Parliament, the Executive and the Judiciary to “exercise” power on their (the People’s) behalf.  There is a world of difference here.  This being so, where is the logic in the grantor of powers (the People) being placed in the position of needing to have power “devolved” on them by the grantee (Parliament)?  To use a word greatly favoured by Minister Wimal Weerawansa, it is more than apparent that there is a silent “conspiracy” of self-interest by the leaders of our political parties to establish themselves as the overlords of the People by misusing the powers delegated to them by the People.

For the same reason, it is puerile to speak of, say, the Parliament or the President being “supreme” and at the summit of a pyramid of power whilst the People are relegated to a lower level.  On the contrary, it is the People who should be at the summit.  The Constitution, which represents the corporate will of the People, should reign supreme.  In short, we need to re-empower the People.  One needs to discourage the popular inclination to think of power hierarchies, and base the new Constitution on the clear concept that Parliament, the Executive, the Judiciary and all other intervening institutions of government are at one and the same level, but with differing “packages” of powers delegated to them by the People through the Constitution.  A salutary by-product of such a step would be the elimination of the present obsequious grovelling that is expected and encouraged by those holding positions of power over the citizenry.

Continuing beyond Articles 3 and 4, democracy and subsidiarity demand that the right to decide what is to be done with the People’s taxes, and other income and assets, must be distributed in a fair and autonomous manner among the Grama Niladhari Divisions, the Pradeshayas, the Districts (or Provinces), and the Centre.  A good Constitution would clearly specify what powers the People delegate to the Grama Niladhari Divisions, the Pradeshayas, and to either the Districts or the Provinces.  It is only the powers that cannot be exercised by these peripheral units that should be delegated to Parliament.  If this is done, Parliament would only have to deal with matters that affect the Country as a whole, such as foreign affairs; defence; currency; central banking; large projects in power, energy, transport, irrigation etc; national standards; the capital city; posts and telecommunications; ports and airports; international trade; customs; education and health policies; central

research and training institutions; etc.  CIMOGG has worked out how this concept can be implemented without difficulty.  Such a system would have Districts or Provinces in the power continuum, but not both.  As for CIMOGG, it prefers Districts to Provinces for reasons of administrative efficiency.

By diverting the attention of the public almost exclusively to the National Question and the abolition of the Executive Presidency, but skipping over essential reforms in other areas, our political parties are doing a great disservice.  That the public is getting increasing restive with the fact that its rights and reasonable expectations in many other areas are being cynically and disdainfully violated or rejected is becoming more and more evident from, for example, the worrying frequency of incidents involving the blocking of roads and fierce confrontations with the Police – not to mention the turmoil in the educational sector, at all levels.  It is only by re-empowering the People outside the Centre, through the medium of a genuinely democratic Constitution, that justice, equality, unity and long-term stability can be safely assured.