Wednesday, 27 August 2014 00:00
Some thoughts on the operation of ‘public trust’ in our Republic...The people vest their power in “public trust”, temporarily on a government
Whilst returning to the island from vacation having experienced firsthand how some in our Asian region have managed to maintain the balance of sovereign power to better serve their peoples to a relatively high degree, a headline in the local paper caught my eye: JVP Leader Anura Dissanayake, MP’s question on irregular appointments to the Diplomatic Corp. This immediately invoked a ‘polisocionomic’ thought process – are we Sri Lankans truly the beneficiaries of the exercise of our sovereign power?
Article 3 of the Constitution states that Sovereignty of this Republic lies in us, its people and is inalienable, which is divided and exercised by the three institutions of government (under Article 4); the Supreme Court has interpreted it to be so. These powers reposed absolutely in us “the People” are temporarily vested “in Public Trust” in a Parliament [A 4(a)] to make laws, an executive president [A 4(b)] to implement policy and a system of courts [A 4(c)] to administer justice; all to ultimately attain our best interests as absolute beneficiaries. Does this really happen? Analysing a few situations (plenty more, but due to publishing constraints) let us see if these objectives have been secured by us in this Republic that we have established for ourselves; by us (the People), of us and for us.
Legislative power of the people
Capacity of elected legislators – incidents are reported daily of elected parliamentarians and provincial members acting beyond and above the law, seriously questioning the continuance of their “Honourable” title; which was historically afforded for honorary services without reward or pay. This has since given way to top salaries, city residences, luxury vehicles, entourages of servants and guards, business-class travel etc all funded by our taxed rupees. All we ask for in return is to simply sit in assembly and legislate on our behalf, which is the last thing that appears to be done; over the last few months alone sittings had been postponed more than once due to absence of a quorum!
Process of electing – There is a mad rush though to somehow get elected to “serve us”! This high expenditure of running for public office in a preferential vote (manaape) system has dissuaded eminently suited, adequately educated persons of stature and integrity from entering public office, in fact resulting in the very opposite; mostly undesirable and corrupt individuals acting as our legislators. The two mainstream parties (UNP and PA) also favours presenting multi-millionaire or super-star candidates with some TV airtime claim to popularity, attempting to muster a bulk party vote in proportionate representation. Recent election results fortunately show that the voter has awoken to this reality now, and been astute enough to reject “show-piece politicos”; preferring more ordinary candidates of the JVP and DP. It is hoped this intellect will continue, forcing even the larger parties to present more suitable candidates for election.
When was the last “people friendly” law enacted – If they actually had the “people’s benefit” at heart, several worthwhile Bills would have seen assent by now? The Medicinal Policy is to see the light of day for years now; the last draft was reported “lost” while our patients go in queue from pillar to post even for a blood test! The Freedom of Information Bill was still-born, but our SAARC neighbours have embraced the concept.
Where is parliamentary oversight – I was once a spokesman in a public interest initiative titled “Non-political appointments to key high posts”. Our study of a cross-section of diplomatic and statutory board appointments revealed that immediately following an election, this was the “appeasement” for those who had “helped them” (or expected) to retain State power. We were critical in our findings that the “High Posts Committee” of parliament, which was supposed to exercise oversight had not even convened (at the time) for several months; this not only permits unsuitable appointments but also leaves room for a regime to lure public officials nearing their retirement to act partially, promising them diplomatic postings etc; denying us, the People of good governance.
In this backdrop, is it not time to question whether we have our sovereign legislative powers actually working to our benefit?
The executive power of the people
We temporarily repose our executive power on an elected President, which by extension provided at Article 43 is transformed into governmental action by a Cabinet of Ministers. This “execution” of power must (as expressly stated in Chapter VI - Directive Principles of State Policy) must be aimed at securing our absolute benefit, which can be widely defined as the “Public Trust” doctrine; that those powers are held “in trust” by the executive branch who are its “temporary custodians”, to be ultimately used to secure our best interests and happiness as its “beneficiaries”.
