By Lacille de Silva –
After the UNP came to power, in 1977, with the five sixth majority, two major changes were introduced. The Executive Presidency and proportional representation. Sri Lanka thus became a Socialist Democratic Republic with a mixed parliamentary and presidential form of government. Parliamentary systems the world over consistently feature higher scores of democracy. It provides media freedom, a stronger rule of law, greater constraints on the executive and hence greater checks and balances.
Constitutional expansion by Sri Lankan leaders cannot be considered progressive. Both Constitutions were partisan innovations invented with particular interest to strengthen the hands of governors. The irony is that both had paved the way for the concentration of power in a single institution, without any regard for democratic values and principles.
They disrespect the Constitution, parliamentary conventions and traditions. D.B. Wijetunga, Chandrika Kumaratunga, Mahinda Rajapaksa as Presidents had held the portfolio of Finance Minister. Consequently, the Parliament lost the opportunity to question the Finance Ministers on matters relating to public finances. The Finance Minister is bound by the Constitution to be directly answerable to Parliament. Article 148 says “Parliament shall have full control over public finance”. In addition, Article 151 (2) specifies that the Contingencies Fund has to be under the supervision of both the President and the Minister-in-Charge of Finance. For very long this has not been honoured.
For the last few decades, we have had to undergo increased tensions and unnecessary problems. All due to political, social and economic instability. Strictly speaking, staggering waves of violence, insecurity, crime wave, economic recession, coupled with breaking law and order are the attributes to the problem of woeful governance.
The quest for good leadership is therefore a sine-qua-non for governance and sustainable development. Sri Lanka is the oldest democracy in Asia. Sri Lanka was quoted as a “model democracy” at the time we became independent. How did we fail having enjoyed a post-independence record of unbroken multi-party democracy?
Our leaders failed to build the country on a foundation of firm, unchanging fundamental principles. They were not men of integrity; they did not speak the truth. They did not represent the citizens who elected them. They did not recognize solutions that are good not only for the short term but for the long term as well. They were not visionaries. They lacked the ability to build ‘true consensus building’ in the right direction. Constitutional amendments were introduced for strengthening the government for short-term political expediency.
Let me quote what the Swiss Constitution says “Only those remain free who use their freedom” and “The strength of people is measured by the welfare of the weakest of its members”. Further, it records that the Swiss people and Cantons adopt the Constitution with full consciousness of their common achievements and responsibility towards future generations.
The Swiss Constitution is a rigid Constitution. The process of amendment is specific and complicated. Swiss citizens have gradually improved the Constitution which now describes the basic civil, social and political rights of the Swiss people. They have incorporated a Bill of Rights into the Constitution. It incorporates almost all the rights and freedoms which stand recognized as essential conditions of civilized living and necessary for the enjoyment of the right to life.
Our Parliament is merely a rubber stamp. The concentration of excessive powers was done with Constitutional Amendments. Abolition of the 17th Amendment and replacing it with the 18th removed the restriction for a President to hold office on more than two occasions. Powers of the Elections Commission to issue directions to prevent the use of public property and resources was withdrawn. Private media was made to fall in line with the Elections Commission.
Presidential powers were increased and functions of the presidency strengthened even more. This paved the way for interference with the judiciary and the public service even greater. This clearly indicates the strengthening of the President, which is in conflict with the doctrine of the separation of powers.
It is obvious that the problems of governance primarily began as a result of lack of checks and balances. It all happened in the wake of the promulgation of the two new Constitutions, particularly after the 1978 constitution. Bad politics coupled with the decline in moral and ethical values and lack of professional standards too were other reasons. One major cause for all our social, economic and political ills we face in the country at present is substandard governance.
It is natural where corruption is present, society suffers, justice is denied to the common people, and policies that are favourable to the elite in power are formulated. Regrettably, forty two per cent live below the extreme poverty line. Lack of unwavering leadership is the next reason why corruption is prevalent in all areas of government. This is all due to abuse of power in the management of public funds.
