25 May, 2019

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A Calamity Of Constitutional Crises

By Lucien Rajakarunanayake

Lucien Rajakarunanayake

We are going through a period of major tragedy with the blood of innocents, due to a massive failure in governance. Months away from the Presidential Election, and not too far from the next General Election, there is no serious discussion of the constitutional and legislative changes needed to face up to the rising trends of Islamic terrorism and the need to deepen democracy in the country.

Political parties and civil society organizations with commitment to democracy, must initiate a public debate on urgent constitutional and legislative changes required to face the new political reality, beyond separatist terrorism defeated a decade ago. The major constitutional changes proposed by the ‘Yahapalana Government’ have hardly been carried out. We only have the 19th Amendment, which is very useful, but limited in scope considering the major changes needed.  

The past four years saw the absence of political commitment to widen and deepen democracy, strengthen Human Rights and strengthen the Rule of Law. The Constitutional Assembly presented an initial draft constitution. It is stuck there for want of political allegiance by the President and Prime Minister, ignoring the Common Programme presented to the people. 

The tragedy of today is largely due to constitutional and legislative failures of this country. We suffer the faults of the first Republican Constitution of 1972 – Sirimavo Bandaranaike/Dr. Colvin R de Silva, and the next Republican Constitution of 1978 – JR Jayewardene. This article shows two major examples of related failures in the context of governance and the search for national leadership. These have contributed to the tragedy of today, with the rise of Islamic terrorism and the shocking failure in political leadership in both government and opposition. Let’s first look at the issue of the Office of the President and the Defence/Secretary.

Hemasiri Fernando, former Defence/Secretary, is deservedly whipped for his entirely wrong and dangerous inaction on the information received about the planned Islamist terrorist attacks on Easter Sunday. His failure to bring this to the notice of the President, and the Prime Minister when the President was abroad, and failure (along with other key officials) to attend a meeting on national security called by the Prime Minister, shows the dangerous effect of political divisions between the President and Prime Minster affecting the substance of governance; especially in the context of national security, and how such divisions influence the thinking of key administrative personnel.

Although Hemasiri Fernando is correctly blamed for what is seen as an administrative disaster, the actual cause of this crisis remains with the changes in the administrative structure of the country brought about by the first Republican Constitution of 1972. 

Take the office of Defence/Secretary. How is a person who has no knowledge or experience in Public Administration selected to hold a key office as Defence/Secretary? Hemasiri Fernando was the chairman of a State Bank, head of the National Olympic Committee or many years, an officer of the Sri Lanka Navy, and a writer of several books, with good knowledge of the Sri Lanka Railway. Did any of this give him the experience and, capability to hold and manage one of the most important offices in the country’s governance? No, they did not. His holding such a position came from personal association with the Minister concerned, the President – being the Minister of Defence and the Commander-in-Chief of the country. In making this appointment, President Sirisena has followed the current trend in the administrative process, which pays little heed to experience and capability.

This is clearly the result of doing away with the Civil Service and replacing it with the Administrative Service, enabling politicians to appoint persons with no administrative experience to key positions in government. Hemasiri Fernando was the fourth person to hold this office under the current president. He is (or was) also the Chief of Staff of the President’s Office. Through the decades since the Civil Service was done away with, this country has seen a continuing increase in political appointments to key positions in government, especially secretaries to ministries, making the relevant ministries and departments stuffing holes for political catchers. 

This trend continued from the Sirimavo Bandaranaike presidency, much more in the JR Jayewardene presidency, and through the presidencies of all others who followed, with family membership and relationship, friendship and political connexion being the reason for the selection of persons to positions of importance in governance. The Hemasiri Fernando situation is the pit of disaster that the current Administrative Service with its political ramifications has brought the country to. 

The abolition of the Civil Service has seen the steady decline in the administrative capabilities of key officers, and the rise in corruption and favouritism in the entire process of governance.  The failures in the current presidency, such as the former Chief of Staff now charged with bribery and corruption, and even the initially considered replacement to this position, shows the threat of this system, with no heed to experience and competition, to both governance and society.

