‘In the opinion of the President’ doesn’t mean arbitrary choice, but going by simple arithmetic

In a democracy, the President is not the ‘first master’: he is simply the ‘first servant of the citizens’, as was pronounced by the President himself, on being sworn in as President on 9 January 2015

• Man-made constitutional crisis 2018, Part 4

President is not first master, but first servant of the Republic

The man-made constitutional crisis in Sri Lanka has now entered its second month with no solution in sight. It has entailed enormous costs on the economy, eroded the credibility of the country, and dented irreparably the fledgling institutional framework it created recently. It has brought to focus the fragility of the Parliamentary democracy when it comes under attack by forces working in their own interests. Yet, Sri Lankans have got themselves divided into two groups, one arguing for the constitutionality of the President’s actions, and the other against them. Lawyers, academics, party-men, and sympathisers of the President’s action have been arguing that the provisions in the Constitution reading ‘in the opinion of the President’ give him absolute discretionary powers to choose whomever he thinks should be the Prime Minister of the country. 

It seems that this group has tended to ignore that, as I have pointed out in a previous article in this series, Sri Lanka is a Republic and not a monarchy. In a republic, it is the citizens who hold onto sovereign powers, and the President is simply someone elected by citizens to preside over the political organisation created by them for their benefit. As such, the President has no powers which other citizens in the republic do not have. Hence, the most important principle that should guide his action should be that it is wholly intended to the benefits of the citizens. He is an agent and the principals who have engaged him for the job are the citizens. 

He is simply the ‘first servant of the citizens’ as was pronounced by the President himself on being sworn in as President on 9 January 2015. In a democracy, he is not the ‘first master’. Any attempt at acting as the first master will be disastrous for him as well as for the country. And this is a possibility which he should avoid at all costs. 

 

Thus, the President has not been given arbitrary discretionary powers in the Constitution. When he reads the provision ‘in the opinion of the President’, it is not complicated algorithms that should be taken into account. It is simple arithmetic of majority, as revealed by numbers. Hence, what the President should do now is, instead of postponing a decision by coming up with disputable excuses, revert back to pre-October 26 position and allow the democratic forces to select the Prime Minister by using simple majority in Parliament. 

Selfishness will prompt individuals to ignore the obligations to their principals

This principal-agent relationship has given rise to what in economics known as the ‘principal-agent problem’. The principal – in this case, the citizens – have engaged the agent – the President – to serve the interests of the citizens. Hence, everything which the President should do should be for the benefit of the citizens. 

However, when principals lose supervisory or controlling powers over the agent, the latter simply works in his own interests at the expense of the principals who have engaged him. This happens in private companies, public sector entities and at the national levels, in a country’s political organisations. In the case of private companies, the costs are borne by shareholders; in public sector entities, by consumers of public services. 

 

National level costs are borne by citizens as well as foreigners

But, at national levels, these costs are borne by all citizens and foreigners, to the extent they have economic, political and other relationships with the country concerned. Hence, if the citizens of a country have entered into such relationships with foreign countries, they cannot avoid foreigners from interfering in their affairs when the principal-agent relationship is violated by their political leaders. In other words, in the modern world where countries are connected to each other, the sovereignty of nations is fragile, blurred and contestable. 

A good example is found in the relationship between USA and China. Of the $ 4 trillion foreign assets owned by China, about 75% has been invested in US dollar-denominated assets. As a result what USA does in its foreign affairs is a concern for China; for instance, if USA decides to go to war with, say Iran, tomorrow, the most concerned country about it is China, because it stands to lose its assets. 

 

Countries have sought to keep the principal-agent problem at a minimum by resorting to two measures. First, they have introduced Constitutions which prevent such behaviour by political leaders. Second, they have permitted the establishment of strong institutions in those countries, which have to ensure that good governance principles are followed by political leaders. Both act as a check as well as a brake for the unconstitutional measures which political leaders may contemplate to adopt by violating their obligations to the principals, namely, the citizens. 

