By Lacille De Silva –

Lacille de Silva

Our representative democracy and bureaucratic organizations need vast changes. Both these are suffering from increasing deficiencies and legitimacy too. It looks as if we are “close to being a failed state”. The country therefore is facing enormous complexities, including major governance issues. It is all because the country has been captured by a strong group of paranoid political elites belonging to all parties. They have amassed excessive wealth and resources illegally having defrauded public funds running into millions, billions and trillions. 

Such ill-gotten monies are being used unethically and hungrily to defend and prevent any rival elites, with good leadership qualities, taking over governance. The prescription essentially involves insulating institutions from corrupt politicos and strengthening democratic practices and forces. In Aristotelian terms, I quote – “the good leader must have ethos, pathos and logos. The ethos is his moral character, the source of his ability to persuade.  The pathos is his ability to touch feelings, to move people emotionally. The logos is his ability to give solid reasons for an action, to move people intellectually”. 

We have experienced that almost all the elected representatives invest millions and billions to get elected to representative institutions, including Parliament. It is because they want power by fair means or foul. The concern is that the system is dominated by organized and powerful people who do not want to adopt methods to deal with the problem of fraud, restrict opportunity, and limit the ability for potential fraudsters to commit deliberate acts of fraud.  

They also do not introduce deterrent techniques, policies, procedures and controls and activities such as training and fraud awareness to stop fraud from occurring. According to KPMG survey carried out sometime back,  a majority of public sector institutions have not recovered their stolen assets. It has been found that it is preferable to try to prevent loss from occurring in the first place. The old adage ‘prevention is better than cure’ certainly applies to fraud as well. 

Professor Ian Robertson had also stated that “The longer the politicians are in power they are more likely to abuse it”.  I quote- “The artefacts around democracy were invented- such as judiciary, and a free press – because it was observed that leaders often went off the rails and above the law, seeing themselves as special once they gain power”.  In Sri Lanka too, we have seen politicians who have gone off the track very long for decades. Cases that had been detected have not been duly investigated. The perpetrators do not take the law seriously. They commit such crimes audaciously, without batting an eye-lid, one after the other. 

All of them lack moral integrity, which is the most valuable and respected quality of good leaders. Impunity therefore was a creation of all those corrupt politicos who held power since 1970s. Robertson, a Professor of Psychology, Trinity College, Dublin had studied political figures and in his research he had found I quote – “Power can go to some people’s heads and change the way their brain functions – their personality changes, they have a loss of empathy, they are more narcissistic – and are increasingly of the opinion that without them, everything will fall apart”.    

In Sri Lanka too, as Professor Robertson says, power has gone to their heads. He has added that longer they are in power, they are more likely to abuse it.  They have thereby failed to understand public sentiment, I quote – “With public sentiment nothing can fail: without it, nothing can succeed.  Consequently,  he who moulds public sentiment goes deeper than he who can enact statutes or pronounces decisions” – Abraham Lincoln. 

Constitutional experts believe that one of the greatest contributions of the United States Constitution, and perhaps, the most influential section of the US Constitution is its preamble. Let me therefore draw your attention to the preamble of our Constitution, I quote – “The People of Sri Lanka…..and having solemnly resolved by the grant of such Mandate and the confidence reposed in their said Representatives who were elected by an overwhelming majority, to constitute SRI LANKA into a DEMOCRATIC SOCIALIST REPUBLIC whilst ratifying the immutable republican principles of REPRESENTATIVE DEMOCRACY and assuring to all People’s FREEDOM, EQUALITY,JUSTICE, FUNDAMENTAL HUMAN RIGHTS and the INDEPENDENCE OF THE JUDICIARY as the intangible heritage that guarantees the dignity and well-being of succeeding generations of the people of SRI LANKA and of all the People of the world, who come to share with generations the effort of working for the creation and preservation of a JUST AND FREE SOCIETY:

WE, THE FREELY ELECTED REPRESENTATIVES OF THE PEOPLE OF SRI LANKA, in pursuance of such mandate, humbly acknowledging our obligations to our people and gratefully remembering their heroic and unremitting struggle to regain and preserve their rights and privileges so that the Dignity and Freedom of the individual may be assured, Just Social, Economic, Cultural order attained, the Unity of the country restored, and concord established with other Nations, do hereby adopt and enact this CONSTITUTION as the SUPREME LAW of the DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA”.      

Preambles, the world over, often outlines a country’s fundamental goals. The preamble to the Constitution of Japan emphatically states that they are peace-loving, I quote – “Never again shall we be visited  with the horrors of war… desire peace for all the time”.  Preambles therefore contain statements about the constitutional philosophy, future aspirations, commitment to resolve disputes by peaceful means and many more.   

Our leaders, since 1970s have been unethical. It is heartening that the Supreme Court had however ruled unanimously that President Maithreepala Sirisena’s order to dissolve Parliament and hold parliamentary elections is unconstitutional. This is a historic unparalleled judgement. It is the first time in Sri Lanka that an act, purported to be a constitutional prerogative, has been quashed, by the Supreme Court. It is primarily because the 19^th Amendment paved the way for removal of full immunity of an incumbent President. 

