Colombo Telegraph

Chief Justice Appointment Is A Serious Mistake

Chief Justice Appointment Is A Serious Mistake: LSSP, Constitutional Crisis And The Mahinda’s Promises 

By Tissa Vitarana –

Dr Tissa Vitarana

The Lanka SamaSamaja Party was established with the Suriyamal Movement 77 years ago, on 18 December, 1935, under the leadership of N M Perera, Colvin R de Silva, Philip Gunewardena and S A Wickremasinghe, to continue the anti-imperialist struggle and win complete independence from British rule. Our leaders like N M, Colvin, Philip, Edmund and Bernard were jailed both here and after they escaped from jail, in India. The partial independence gained in 1948 was completed in 1972 through the Republican Constitution, drafted by Colvin R de Silva, which conferred sovereignty on the people of Sri Lanka for the first time in our history. The struggle that the LSSP began for its other major objectives, that of social justice and a socialist society continues. Some of its demands such as workers’ rights, free education and health care, and nationalization of key sectors have been successfully achieved.

After gaining independence, the LSSP wanted all sections of society to participate in the struggle to achieve the bourgeois democratic tasks of the national revolution. But when the Sinhala Buddhist,” Pancha Maha Balavegaya”, emerged as a force under the leadership of S W R D Bandaranaike, after N M had declined to lead it, the LSSP and CP helped the SLFP to defeat the local agent of Imperialism, the UNP, and captured power in 1956. The anti-imperialist and anti-capitalist programme of the Left has been achieved thereafter by this Centre-left Alliance, particularly during the SLFP, LSSP, CP Coalition Government of 1970-75. But the momentum was lost after the UNP began its 17 year rule from 1977 and forced the reactionary 1978 Constitution on the country to facilitate direct neo-liberal exploitation by imperialism. In this role the UNP abandoned both major tasks of the nationa’ bourgeois democratic revolution, the building of national unity and the development of the economy in the national interest.

After the defeat of the UNP in 1994, under the PA Government the emphasis was on building national unity and good progress was made but without real success. Under the UPFA Government the military defeat of the LTTE in 2009 has paved the way for achieving national unity, but regrettably progress has been poor. But an effort is being made to achieve rapid economic development and with this Budget the adoption of the East Asian model became evident. The fact that this model is being adopted both by capitalist countries like Japan, South Korea, Singapore and Malaysia, and by socialist countries like China and Vietnam, make it acceptable to the LSSP as well. But as we have been stressing, the secret of their success has been the increase of export earnings by increasing the proportion of Hi Tech products in their exports through the use of advanced technology (Japan 85%, South Korea 70%, Singapore 60%, Malaysia 50%) but in the case of Sri Lanka it is only 1.5%. While the Government has maintained economic stability and reasonably good growth despite the global economic crisis, the outcome has been rapidly increasing foreign debt due to the adverse balance of trade. We must not pass the debt burden to our children. The adverse balance of trade which has led to an increased foreign debt burden should be reduced further by cutting the cost of imports by increasing the duty on all luxuries.

But the LSSP demand is that the burden of development must be placed on the rich, by increasing the upper limit of direct taxation from 24% to 45%, and not on the poor, by removing all indirect taxes on essential items like milk powder, dhal, sugar, dried fish and kerosene. The devaluation of the rupee adds further to the cost of all imports. The benefits of development must not only go to the rich. In the context of the increasing cost of living, salaries must be increased proportionately in both the government and private sectors, unless policies are instituted to bring down the cost of living. Economic development is not possible without good governance. The breakdown of governance and increased corruption must be dealt with firmly and effectively, particularly now that impeachment action is being taken against the Chief Justice. Public sector waste must be sharply curtailed.

We were all hoping that after the defeat of LTTE terrorism and the country was re-united, that all Sri Lankans would come together as one Sri Lankan nation, free of racial, religious and caste prejudice. But this has not happened. Like the economic, oil, food, and climate crises which have deepened worldwide, Sri Lanka too is facing many crises, chief of which is that affecting governance and democracy itself. The roots of the crisis go back to the “shoddily drafted” 1978 Constitution, full of contradictions and anti-democratic features, as N M points out in his “Critical Analysis”. In the 1972 Constitution the people elected a representative on an electorate basis to exercise their sovereignty in Parliament. Parliament as a single body formed a Cabinet headed by a Prime Minister, and through it exercised Legislative, Executive and Judicial power.