Another example could be found from Sri Lanka’s ancient history. During the reign of King Parakramabahu the First from 1153 to 1186, Sri Lanka’s trade in elephants was affected by an ex parte import duty imposed by the king of present-day Myanmar, King Arimaddana, in the form or raising the duty from 100 silver tikels to 1000 silver tikels per elephant. In finding that Lankan elephants were no longer competitive with those from Bengal, King Parakramabahu the First invaded Myanmar and established his trade rights. Hence, those who argue against foreign countries interfering in the affairs of Sri Lanka today should be mindful of the fact that it is unavoidable as long as Sri Lanka has trade, economic, political, and religious relationships with other nations. This is relevant to other countries as well. 

 

A good Constitution and governance structure are the way to prevent abuse of powers

Countries have sought to keep the principal-agent problem at a minimum by resorting to two measures. First, they have introduced Constitutions which prevent such behaviour by political leaders. Second, they have permitted the establishment of strong institutions in those countries, which have to ensure that good governance principles are followed by political leaders. Both act as a check as well as a brake for the unconstitutional measures which political leaders may contemplate to adopt by violating their obligations to the principals, namely, the citizens. 

Hence, the Presidents of republics or political leaders of democracies should not attempt at bending the provisions of Constitutions or violate good governance principles to suit their private interests. If they choose to do so, they would be under attack not only by concerned citizens, but also by foreign nations which have a stake in the country.

All those in power should comply with the Constitution 

A constitution is not just a document which is there to enable those in power to maintain legitimacy to their rule. It is a binding agreement between the citizens, on the one side, and those in power, on the other. Those in power include a number of segments in society such as the President of the Republic, members of the Cabinet, those in the Legislature, those in the Judiciary and those in the bureaucracy, to mention but a few. Each one of them has pledged to honour, respect and follow the Constitution. 

If they bend the provisions in the Constitution to suit their personal ambitions, or read it not as a whole but selectively to pinpoint the provisions that are favourable to their action, a serious issue will arise with respect to maintaining the credibility of the Government in the eyes of both the citizens and foreigners. This is why those who support the President’s action have taken great pains in proving to us that what the President has done is totally in accordance with the Constitution, and those who oppose him have taken the contrary view. 

 

Riding on the wave of good governance to power in 2015

The President and the Government he sacked on 26 October came to power in 2015 by riding the popular wave of good governance, which society was demanding in a single voice at that time. That was the sure gateway available for anyone who sought power from the people. 

In fact, some of the measures they took in the initial two years were in line with the promise they made to the people. The establishment of independent Commissions, enactment of the Right to Information Act, and curtailment of the absolute uncontested powers enjoyed by the Executive President were some of them. Yet, the way that the Government leaders behaved in Parliament and outside, especially how they tackled the continued scams in the Treasury bond market, were far from the ideals of a good governance Government. 

One of the reasons adduced by the President for sacking Prime Minister Ranil Wickremesinghe was this infamous bond scam. Yet, it does not give a blanket approval for the President to disregard the ideals of good governance.

 

Governance is a moral and an ethical code 

Governance refers to how an individual relates himself to society’s ethical and moral code.

Individuals are, by nature, selfish creatures and, therefore, it is difficult to expect selfish individuals to subscribe to a moral and ethical code when it conflicts with their private desires. 

Their genetic landscape, as argued by the Oxford University’s ex-evolutionary biologist Richard Dawkins in The Selfish Gene, is both wired and made up for their own survival and protection. Hence, the prime objective of individuals is to work for self–interest and ensure survival, sustenance and well-being. Governance factors, though they benefit from them, become secondary to their private goals. 

 

When the moral and ethical code of a society is at variance with the individual self-seeking, there arises a conflict and that conflict gives rise to the need for a governance code. The reference that we often hear as ‘good governance’ or ‘bad governance’ is, in fact, made in relation to the divergence of the personal behaviour from the governance code. What it means is that, if there is no difference between the moral and ethical code of the society and the uncontrolled self-seeking behaviour of individuals, then, there is no meaning in talking about good governance or bad governance.

