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.



102 Responses to “INADEQUATE CONSTITUTIONAL PROPOSALS – FOURTH INSTALMENT”

  1. Silver Price Says:

    This essay has discussed six ways in which the powers of the executive office have increased since the Constitution was first written. I have also given three ways in which the office of the presidency has decreased in powers since the framing of the Constitution. Overall, I think the executive office has grown and adapted with the changes of the modern world.

  2. silver price Says:

    The formal executive minimalism displayed by Buchanan and Lincoln in the secession crisis poses an interpretive problem. At one level there is an understandable tendency to discount executive constitutional reasoning as the self-serving rhetoric of expedient politicians. At another level, however, it is reasonable to understand the account of formal executive duty offered by Lincoln and Buchanan as an essential element of the substantive authority conferred on the executive department in the design of the Constitution. The ambivalence of executive power—alternately desired and feared both for its discretionary potential and formal limitations—is essential for maintaining the right relationship between constitutional form and political reality in the American republic.

  3. Silver Price Says:

    Most of the existing “federal” executive agencies are unconstitutional. They meddle in matters which are not the business of the federal government, as power over the matters is not granted by our Constitution to the federal government. Here are a few of the unconstitutional federal agencies: the Departments of Agriculture, Labor, Health and Human Services, Housing and Urban Development, Energy, Education, Transportation, and Homeland Security. Likewise for the Environmental Protection Agency, the Federal Communications Commission, the Office of Science and Technology Policy, the Office of National Drug Control Policy, the National Economic Council, the Small Business Administration, the Council on Environmental Quality, etc., etc., etc.

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