The need has arisen for cogent measures against corruption and building consensus to put the country back on track once again. Our leadership history since the 1970s, was characterized by lack of administrative direction, neglect and insensitivity to the needs of the citizenry by all those who held political positions in the entire Parliament. While the people were suffering under economic hardships and poverty, our leaders were busy working out strategies on how to siphon public funds and hold on to political power endlessly.
The time has come for the Parliament, the President, the Executive, the Judiciary, the Civil Society, the Donors, the Private Sector and even the Citizens to come together at this juncture. The country is starved for Good Governance. It has eight major components: participatory, consensus oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive and follows the rule of law.
The pitiable state of the country could be attributed to egregious leaders and corruption in governance. Clever nations keep changing governments. We too did the same. Unfortunately, we only have politicians who value their pockets in all political parties. After ending the brutal war, we have fallen into a deeper mess. Both successive governments have failed. It is all because the leaders did everything possible to extract the maximum resources from the country rather than to serve the people.
What is democracy? Democracy is a system involving effective competition between political parties for positions of power. Parties should therefore serve as an essential bridge between the Parliament and citizens. Although the parties are not held in high esteem at present, they are critical for the efficient functioning of a democratic Parliament.
Democracy has come out at the top and so far it is the best. In order for a democracy to prosper an effective Parliament is an absolute prerequisite. A democracy cannot exist without a Parliament. Parliament therefore is the most indispensable and unique institution. Parliament deliberate policies, pass legislation and provide the link between government and people. Unfortunately, the citizens do not understand the overall functions of members such as legislation, holding the executive to account as important functions.
In terms of the Soulbury Constitution, the then executive government was all represented in the Parliament. The accountability of all those holding public office to Parliament is the most basic requirement in a democracy. The Parliament is constitutionally empowered to hold the government to account on behalf of the citizens by exercising its oversight function. The parliamentarians have ceased to be effective to hold the governments and the ministers to account.
As such, they have facilitated state capture by the elites who are more interested in opportunities for corruption than in serving the people. They do not take up citizens’ issues for debate and do not represent their constituents. This deformation of democracy creates widespread public cynicism about democracy. Such a situation creates a growing disposition to welcome authoritarian rule.
Currently, the most important issues in the country are the wide-ranging recommendations incorporated in the proposed 20th Amendment. It tells us a great deal about how Mahinda Rajapaksa and his henchmen have visualized Sri Lanka’s future under Sri Lanka Podujana Peramuna (SLPP). How does that happen?
We should conceptualize this scenario as the transformation of their mandate into an unofficially held fragmented power base. They gradually dismantle the state structures, because institutional disintegration expands their private power. The 20th Amendment is good proof as power holders SLPP leaders will never be an ally of state-building projects. Can Gotabaya Rajapaksa put them in their proper place in order to reconstitute the state effectively?
Sri Lankan experience therefore in regard to the overall governance impact of the two governance models – mixed presidentialism and parliamentarism – well worth considering for us to arrive at a suitable decision. Democratic or not – our political system has in practical terms been destroyed. The state structure is too weak to resist undemocratic and disintegrative moves. This presents an intriguing picture of a state that has undergone authoritarian rule under presidentialism.
Constitutionalism and the rule of law have been casualties for several decades. Even with a so called representative governance system, labelled as democratic, weak and corrupt state institutions have become incapable of delivering their legitimate services to the people. The state’s neglect of the political, social and economic rights of citizens, the absence of rule of law have collectively contributed to the near-destruction of the polity and economy. The proposed 20th Amendment is not the panacea for all ills.