 Beyond the Maithripala Sirisena/Hemasiri Fernando disaster, we must also try to understand why the key police personnel informed of the threat of the Islamic terror attack by India, did not (if they did not, as publicly said by President and PM) bring this danger to the notice of all required persons in governance. Were they more concerned with the political rivalry of the leaders of government, or were they wholly ignorant of the nature of the threat they were informed about? Is it not a clear example of the ramification of politics into the process of administration, increasingly threatening the proper functioning of government?  

Apart from politicised administrators, what of the politicians themselves, many of whom were aware of the spread of Islamic radicalisation, associated with rabid Islamization in the Middle East, through the past two years or more? Were the largely Muslim politicians, and political leaders of their community, wholly ignorant of trends in Islamization? Or, were they only interested in the profits of politics and the pervading corruption that has become the keywords in today’s governance? Does this also not raise the questions about the effect of community related political parties that move away from wider national politics?

Just like the President and Prime Minister saying they did not know or were not informed, they too are kicking the same escape phrases in the politics of ignorance. Of course this cannot be shown as a wholly minority approach. They are with the majority of politicians, of every colour, symbol or slogan. The politics of the corrupt!

While the appointment of Hemasiri Fernando to this key office remains the focus of attention, it is certainly not the only administrative failure. The problem is the absence of a proper criterion for the selection of a person to such a post. Is retirement in a key office of administration or the security forces a proper or only criterion for such selection? Do former commanders of the forces, after many years in retirement, become the ideal choice and how?

The need is for complete change in the system of senior administration in the country, with the necessary constitutional and legislative changes, bringing back the principles and values of the old Civil Service, and the relevant trends in modern democracies. 

Search for Leaders

Today’s major issue of a lack of proper political leadership in the country, especially future leadership, is due to the 1978 – JR Jayewardene Constitution.

The Easter Sunday tragedy highlights the major defects in the country’s constitutional structure, and suggests even looking at the benefits of Soulbury, against Colvin R de Silva and JR Jayewardene.

Today’s absence of good political leadership is largely due to the abolition of the electorate based representation in Parliament (and other electoral bodies) with the District Representation system. Under the old system the voters knew who they chose from their electorates, being persons who had direct association with the voters and their needs and goals, both social and political. What we now have is a system where MPs are elected from whole districts, often with no relationship with a particular electorate, and mush less with the voters. It is system that engenders large scale corruption, due to the huge expenses in district-led campaigning. The rise in the cost of contesting the polls has led to honest political personalities with a commitment to service, to keep away from the polls. The result is the promotion of the family members of current representatives to move into the district system, keeping out those dedicated to service. This is clearly seen in the increasing number of family members of current elected politicians taking to the polls, with no records of leadership or commitment to service. This also increases the impact of caste and other ‘popularity’ factors, than a political programme with loyalty to service. 

The continuance of this system will give no room to the rise of good political leadership in the country. This is seen very clearly in the current national leadership crisis. The UNP has a leader who remains through party manipulation for nearly three decades. The leadership contest within the party is not one of democratic acceptance. The SLFP has a leader come through a constitutional twist brought by the former leader to serve him – whoever is elected President of the country, shall be the party leader. It served the successor who defeated him nationally representing anti-SLFP forces, with no democratic choice within the party. The SLPP or Pohottuva is still uncertain of its formal leadership, and shows the full impact of family politics in leadership and presidential candidacy.

The leadership trends seen in the minority parties – the TNA and the Muslim parties also show the problems that flow from the District Electorate system, as against the former Electorate System. The situation is made worse by reducing the number of votes obtained for election from a district to 5.5% – which only serves narrow sectarian forces, and not a wider population.

What is urgently needed is to move back to the pre-1978 electoral system, with election from electorates and not districts. It was a system that produced leaders in the country, from all political parties, and also saw the replacement of MPs through by-elections. What we now have is a whole mockery of democracy, with those who are elected from a district, but not having enough seats, being the replacements for those who depart through death or expulsion – but hardly ever through resignation, unless for a crooked political promotion.  