It is also alleged that Jayampathy Wickremaratna had crafted the relevant Amendment, I quote – “with the support from Ranil’s office, without the involvement of other political parties”- Dr. Rajiva Wijesinha. It proved that Ranil Wickremasinghe succeeded in amending the Constitution to fulfil his needs, perhaps only because he was well aware that he is not electable if he contests Presidential elections. 

Why is that RW and Jayampathy did not take steps to suitably amend the electoral system and the need to reduce the composition of Parliament almost by half, which are the root causes of all these problems? Under the present preferential system, all candidates spend millions to get elected from the district. They are fully well aware that the people had to carry a huge burden having devolved powers to provincial councils under the 13^th Amendment. Due to all these, poverty is increasing and 42% of the population live below the poverty line. It could be predicted that this situation will become even worse. 

Their priority should have been to replace a top heavy government and avoid political misadventures by addressing the burning issues, i.e., (1) to reform the public sector overall to achieve all sustainable goals (2) to identify necessary economic reforms to strengthen the economy (3) to increase employment opportunities etc., to minimize rising inequalities(4) to address burning issues such as rising cost of living (5) to introduce ways and means to minimize corruption, abuse of power, waste etc., 

In my view, the malaise is all due to the political culture and fragile  foundations. It is awfully distressing to understand how one of the oldest democracies in the world has been totally destroyed including  the rule of law. We are therefore unable to govern the governors. As such we are subject to free rein, which is arbitrary, capricious and brutal.  They do not promote rule of law, after having pledged to the constituents and having got a mandate for the purpose. They act in subtle ways doing everything possible to unplug the concept of rule of law to achieve their  self-seeking agenda. 

We had plenty of elected representatives and public servants, in early 70s,  who always respected the Constitution, all formal laws, unwritten rules and norms. They disliked the abuses of power. They ensured that they served the country for the public good and not for personal financial benefit or gain.  They protected the citizens from arbitrary and unfair government action. At present, without such public officers, the entire government machinery has now become a chaotic garb.   

It is sad that Ranil Wickremesinghe, Prime Minister had forwarded a list of names exceeding the Constitutional restriction that the Cabinet should not exceed thirty under any circumstances – I quote: Article 46 (1) The total number of Ministers shall not exceed thirty; and (b) Ministers who are not members of the Cabinet of Ministers and Deputy Ministers shall not, in the aggregate, exceed forty.  It is pertinent to mention that all those State Ministers were introduced during Premadasa rein. It was no doubt a violation of the Constitution, since there was no such category or provision in the Constitution at that time.  

The authorities have now craftily introduced two categories, i.e. Ministers who are not in the Cabinet (now known as State Ministers) and Deputy Ministers, when in fact both categories are naturally holding ministerial posts who are not members of the Cabinet Minister. All what they want is to give constitutionality to accommodate greedy politicos. Dr. Harsha de Silva who is now a State Minister said that there is hardly any difference between a Cabinet Minister and a so called State Minister.

Furthermore, it is frightening that RW, the PM, has included the names of several politicians, as Cabinet Ministers, who have been utterly corrupt and accused of serious corruption issues.  Ravi Karunayake, as we are aware, was one minister  who had been compelled to resign over numerous allegations. He too had been re-appointed once again without taking legal action against him.  In short, time and again a number of them in the present Cabinet have committed frauds and have abused their positions for personal gain.  They have been re-issued with another licence to commit further frauds and financial crimes.  They therefore show no interest at all to establish rule of law and good governance,  except for a rhetorical comment in that regard. 

Owing to these problems, there is destructive and counter -productive  conduct, theft, fraud, sabotage, anger, frustration, despondency, pessimism and aggression. In addition, how did political tribalism come about in Sri Lanka?  It began, in my view, a several decades ago, when SWRD Bandaranaike broke away from the UNP camp and formed the SLFP with a view to promote his own vision. SWRD was a leader who was subsequently assassinated by the very same forces.  

JR Jayewardene during his election campaign in 1977,  appealed to the nation, I quote – “Give me 120 good men and I assure you we will fulfil our pledges…if we fail you, you are at perfect liberty to vote us out anytime”. The people trusted the then UNP leadership and overwhelmingly voted and elected the UNP regime with an unprecedented mandate with 139 seats in a 168 member Parliament and gave not only a two-thirds but a five sixth’s majority as well, which was the finest ever victory ever secured by any party since independence.

JRJ used the mandate he received to enact the law and called himself the first “elected” President, without being elected to the post.  JRJ had stated  – such an executive is a strong executive, seated in power for a fixed number of years, not subject to the whims and fancies of an elected legislature, not afraid to take correct but unpopular decisions because of censure from its parliamentary party.  This seems to me a very necessary requirement in a developing country faced with grave problems such as we are faced today”.  

Steps had been accordingly taken to transform the system of governance from a Westminster-style parliamentary system to an executive presidential system, which had finally paved the way for a weak Parliament.  Under the previous Constitutions (Soulbury (1947)/Republican (1972)), the Executive had been made answerable and accountable to the Parliament,  which JRJ had wanted changed. A brand new Constitution was thereafter enacted once again to consolidate the presidential system in 1978. Executive President was deceptively made answerable to the Parliament constitutionally, which realistically never happens to-date. An impeachment procedure too had been introduced to remove the President. Dr. N.M. Perera had argued that the “impeachment procedure was a near impossibility in practice”.  Hence, crafting a strategy for ending lawlessness and establishing rule of law is a herculean task.