By Lacille de Silva –

Lacille de Silva

The Donoughmore Constitution was introduced in 1931 in Sri Lanka establishing the origins of the Westminster parliamentary model. This enabled the citizens to elect their representatives at regular elections to run governance on their behalf, having granted universal suffrage. Ours is, therefore, the oldest democracy in Asia, which laid the foundation for parliamentary government. At that time, it consisted of three pillars, namely: the legislature, executive and judiciary. The legislature then consisted of two Houses, including the Senate. Presently, we have four pillars, which are known as Independent Commissions and Regulatory authorities.

Based on the doctrine of separation of powers, these four branches, the legislature, the Judiciary, the Executive, the independent regulatory oversight commissions, being the principal institutions of the state requires to be clearly separated from each other. The sole objective of this principle is to ensure that there is no conflict with those of the other branches. John Locke, a forerunner to Montesquieu had defined that the legislature cannot govern arbitrarily and cannot levy taxes or confiscate property without the consent of the governed. This was a clear indication that each institution should have independent, equal powers and responsibilities so that the powers of one branch are not in conflict with those of other branches.   

Montesquieu, the French social commentator, lawyer and political thinker in 1748 had also added that – “When the legislative and executive powers are united in the same person, or the same body of magistrates, there can be no liberty…there is no liberty if the power of judging is not separated from the legislative and executive..…there would be an end to everything if the same man or the same body… were to exercise those three powers”. 

It has been emphasised that according to the strict separation of powers, none of the three branches may exercise the power of the other, nor should any person be a member of any two of the branches”. This conclusion appears to have been reached by Montesquieu since the Roman Republic had powers separated so that none could usurp the other. Montesquieu argued in his book “The Spirit of Laws”, pages 151 – 52, I quote – “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner”.

In Sri Lanka, it could, therefore, be seen that there is no liberty, since the judiciary and administrative power has NOT  been separated from the legislature/executive, together with an all-powerful executive, the President at the helm, who is a law unto himself. All these have been en-joined and strengthened with constitutional force in a crafty manner, due to which the life, liberty, the freedom of the subjects have been rudely exposed to arbitrary control. Montesquieu had also written, “Judge would then be the legislator”. He had further added ”Were it joined to the executive power, the judge might behave with violence and oppression”. 

Prior to 1972 almost all including the Civil Servants, the the judicial officers, etc  were appointed purely on merit and on the basis of fair, transparent, open competition by the then Administrative  Services and Judicial Services Commissions. (All these are now handled by corrupt politicians and that is the root cause of all the problems). These two Commissions had been totally independent institutions. There had been no political interferences whatsoever and hence,  all of them in their respective services occupied a unique position. 

And they were bound up with proper accountability practices, including strong parliamentary accountability, underpinned by higher standards of ethicality and integrity in the Civil service, the judiciary and all other agencies of government, and the government itself. 

Subsequently, the governance processes, including recruitment, at all levels have now been politicised. Such a country has now become unjust, hard, non-transparent, unresponsive, and unaccountable which has finally led to a reprehensible outflow of issues such as corruption, intense politicization, abuse of power, poor service delivery etc. The governance structure, therefore, needs overall reforms without delay to strengthen citizens’ rights. 

Bearing in mind the destruction caused to our motherland by every elected government, it is our earnest hope and expectation that all ordinary citizens, civil society members, and business leaders should unite under one umbrella to establish and deliver higher standards of ethicality and integrity, in the judiciary, administrative service, in all political parties for a better – focussed governance model where we want to see corrupt practices and systems of the past.  

Our politicians have miserably failed. They can no longer deliver positive political goods to the people. Their corrupt, inefficient, and inhumane government has lost legitimacy and there is growing anger and hatred in every nook and corner in the country against the corrupt governance system. 

We should now say enough is enough and we now have to internalise ethics, morality, accountability, transparency etc., and establish an ‘ETHICAL CULTURE’ in the country, which supports professional responsibility, self-discipline, and the rule of law. It is time as citizens we come forward to strengthen the ethical competence of judicial officers, administrative officers, and politicians including political parties to support “professional ethics” to institutionalise new techniques for strengthening ethically competent decision-making, disinterested advice to government, and ultimately an ‘ethical culture’, which supports professional responsibility, self-discipline which will eventually pave the way for a country which supports only rule of law.

In conclusion, let me add, standards of living in my beloved motherland are fast deteriorating, particularly because the greed of our corrupt rulers overwhelm their responsibilities to better their citizens and their surroundings. And they have not stopped pillaging to-date. For the rulers, from the President downwards in Sri Lanka, GOVERNANCE, MEANS PILLAGING.