The necessary change in bringing back Electoral Representation is to do away with the First-Past – the Post (FPP) system, which goes against the majority of voters. The person elected should have over 50 per cent of the votes cast in the election, which is a true majority. E.g.: Under old FPP, in an electorate with 100,000 voters and eight candidates – the person who wins may get 25,000 votes, and the balance 75,000 votes would be divided among the seven rivals. That is not a majority selection.

We should look at the French system, also followed in other European countries, of an election in two rounds. In the first round the candidate who gets more than 50% of votes cast is elected. In the absence of such a count, the next round will only have those who came 1st and 2nd in the earlier round. This would definitely give an over 50% majority to the winner.

Moving to such a system, with emphasis on the Electorate and not the District, will certainly help in building both regional and national leadership.   We must also note that the original minimum of 12.5% of votes for a member to be elected from a district, was reduced to 5.5 % on a call by the founder/leader of the Muslim Congress MHM Ashraff, (during President Premadasa) which has led to the election of small group leaders, especially from the Muslim community, leading to questions about their actual leadership of the community. A proper system of national elections would contribute to the strengthening of democracy, and moving away from sectarianism.

It will also be useful to learn from other democracies and prohibit cross-overs from a political party one is elected, to a rival party, without such a change being endorsed in a by-election. This too was a good tradition we had in the past.

The current socio-political crisis in the post-Easter Sunday tragedy, calls for studies of the prevailing faults in governance, through constitutions that gave more importance to party political gain than the principles of democracy. We are reaping a harvest of growing political humbug, leading to a negation of the democratic process, where the benefits of crooked politics outweigh the values of democracy and good governance.

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Latest comments

  • 9
    0

    Lucien you have dated the problem back to 1978 , when constitution was gang raped by JRJ and his cohorts. (I think it is further back to the time of our independence). Can you please inform this to Rajeewa the expert who believes this whole issue originated only after 2014 when Rajapaksas went out of business. Breakdown in our civil services was exacerbated by Rajapaksas who,s only criteria (but compulsory) was total submission. We well know the fate of ex CJ Shiranthi who decided not to toe the line.During JRJ time they send goons and vandalized then CJ Nevile.S but Rajapaksas went further in sending Shiranthi home.

    • 3
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      Didn’t know Shiranthi was also the CJ. Quite possible of course!!

    • 2
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      Chiv
      You are absolutely correct it is going back since our independence, may be those who were in power at that time thought independence means if they have do what they can
      Those inexperience politicians took the law in their hand with the blessings of the theroes ruined the country to the ground.

    • 3
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      Lucien Rajakarunanayaka,

      The British, in their democratic parliamentary tradition, spanning centuries, handed over democracy to Ceylon, populated by the Paras mainly from India who claimed a 2,500 year old civilization, that was hijacked by the Monks, Priests and Ulama, and finally by the Satan following Wahhabis, per prescient Hadith of Najd, an Islamic Source, and we now have Satanic-Islamic terrorism.

      The terrorists claim they are Islamic and others claim that they are Satanic, and it has become an ideological war, spilling into terrorism.

      However, before that the Sri Lankan Muslims were Sufis, Suni, Shia, Ahmedia etc.
      After independence, the Sri Lankan State, dominated by the Para-Sinhala, carried our discrimination and terrorism against the Estate Tamils, 1950, the Sri Lankan Tamils, 1958,1977, 1983, 1983-2009, Muslims, 2009-2019, Christians, 2009-2019 etc.

      This was all under democracy.

      This was all due to the failure of law and order, disregard for citizens rights, discrimination against a section of the citizens, who do not belong to the najority Para-Sinhala “Buddhist “ community.
      So what we have is majoritarian Democratic dictatorship, that marginalized the minorities.

      Remember, the LTTE terrorism and the do-called “Islamic”, rather Iblisic Terrorism were, mostly or partly nurtured by the disregard by the state for law and order and minority rights.

      Of course, the external Satan, Iblis following Wahhabies and their petrodollars played a significant role, as well as India supporting LTTE initially.

