Five CIMOGG articles under the generic title “Inadequate Constitutional Proposals” have appeared in the SUNDAY ISLAND of 9 June, 23 June, 30 June, 14 July and 28 July 2013. They may be accessed at www.cimogg-srilanka.org.
There are some additional issues, besides those discussed in the aforesaid articles, which will be addressed below. However, before we look further into the inadequacies of the numerous proposals being put forward by others to “improve” the Constitution, it appears to be the correct time to answer three questions which have been raised informally by friendly critics regarding the practicality of writing and securing acceptance of a Constitution that will take into account the many concerns raised in this series.
Question 1: “Would a Constitution that takes into account all the requirements mentioned here not prove to be too complicated?” The answer is: “No. CIMOGG has made considerable headway in finding logical, relatively easily-implemented solutions to the problems that we have highlighted. In fact, there will be an overall reduction in the complexities of the present electoral process and the administrative requirements. The solutions that have been worked out are now being integrated into a single document and will be published in due course for critical comment by members of the public before the legal drafting is undertaken. If and when this Constitution is adopted, there would be an unprecedented amelioration in all areas pertaining to national unity, democracy, the Rule of Law and good governance”.
Question 2: ”Would not the adoption of a Constitution that incorporates the ideas espoused here be resisted vigorously by the majority of politicians, whatever be their party affiliations, because they would then have to restore to the People so many of the profitable powers they have bestowed upon themselves under previous, politician-friendly Constitutions?” The answer is “Undoubtedly yes!”
Question 3: “In view of the above answer to Question 2, what chance is there of getting a People-empowering Constitution adopted against the might of the entrenched political machinery?” The answer is “Very little, unless and until there occurs such a major breakdown in the political machinery that the People are forced to sit down and try to arrive at a consensus on a new Constitution, in much the same way as has happened time and again in other countries where there had been an irresistible destabilization of the regime in office. There is no reason to think that the Sri Lankan body politic is such a uniquely sound entity that it would be permanently immune to involuntary change by circumstances outside the control of the machinery of the State. In an exceptionally disturbed situation, a ready-made Constitution such as the one being prepared by CIMOGG would come into its own as a 100% non-partisan template that would help to mould a consensus quickly. Just when such an eventuality may be expected to arise is, of course, anybody’s guess”.
We now look at a few more lacunae that a new Constitution should fill. Once a comprehensive separation of powers is achieved, it would be advisable to place certain restrictions on the participation of those with dual citizenship in exercising the powers of government which are delegated by the People. It appears self-evident that anyone who has sworn unambiguous loyalty to some other country could not wholeheartedly represent the People of this country in the Legislature, or act sufficiently independently in the Judiciary or hold very senior positions in the Executive. On the other hand, as far as non-senior positions in the Executive are concerned, there would be no great risk in employing not only those with dual citizenship but even total foreigners who would have the kind of expertise lacking among our citizens, eg. oil exploration, nanotechnology, biometrics and so on.
With an effective separation of powers, it would be essential to have as the President of the Country an independent person of distinction and integrity to act as (a) a unifying national figure, (b) the face of Sri Lanka to the outside world, (c) the legal appointing authority for senior positions in all three arms of government, and (d) the Commander-in-Chief of the armed forces, with formal power to declare war or peace. This individual should be someone who is highly respected throughout the Country by all sections of society and is capable of holding his own intellectually among other world leaders. Members of the public should be encouraged to participate in electing the President by submitting suitable names for this purpose. By inviting nominations from all corners of the Island, the open and democratic nature of the process of choosing a truly representative Head of State will be accentuated. However, to keep the exercise within manageable administrative limits, it would be sensible to have, say, the 25 District Councils proposed by CIMOGG sift through the names sent by the public in their respective areas and forward just one name each to Parliament for a secret vote. There should be no bar to several District Councils simultaneously forwarding the name of the same national figure because the ultimate goal is to identify someone who has wide support throughout the Country. By this arrangement, the number of names to be considered by Parliament would not exceed 25. A President so elected would be independent of any conflicting power centres. In carrying out his duties, he would be obliged to act strictly on the advice of Parliament, as conveyed to him by the Speaker.
A constructive Constitution could make a beneficial impact by reducing the total amount of time, effort, State funding and private spending that are currently required to be incurred on Local Government, Provincial and Parliamentary elections. The reduction could be effected elegantly by combining and modifying the current electoral processes to permit all elections to be completed within a narrow time frame (worked out by CIMOGG to be 18 weeks in all). In such an arrangement, the public would not be irked by obtrusive election activities for a clear three and a half years in every four-year election return period.
A highly objectionable practice that governments have been turning to increasingly is the resort to rushing half-baked or even undemocratic legislation through Parliament without giving the public or knowledgeable commentators or the Opposition time to offer comments or improvements or raise objections in the Courts of Law. For example, CIMOGG has repeatedly condemned the manner in which the disastrous 18th Amendment was rushed through Parliament, three years ago. This Amendment was a major assault on democracy, the Rule of Law and good governance. The new CIMOGG Constitution will not permit this kind of skullduggery because there will be a mandatory procedure that would provide for a detailed White Paper to be published in order to gain the benefit of comments by all stakeholders before a Bill is permitted to be presented to Parliament. Depending on the length and importance of the legislation, at least 2-6 months should be allowed for this purpose. An analysis of the laws passed by Parliament to date will show that, other than in the case of unpredictable natural disasters, which required emergency funding, Parliament has never had to legislate on any problem that had not been known for years and years before. With such a long time available for reflection, there would have been no difficulty in preparing comprehensive White Papers for the timely response of the public and stakeholders, prior to placing the Bill before the House for a vote.
Another weakness in the manner of Parliament passing laws and budgets has been the lack of in-House expertise. As it is inconceivable that any member of Parliament or any of its Committees would have a sufficiently comprehensive knowledge of all the subjects that fall within their purview, the futility of allowing MPs alone to discuss issues requiring expert inputs does not require special emphasis. Hence, convenient and speedy access to independent specialist expertise should be ensured by incorporating suitable purpose-made arrangements.
Many major inadequacies have been touched upon in this series. A few more will be dealt with in the next instalment.