The term ‘checks and balances’ is defined by the Oxford Dictionary as follows: “Counterbalancing influences by which an organisation or system is regulated, typically those ensuring that power in political institutions is not concentrated in the hands of particular individuals or groups.”
Webster Concise Encyclopaedia elaborates it further as follows: “Principle of government under which separate branches are empowered to prevent actions by other branches and are induced to share power. Checks and balances are applied primarily in constitutional governments. They are of fundamental importance in tripartite governments, such as that of the US, that separate powers among legislative, executive, and judicial departments. Checks and balances, which modify the separation of powers, may operate under parliamentary systems through exercise of a parliament’s prerogative to adopt a no-confidence vote against a government; the government, or cabinet, in turn, ordinarily may dissolve the parliament. In one-party political systems, informal checks and balances may operate when organs of an authoritarian or totalitarian regime compete for power. See also Federalist papers; judicial review; separation of powers.”
Constitution of Sri Lanka
The Constitution of Sri Lanka is a hybrid system of the constitutions of USA and France and comprising of thinking of its creator. Checks and balances are introduced to the constitutions to facilitate the functions of Legislature, Executive and the Judiciary where the responsibility of the Legislature is to impose the laws; the responsibility of the Executive to implement the same and the responsibility of Judiciary is to see whether those are implemented properly.
The President of the US can be summoned by the Judiciary and the British Prime Minister is responsible to the Parliament. These checks and balances are beneficial to the people since thereby the state can provide a better service as a result of lesser power concentration of one entity or individual.
The Constitution of Sri Lanka is quite different. The Executive is above not only the Legislature and Judiciary but also the Constitution itself. As a result the associates of the Executive are also placed little below the Executive but above such constitutional institutions on the directives of the Executive but outside of the constitutional provisions. Whatever the checks and balances imposed by the creators of the Constitution are being destroyed day-by-day.
It was the intention of the creators of the Constitution not to let one party have too much of power in the Parliament since the members of the Parliament were selected by Proportional Representation. It was prohibited in the Constitution to change the party and cross-over to the opponent side by the Parliamentarians.
Violation of provision
The Judiciary of Sri Lanka violated this fundamental constitutional provision and allowed Opposition Parliamentarians to cross-over to the Government benches, thereby making the ruling party stronger with a power not given to them by the people and creating a major hindrance to the constitutional
checks and balances.
The period of all powerful executive was limited to two terms. In the US constitution this limitation was brought in as an amendment after Theodore Roosevelt attempted to become US President third time, breaking the widely-acknowledged tradition. This key component of the constitution was amended enabling the Executive to stay more than two terms with the power derived by the ruling party with illegitimate crossovers and with the blessings of Judiciary.
When the legitimate checks and balances are faded away, checks and balances are coming in to the system outside of the Constitution giving an extended interpretation to checks and balances and going beyond the accepted limitations.
After the introduction of the present Constitution and when the then President kept on amending the Constitution based on his whims and fancies, the JVP insurrection came in against the authority of the regime. At the beginning people enjoyed the anti-Government activities of the rebels but when the rebellion progressed enjoyment was dissolved. However the autocracy of the then regime was somewhat controlled by the rebellion.
Although the rebellion by LTTE has taken a communal frontage it was in essence a rebellion against an authoritative rule. If not for the unwise and narrow-minded moves and intentions of its leader it had the potential of controlling autocratic intentions of the State.
These two rebellions were checks and balances immerged outside the Constitution when constitutional checks and balances were substituted with autocracy.
Concept of sovereignty
Modern day, the concept of sovereignty is being challenged in the light of international law. If the national state is supreme then it is argued that no international law norm is valid unless the state has somehow consented to it. The concepts of weapons of mass destruction, genocide and failed states create problems for sovereignty.
Under the General Agreement on Tariffs and Trade whose membership is not limited to a sovereign states but, instead, to a state or separate customs territory possessing full autonomy in the conduct of its external commercial relations.
Therefore today sovereignty is not interpreted in the same way it was interpreted prior to World War II. In this light the international pressure faced by the present Government can be considered as checks and balances to safeguard the people from an autocratic way of governance.
It was evident that the Northern Provincial Council election was held due to the pressure of India in light of the CHOGM to be held in Sri Lanka. Because of this piece of checks and balances the country can say that there is a democratic process within although the day-to-day functions of the Council is hampered by the Government intentionally.
When Khuram Sheikh, a British national, was murdered and his girlfriend was raped, the murder investigation was unduly delayed due to political influence. The litigation process was recommenced with the pressure of the British Government and especially after the news that Prince Charles was to inquire about the progress at the time of
These are checks and balances outside the Constitution although the people of the soil are not fortunate enough to get such influence. Although it is the duty of the Attorney General to appeal against the verdict of the said case going in line with the Royal Park murder case, considering the political influence prevalent related to this case, we should commend the Attorney General for his action.
If the state and the people think in the best way, the checks and balances required for good governance of the country should have been incorporated into the Constitution of the country. It is a disgrace if there are checks and balances outside of the Constitution.Citizens of a country cannot approve of the situation where a part of the people influences an elected government with an armed struggle while the international community influences an elected government with pure might or under international law. Unfortunately the governance structure of Sri Lanka has not learnt any lessons out of three insurrections faced by the country within a relatively short span of the history.
It is the duty of the elected Government to live up to the international standards which are agreed upon by the independent nations and adjust its foreign policy so that it cannot be intimidated by any. If things are not happening in the appropriate way, the people of the country would be benefitted by the working of checks and balances outside of the Constitution.
(The writer is a Chartered Accountant by profession and holds a Master of Business Administration degree awarded by the Postgraduate Institute of Management of University of Sri Jayewardenepura.)