    • 3
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      Chiv is only partly correct! But, there are many other shortcomings in the lengthy essay.
      I think that Lucien is trying to save MY 3 & & his trusted Intel Chief Nilantha Jayawardena or else, he has not paid any attention to the difference between normal system of chain of command within the Defense ministry & the actual operation under MY 3. It is true that, under a normal system, all the security related matters pass through the Def Sec to the president to be discussed in security counsel to make decisions on necessary action and to follow up as necessary.
      But, MY 3 has dismantled this normal system completely and, instead, has stopped having security counsel meetings since last Dec and has established a system of dealing with security related matters only with Intel chief bypassing even the Def Sec. Therefore, in this situation blaming Hemasiry cannot be “rightly deserved” at all. May be the current constitution doesn’t specify how the president should organize the chain of command but, if the president understood the importance of a properly operating national security system, a lack of constitutional constrain could have been used an opportunity to appoint the best security brains in the country. Instead, it is very clear that MY 3 put the biggest priority on loyalty than on national security – a bad lesson he learned from the previous Gvt! I believe that hemasiri is also a victim of MY 3′ incompetence. For whatever reason, Lucien has failed to notice this point.
      There have been countless opinions expressed on the “good, the bad and ugly” aspects of the proportional system but I don’t think that it stand as a barrier to produce good leaders. The pre-78 system also had similar weaknesses. For example, DSS wanted his son be the next leader thereby forcing SWRD to form a new party.

  • 4
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    I think you completely got it wrong in terms of the secretary Defence functionalities, Secretary
    is the chief accounting officer of any ministry. Even though Secretary Defence is part of the ORG structure of the security apparatus of MOD he has no
    Power to take decisions other than Admin and Finance related matters. This calamity happened due to the dysfunctional way of governance by the Sri Lankan polity. Of course the sequence of event after President Sirisena was instilled as the first citizen of the country has made a mockery of governance. it’s easy to
    Find a scapegoat and not look at the root cause of this issue. As you quite rightly mentioned this is a political issue. In my opinion 225 members of parliament should
    Be blamed including the president for taking a lackadaisical approach on National Security. You can’t compromise national security and put the blame on two people for the whole mess. Without knowing the true facts accusing a person by tagging his name is deplorable.

  • 2
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    Nonsense

  • 3
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    This is for the beginners. Lets keep things simple and easy to understand the issue in hand and how to deal in an appropriate manner. Right now we can see first hand how New Zealand is dealing with the tragedy and then you compare that with Lanka. A country which is known for natural disasters but not terrorist strikes in the aftermath came together united together in supporting the victims and taking meaningful steps in addressing the problem. In Lanka we have leaders lying, accusing blatantly each other, leaving the victims with more questions than answers, politicians exploiting the tragedy to turn into votes and a divided public and media actively spreading hatred and violence. The external factors like US,China, Saudi,ISIS, UN ,Trump —–etc are mostly beyond our control. What is in our control are the internal factors that is our politicians, security, taking appropriate steps, transparent investigations, not divided but united public —-etc. It is obvious we do do have any control neither on internal or external factors. . And what else can be worse, when our own politicians are out there exploiting with intentions of making things worse.Public is in denial busy taking sides and pointing finger at each other. Peace is not a reality as long genuine reconciliation are (just a) daydream.

  • 0
    0

    Lucina Rajakarunanayake is right. Yet French system do not work. Think after the second round Maithripala sirisena becomes the President and Ranil or any other ambitious cut throat politician the vice president or PM. they won’t allow the parliament to run.
    Besides, there is a big problem of Sri lanka being a country in the middle of the Indian OCean. Sri lanka became part of the String of Pearls concept and Sri lanka is using lot of money these days in billions of dollars. No one is talking where that money goes. that is why we have to get loans.

    • 0
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      I am sorry, Sri lanka is losing lot of money these days Sri lankan’s annual revenue is over $ 18 billion..