What are the main drawbacks in the 20th Amendment:
- To replace the Constitutional Council with a weaker Parliamentary Council consisting of politicians alone;
- To Restore Presidential powers to pre -19th Amendment status;
- To restore President’s power to dissolve Parliament after one year; (This is acceptable);
- To extend limited immunity to the President from legal action;
- To reintroduce the provision to permit urgent bills, for enactment by Parliament, by the President to the Supreme Court and the Supreme Court to give the ruling on its constitutionality within 24 hours to three days;
- To abolish National Audit Commission and Procurement Commission;
- To empower the President to appoint Chairmen of the seven Commissions subject to the approval of the proposed Parliamentary Council;
- To empower President to appoint Chief Justice, Judges of the Supreme Court, President and Judges of the Court of Appeal, Members of the Judicial Commission, other than the Secretary-General of Parliament, Attorney General, Auditor General, and the Parliamentary Commissioner for Administration;
- To reduce the age of a Presidential Candidate back to 30 years;
- To do away with the need to seek the advice of the Prime Minister in making appointments of Cabinet Ministers etc.
- To allow dual citizens to sit in Parliament
A Constitution ‘marries power with justice’. Bertrand Russel had said “Power is the production of intended effects”. Power can be understood both in consensual and conflictual terms – indicating different approaches to the concept. A consensual approach assumes shared interests, which is the best. Hence, elites in power are duty bound to make the operation procedurally predictable, uphold the rule of law, and place limits on the arbitrariness of power.
It should essentially lay the foundation – basic charter of the state’s identity, which plays a key role in representing the ultimate goals and shared values that underpin the state. It should provide a collective vision of how we could arrive at our goal – good society based on the common values and aspirations of the people.
Good governance has become a very rare commodity in Sri Lanka.Peter Dutton Minister of Home Affairs in Australia had said “Parliament is about checks and balances. And to ignore or minimise the Parliament is a shortcut to tyranny. Parliament was created to provide alternative voices, differing views, and establish the rule about how the political game should be played.
The Constitution requires that the government needs to be responsive to citizens and that it should operate responsibly. A democracy needs to be strengthened through democratic institutions. Democracies cannot be imposed from the outside; it must be embraced by the leadership and the citizens and supported and protected by fully functional institutions.
In order for us to achieve our common goals, we need an effective Parliament that should shape policies and laws to respond to the needs of citizens. Parliament should therefore commit itself to achieve economic growth and sustainable and equitable development. Parliament provides the link between the concerns of the people and those that govern.
It is the forum where all elected representatives are required to committedly focus on “national political debate” and articulate “public opinion” in a manner to provide useful guidance to the government in developing complex policy matters. It appears that owing to very many reasons our institutions have failed. Our leaders were short of even practical wisdom. Sadly, they lacked the ability to reason out in judging matters to understand what is right and wrong.
The Parliament is therefore the key institution, which should help the government to be accountable, capably and responsibly in the interest of the citizens. Parliament for decades had performed a rubber stamp function. Government does not take Parliament seriously. The Parliament is in the habit of pushing everything through the normal process and rubber stamping. Previous governments have accordingly disregarded basic basic principles of democratic governance.
In Parliament, all they do is treat the symptoms, but not the causes. The Speaker Mahinda Yapa Abeywardena had told a leading English daily that the Attorney General cannot stop Sri Lanka Podujana Peramuna (SLPP) Ratnapura district MP-elect Premalal Jayasekera taking oaths as MP since he has been elected by the people.
He had added that not allowing Jayasekera would be tantamount to violating people’s sovereignty. He had also stressed that he, as the Speaker, is bound to protect the people’s sovereignty. Article 3 states – “Sovereignty is in the people and is inalienable. Sovereignty includes the powers of government..”. Article 4 (c) says “the judicial power of the People, shall be exercised by the Parliament through courts”.
The core responsibilities of the Parliament and the judicial branches, such as courts are well defined. The Attorney General is the Chief Legal Adviser to the Government. AG’s duty is to enforce laws enacted by Parliament. Shouldn’t the Speaker honour the boundaries of responsibility by maintaining an ethic of mutual respect. The core function of the Parliament is to enact laws. The core function of the judiciary is to enforce the laws. Article 12 (1) requires that “all persons are equal before the law”.
