I haven’t written to the print media for a while now, mostly out of sheer disgust at what is displayed daily, rapid decline in all spheres of Government and for the same reason have also limited my airtime on electronic media to once-a-month now; I fear that many others (like De Maistre) may have come to the conclusion “toute nation a le gouvernementqu’ellemérite“ (or every nation gets the government it deserves) and left it at that, until the people change, things will remain as is!
Watching the “presidential drama” unfold everyday on our TV’s consuming the majority of airtime, I just thought of penning down a few thoughts that crossed my mind, not that I really expect any drastic change but at least for the sake of posterity; so that someone, at some time in the future at least will know that we did what we could.
Can one person (president) under our system really change things dramatically for us?
Emphasising that this dialogue is not to engage in any political discourse of what’s happening with the ongoing race to become our first citizen, but having been involved with the formulation of the 19th Amendment to the Constitution in the immediate aftermath of the 8 January ‘silent revolution’ I thought it was pertinent to look at several questions of law that arise in this process; perhaps as a precursor to an intellectual dialogue of the Sri Lankan polity as to how we are meant to be governed as opposed to how in fact we are supposedly “governed” (or misgoverned)!
Our next president will not enjoy many executive powers that we traditionally associate with this office thus far, thus governance will mostly fall on a prime minister and cabinet; who are required to be collectively responsible to us, the people. The best explanation of “collective responsibility” in the science of politics lies in the often quoted words (attributed to Churchill’s speech in the Commons) that “whether we swim or drown, we must do it together”; which has been given legal recognition by our Article 43 of the Constitution, imposing this burden on our own cabinet of ministers, charging them with the responsibility of direction and control of government.
So particularly in such a backdrop, can one person, however “Herculean” he/she may be perceived to be, without a team of adequately qualified and integrally suitable persons to hold such cabinet portfolios, really do much change to this cancer of purported executive governance that eats much of our resources but delivers very little in return (if at all)?
Co-relation between Cabinet’s duty and Directive Principles of State – Articles 43 and 27
The cabinet is bound by the ‘Directive Principles of State Policy’ set out in Article 27 when exercising its above charge of directing and controlling government, the idea being that the president and his team are collectively bound by the Rule of Law specified in the Constitution in all their undertakings; they have not been given an open warrant or the commonly quoted freedom of a wild ass to govern as they please.
These Principles of State Policy at Article 27(2), amongst other things, directs a Cabinet of Ministers to ensure “full realisation of fundamental rights and freedoms” of all people that include (a) justice to all (b) Equitable distribution of our resources to best sub-serve the common good (e) means of production, etc. are not concentrated on a privileged few but dispersed to all people etc. Do we have this now? Can one man or woman suddenly deliver this without a concrete plan (not just stage-promises) and a team?
The ‘Pleasure Principle’ – appointment and removal of ministers (including PM)
In the public sector someone serves at “the pleasure of the employer”, meaning that you hold office in so far as you satisfy the requirements of your appointing authority; which does not mean however, in today’s context and the wealth of interpreted law that you may be removed unlawfully and/or in violation of your rights.
Does this apply to a president “cherry-picking” his cabinet of ministers (including a PM)? We saw the drama that unfolded last October and November and how ultimately the matter had to be resolved by “the Law”; I can’t see that situation changing for the next president as well, particularly after the full force of the 19th Amendment kicks in.
‘Separation of powers’ and checks and balances
They say that our present Constitution was enacted looking at the French and US models which are founded on strict application of the concept of separation of powers (as seen by Montesquieu); maintaining Legislative, Executive, and Judicial powers separately, to keep each other in check to prevent any one branch from becoming too powerful.
They (the French and the Yankees) have managed to a large extent to achieve this, at least between the Executive and Legislative arms of government by keeping each other away. Their members of the Executive cannot be part of the Legislature and vice versa.
However here in jolly old Lanka (whilst proclaiming to follow that model) we have opted to pick our Executive from and out of our own Legislature, thus opening the door for “jumping time” to obtain a ministerial portfolio rather than the meagre allowance of a simple MP.
Thus in my humble opinion, until such time we can at least get this one right, that if you’re part of executive government with the president, you cannot hold office as a member of our Legislature; we will never be able to hold our representatives in check; for they will eventually “jump” from one side to another for their own political gain.
Furthermore if we can somehow achieve this balance, I am confident that we can have a proper set of (limited number) qualified and suitable persons holding cabinet portfolios running executive government whilst we can also secure truly committed persons to come forward as legislators (not attracted to the filthy lucre of executive office) to actually read the letters of law in Parliament, argue and make policy; and get the two sides to check each other for corrupt activity.
Failure of Executive Government’s collective responsibility in Easter Sunday tragedy
The best example of what I’m trying to argue above was seen in the recent tragedy which is fast unravelling now in a matter we’re supporting before the Supreme Court; where political expediency and petty party-squabbling in government appears to have got the better over defending the Republic.
Sovereignty of this country is reposed in the people inalienably and in terms of Article 4 we periodically vest it, in public trust, on the three organs to govern us. It is clearly evident that there was a failure of collective responsibility as a whole over the recent tragedy, of course, in addition to the public officers who had also failed miserably in their duties of office; ultimately resulting in the tragic loss of innocent lives.
Perhaps this is another one of those rare moments that history will give us, with this massive shockwave that rocked our body politick; to take stock of what we’ve done wrong up to now and make it right, to ensure that sad history does not repeat itself. I sincerely wish that for my fellow Sri Lankans. As that famous Chinese saying goes (no pun intended) “May we live in interesting times”!