Problems arise when moral and ethical codes conflicts with personal desires

When the moral and ethical code of a society is at variance with the individual self-seeking, there arises a conflict and that conflict gives rise to the need for a governance code. The reference that we often hear as ‘good governance’ or ‘bad governance’ is, in fact, made in relation to the divergence of the personal behaviour from the governance code. What it means is that, if there is no difference between the moral and ethical code of the society and the uncontrolled self-seeking behaviour of individuals, then, there is no meaning in talking about good governance or bad governance.

 

In a society of robbers and cheaters, good governance is ‘robbing and cheating’

This can be illustrated by considering a hypothetical case. Suppose that the society upholds robbery as its moral and ethical foundation. In this society, those who rob others are hailed and those who refuse to rob are jailed. 

What is the cherished principle of governance in this society? It is nothing but robbery and cheating at every human transaction. So, everyone is taught to rob and cheat others. The person who makes the biggest robbery (or equivalently, does the gravest cheating) is hailed by all as their superhero. 

Since non-robbers have no place in this society, it becomes necessary for everyone to become a robber or a cheater. Thus, robbers and cheaters will drive out all the good people and, eventually, the society will be made up exclusively of people of the former category. 

Good governance in this society is simply what people will do to rob or cheat the fellow citizens.  By the same analogy, bad governance occurs when they do not rob or cheat.

 

Essential features of an ethical and moral code of good governance

For us to talk about good governance in a given society, its ethical and moral code should necessarily uphold and honour the following: the recognition of the rights of others; fair play in dealings; freedom of thought and expression; toleration of opposing views; peaceful resolution of conflicts and disputes and open and free debates over unsorted issues with a view to finding a lasting and amicable settlement. 

Governance is thus a way of life of a large segment of the members of a society. It is a self-discipline and an ethical and moral code which people have inbuilt in themselves. It is also a peaceful and amicable way to resolve the conflict between private self- interests and society’s common interests without injuring the psyche and the intellectual build-up of individuals. When followed by everybody in terms of its spirit and not as a mere lip serving, it contributes to the mutual benefit of all those in a society.

 

Six tests to pass with a perfect score before action is taken  

The moral and ethical foundation underlying good governance requires the President and other political leaders to ask six questions before they undertake any activity on behalf of the people.

• First, whether that action is financial prudent and does not harm others. 
• Second, whether it is in accordance with the laws, rules and regulations, both in its spirit and in letter. 
• Third, whether it is in accordance with the agreement they have signed with the people when they sought power at the election. 
• Fourth, whether it is morally and ethically correct and leave them with a clear conscience after their action. 
• Fifth, whether it is exemplary and honourable and stands above all others worthy of being emulated by them. 
• Sixth, whether it would tarnish the reputation of the President and other political leaders or whether it harms their public image. 

The President and all other political leaders should act if and only if they pass all these six tests, not just marginally but with a perfect 100% score.  It is thus time for the President to sit back and reflect on whether his action during the past month is in accordance with these ideals.

 

Going by simple arithmetic is the way out 

Thus, the President has not been given arbitrary discretionary powers in the Constitution. When he reads the provision ‘in the opinion of the President’, it is not complicated algorithms that should be taken into account. 

It is simple arithmetic of majority, as revealed by numbers, which even a student in a primary class would understand. Hence, what the President should do now is, instead of postponing a decision by coming up with disputable excuses, revert back to pre-October 26 position and allow the democratic forces to select the Prime Minister by using simple majority in Parliament. 

This should not be construed by the President as an instance of ‘losing face’, since he is a leader who has pledged to establish a good governance society in the country.

(W A Wijewardena, a former Deputy Governor of the Central Bank of Sri Lanka, can be reached at [email protected])