This no doubt needs to be respected by the Speaker in the name of rule of law. The Speaker may peruse the – The Code of Conduct for Members of Parliament too to review his decision in this connection. The Speaker is required to abandon partisan politics and must be independent. He should be free from political influence and is also duty bound to uphold constitutional practices in the name of constitutional morality.
It is time the Parliament recreate new provisions to deconstruct the economy of extraction. Parliament should reconstruct one of deliverance. Parliament should invest in the collaborative provision of care-based ethics. The Golden Rule should be“do unto others as you would have them do unto you”.
If so, what do we need to do now? Why do citizens become disillusioned with democratic governance? Globally, there is free flow of information at present. Power that originates from the top is losing its edge. The communications revolution has exposed corrupt authoritarian political power bases which benefits only a handful of them. Citizens have become more active and reflective than in the past. It is these very developments that are at the core producing dissatisfaction in our long established democracy. We need sweeping changes to restore good governance. We, therefore, demand openness, legitimacy, accountability, transparency, ethics – to repeat – good governance.
All that we need to do is strengthen democratic parliamentary governance. Professor Anthony Giddens had said “What is needed in the democratic countries is a deepening of democracy itself. I shall call this democratising democracy. But democracy today must also become transnational. We need to democratise above the level of the nation. A globalising era demands global responses, and this applies to politics as any other area.”
Giddens had added “The democratising of democracy also depends upon the fostering of a strong civic culture”. He had also said “A well-functioning democracy has been aptly compared to a three-legged stool. Government, the economy, and civil society need to be in balance. If one dominates over the others, unfortunate consequences follow”.
The new Speaker should insist on making good use of imperative virtue ethics in Parliament. It is the best remedy for all ills pervading the country including Parliament. All elected representatives irrespective of party politics should be requested to be patient, be kind, be compassionate, be courageous and be better equipped as individuals to negotiate the obstacles of the moral life.
The Speaker must request all parliamentarians to be moral so as to become better persons and in order to be better examples to the rest of the country from now onwards. In addition, the parliamentary performance is dependent on the organizational capacity of Parliament including the strengths and weaknesses of the political and administrative competence of persons involved. An internationally accepted performance measurement criteria is given below:
- Financial – Does Parliament operate according to acceptable standards of financial administration? This is an important matter if Parliament is to stake its claim to being an important institution for ensuring government accountability.
- Compliance – Does Parliament operate according to the laws of the land and its own rules and procedures? This criterion speaks to the performance of Parliament in upholding rule of law, one of the fundamental governance values.
- Efficiency – Does Parliament organize itself and carry out activities in ways that are reasonably efficient and dependable? Where this is not the case, the wider society, not to mention the executive will dismiss Parliament as chaotic and irrelevant.
- Effectiveness – Does Parliament make a difference? Does it have an impact on government and society? One of the commonest criticisms of even the most efficient Parliaments is that they are becoming steadily more marginalized in the decision making process of government.
- Relevance – Does Parliament make the right difference? Does it tackle and influence the important decisions? This criterion goes to the issue of whether Parliament connects to the great issues of the day.
- Sustainability – Is Parliament on the rise or in decline?Does it have the resources, political and otherwise, to play its part in promoting good governance? These questions are meant to probe the history of the institution as well as its prospects for the future
My thirty six years in Parliament, now tells me that the Parliament at present is weak, inefficient and in need of radical improvements. Parliament needs to identify deficiencies in the government machinery, particularly because due to neglect, all government agencies are at an all-time-low. The need of the hour is to understand the unequal power sharing among the three main organs of the State – the Parliament, the Executive and the Judiciary. Let us not promote the 20th Amendment since there is a better word we could achieve without it.