In the 1978 Constitution the exercise of the people’s sovereignty was divided, being split between Parliament and an Executive President. The President controlled the Cabinet, which prepared legislation, by presiding over it but was not answerable to Parliament, even for the unlimited number of ministries that he could head. The President appoints the Secretaries to the Ministries, the Public Service Commission and other Commissions, thereby effectively controlling the entire Public Service. The President appoints the Chief Justice, the President of the Court of Appeal and the Judicial Service Commission, thereby controlling the Judiciary as well. The President controls the Armed Forces. Parliament has control of finances by the fact that it has to pass the Budget, but as Finance Minister this is also prepared by officials controlled by the President. Thus under the 1978 Constitution nearly all power is concentrated in one individual the Executive President. Though there is provision for the people to decide on important Bills through a Referendum, this has been exercised only once and that was by J R Jayewardene to extend his Government’s term in office, avoiding an election. Effectively the people can intervene only at the next Presidential Election. In the alternative Parliament can impeach the President by a 2/3 majority. Thus all power is highly centralized in one individual.

The 13th  Amendment, by setting up the Provincial Councils, thereby devolving power away from Colombo and closer to the people, helped to mitigate the anti-democratic content of the 1978 Constitution. But it is disturbing that there are anti-democratic moves being suggested to undo the good work by dissolving the Provincial Councils and abrogating the 13th Amendment. The LSSP and the Socialist Alliance are strongly opposed to any such move. I am glad that about 30 government parliamentarians, including many Ministers and Party Leaders, have joined us to oppose any such ant-democratic move.

The claim that the Provincial Council system was an Indian imposition is completely false. Since the time of S W R D Bandaranaike in 1926, when he favoured Regional Councils in a federal set up, the issue of the unit of devolution has been debated. Some favoured the province as the unit and others the district, and when the Indo-Sri Lanka accord was signed, opinion had shifted towards the province as the unit. It is also claimed that the Provincial Councils (PCs) are a white elephant, a waste of public funds. But the reality is that only 7.5% of all Government expenditure is channelled through the PCs, and much of it is for salaries and other expenses in connection with schools and hospitals etc. which would have to be met even if there were no provincial councils. Well below one per cent of the money goes for expenses related to politicians. The extensive infrastructural development to benefit the people is a direct outcome of the PCs. The alternative suggested is the District Council as the unit, but besides not being economically viable, it would increase the expenditure as there are 25 of them. The real objective is to put an end to empowering the people, through the PCs, then through local bodies and finally down to the village councils: so that all decisions can be taken in Colombo.

But it is through the PCs, LBs and VCs that we can empower people so that they can do their own development activities, thereby overcoming corruption and integrating them within one country so that they will never want to separate. In fact in 1987 with the formation of the PCs all the Tamil militant groups that took up arms against the Government laid them down and entered the democratic stream, except the LTTE. If we do away with PCs now we will be sending the wrong message not only to the Tamil, but also the Sinhala and Muslim, youth. The LTTE lobby here and abroad and the U.S. led conspiracy in Geneva will be given ammunition to attack us.

When decisions are made by one person, however brilliant he may be, mistakes, even serious mistakes, can be made, e.g the Chief Justice appointment. When power is concentrated in one person, abuse of power can readily occur. It is said that “power corrupts, and absolute power corrupts absolutely”. But if the person elected at the next Presidential election is someone who has a military background, like Fonseka, the danger of a military dictatorship, which exists even now, will be greatly increased. Therefore the sooner the Executive Presidency is done away with and we return to a Parliamentary system based on the 1972 Constitution, suitably modified, and with a mixed electoral system, the better it will be for the country and for future generations. Those who promise to do this after the next election cannot be trusted to do so once they acquire this tremendous power. We call upon the present President to do what he promised in the Mahinda Chinthanaya.

*Dr Tissa Vitarana – Senior Minister of Technology and Research and the leader of the LSSP

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