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.



10 Responses to “INADEQUATE CONSTITUTIONAL PROPOSALS – FIFTH INSTALMENT”

  1. Alyssa I. Harding Says:

    Under the constitution and the election law the Department of Elections is expected to fulfil two objectives; holding elections for electing the representatives to the legislatures; national, provincial and local and preparation of electoral registers annually after an enumeration of electors. Since all the activities of the Department of Elections involve implementation of the laws and regulations in relation to elections, there is a misconstruction that activities of the department are static, periodical and they could be considered as routine. Now the time has come up to get change this attitude due to various reasons. Consequent to the introduction of the new election laws with the system of Proportional Representation in 1978 all elections become one-day elections and the department was compelled to be in readiness to hold some election of frequency of say every 15 months. Political parties, candidates, the general public, civil organizations which involve in elections at various levels are very keen on having a democratic electoral process as a basic for good governance. Therefore taking of any step that would help the development of the electoral process which fulfils the objectives of the underlined principles in the election laws can be considered as a national priority as commitment.

  2. Brenda Vazquez Says:

    The rise of Basil Rajapaksa has been rapid to say the least. Having spent years out of the country pursuing other interests, his return to support his brother’s presidential campaign was unexpected.Even more surprising was the popular backing he managed to acquire within a very short period in an unfamiliar district – he recorded the highest number of preferences in Gampaha in the 2010 parliamentary election, about as many as the next three candidates combined. He is projected as a man who gets things done. The idea is that he will do for the economy what Gotabhaya did in terms of security, with Mahinda Rajapaksa being the figurehead who holds it all together.

  3. Luciano Fitzgerald Says:

    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.

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