  • 1
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    Lucien Rajanayake,
    Thanks for this article where you have highlighted the weaknesses of the constitutional changes that allowed politicising the administrative system that happened since Srilankans took over the power from British. I don’t think any other country in this region had continued suffering of the people and bloodbath within the past seven decades. There is something wrong with our people and their attitudes. It is the first country that is proud of welcoming ISIS terrorism to this land. Most of the politicians including the President, Prime Minister, Opposition leader all of them are happy about inviting ISIS to this island. We have now the opportunity to cover up all our national issues such as corruption, political coups, violation of constitution, drugs and drugs leaders, war crimes, human rights violation etc.c. because we have got international terrorism. Candidates will promise us to eradicate ISIS within 30 days of coming power and they will celebrate victory with Kiribath. Our people are ready for another episode.

  • 2
    1

    Lucien Rajakarunanayake
    9 Comments
    A Calamity Of Constitutional Crises

    Lucien Rajakarunanayake’s article is another one of hundreds recycling vertical thoughts. His intentions are clear in paragraph 1 “………..to face up to the rising trends of Islamic terrorism and the need to deepen democracy in the country”.
    Lucian must go back a bit more when language-divide was introduced. this grew into the unruly language/religion-divide. Politicians exploited the ‘divide’ to accumulate personal wealth while layLankans grew poorer.
    It there “A Calamity Of Constitutional Crises”.
    If constitutional changes are made to benefit individuals, ‘crisis’ has to follow.
    .
    Will reverting to Westminster system help? No, if we look for a permanent solution.

  • 1
    0

    In my opinion , if as nation we are looking for answers the the place to begin is by asking ” Did MS had any knowledge what so ever , about the threat ,prior to the first explosion on that fateful day. With that comes the question “Is he lying to public”??? Please do not repeat what MS is saying because all the evidences and facts are against him. He does not have any alibi or shred of evidence to support his accusation.Just because he is president does not mean his answers are holy. There are enough evidence to show he has lied in past as president. Obviously as expected he is also contradicting his own answers. Look at one of his statement made to press. “On the day of new year, they both (Pujitha and Hemasiri) visited me with betel leaves to wish and seek blessings and even then they did not tell me about this”. Just read the answer a few times and it is obvious he is lying. The question I will have for MS is have they kept such information from him in past ????? (it is MS who kept RW away) .If NO then why now???? Past history reveals from the time MS started vying for presidency he had been lying, giving false promises, bringing in his family members into government, covering others corruptions, lied about the threat to his life,lied to the nation about his constitutional coup —–list is endless. If the answer is YES, he knew and lied then the accountability should start from there. When a president of a country is lying and had been involved in murders, finding scapegoats or others to take responsibility,inquiry commissions and rest of the empty talk , are nothing but typical Lankan BS.

  • 0
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    Not to do constitutional changes.

    To undo constitutional changes; vital to save the country from further chaos.

    Back to pre-78 please.

  • 0
    0

    Good People; read and re-read this article by Mr Rajakarunanayake.

    When he writes. . . What we now have is a whole mockery of democracy. . . read what we now have is a bastardised, fucked-up version of what a proper democracy should be. Even more, what we have are political leaders who sanction the nomination of ‘YES’ men whose main purpose in politics is not to ‘serve the nation’ but personal enrichment. Decent people throughout the land must rise with one voice and tell these leaders in no uncertain terms that the game is up. Step forward the hitherto silent army of competent men and women who can fill the vacuum.
    Your country needs you; NOW!

  • 0
    0

    Spring Koha , In my opinion we (the decent people ) are just a few. . The majority seems very happy, in total submission and keep praising their masters. “Hallelujah, Hallelujah—-“

  • 0
    0

    Dear Sir

    The fundamental problem with our democracy captured very well.

    “Under the old system the voters knew who they chose from their electorates, being persons who had direct association with the voters and their needs and goals, both social and political”.

    No Presidential position, PM and fewer MP’s with even fewer ministries will enhance all else was said above. The last LG elections we elected some 9000+ candidates in Sri Lankan terms will mean 90000+ separate ‘kingdoms’……….not a good idea…..nor is evolutionary…………then we wonder why we have so much of problems????

    “A proper system of national elections would contribute to the strengthening of democracy, and moving away from sectarianism”……………..for this too happen we need to complement the Constitution with banning all the Identity Political Parties immediately. This should be the priority for the Constitutional assembly??

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