Benefits from massive infrastructure projects – leaving aside the regular complaints of 10%-20% kickbacks in non-transparent procurements we hear ad nauseam, in economic theory how is such public expenditure expected to benefit the tax payer? Admittedly these millions of dollars (or Chinese Yuan) are not from the personal estate of some minister, but through the public coffers generated by direct or indirect taxation. One theory for the return on such investment is to afford savings on consumer expenditure. Illustration – construction of a high-speed motorway, funded by a forex loan is expected to reduce production cost and increase revenue of a rural farmer (transportation and speed), in supplying the produce to the market; where the benefit of such reduced cost and revenue generation must then be passed on to the consumer through reduced pricing; the intended benefit is not for some middle-man in the “jet-set” company of the executive to reap those benefits and do an inter-city journey in 25 minutes in a luxury vehicle purchased from that profit, leaving both the poor farmer and the tax-payer with no benefit; where they originally were, travelling in the same old road in the same old rickety bus! Has our public expenditure filtered down to the citizen as economic benefit, be it highways, airports or harbours and if not, have we got it all wrong?
“Public” officers, not “government” servants – Executive power devolved to a ministry portfolio are usually delegated to public officers for implementation. We appreciate the work of several committed public officials, but are the majority genuinely working in the service of the “public” who pay their salaries? Or have they become subservient to a “government” of the day, towing the political line of a minister to curry favour? Be it the elections commission, wildlife, customs or any other department, do they appreciate this important distinction between serving “the state” (the public) which is permanent and a “government” in office, which is temporary?
Executive Presidential System (EPS) – everyone including the UNP that introduced the system does not seem to want it now, even the Mahinda Chinthana stated so, though only the leftist sahodaraya’s speak of it now. Nevertheless there appears to be a common consensus that our EPS that is not answerable to the Law, to Parliament and now (after the 18th amendment) not even restricted by terms of office is too much power to vest on one individual; however dharmishta he or she may be, their humanness will overcome such godliness at some time; this is what the political scientists theorise as “absolute power corrupting absolutely”!
The judicial power of the people
The People’s judicial power exercised through courts and tribunals must gain their confidence of being ruled “according to law”, where discrimination on any ground is not tolerated; where a citizen can feel equally treated before any court to plead their case, freely and without fear of favouritism or any equivocation to obtain justice.
Flaws and delays in the system – we recently heard Hon. the Attorney General repeating a question posed to him, whether this “AG’s advice was something that came from overseas”; this to me depicts the level of confidence in our system. The Lord Chief Justice is constantly reported to air this very grievance during most circuit visits; that we need to make justice more accessible to the People. Common sentiment amongst legal practitioners are that prospective litigants appear reluctant to enter a process of litigation to resolve their disputes, even with a strong case; why then are the People dissuaded from invoking their own sovereign judicial power – we need to question this?
Elite few operating beyond/above the law – I know of someone who travels with a “VVIP” banner displayed on the windscreen of his SUV; he claims confidently that he is hardly pulled-over, on the rare occasion he is, he simply drops the name of a highly-placed relative! This can be openly seen in or around Colombo, a handful of persons behave as if Article 12(1) (equality before the law) doesn’t apply to them; traffic violations, breaches of the peace, public nuisances or even outright battery or assault which become offences to the rest appear to fall on a blind-eye for this “special class”; this attitude will not gain public confidence in the Rule of Law.
Extra judicial killings/disappearances – news today is incomplete without at least a couple of such headlines, murder using T-56 assault rifles, kidnappings and robberies at gunpoint, prisoners being shot or drowned whilst in custody (said to occur en route to uncover a hidden stash); does this depict a governance by law or the law of the jungle bordering on anarchy? Are we comfortable asserting our rights without fear, expressing our belief, religion, thought or political opinion without looking over the shoulder – are we free, truly?
Public confidence in the judicial process – the recent controversy over the impeachment of Her Ladyship the 43rd Chief Justice has not done us any favours in the public eye; these questions are posed to us, both locally and internationally (when we travel) as to how the sitting head of the Judiciary was removed by a process that the Supreme Court declared to be illegal and unlawful. The question posed by the ordinary citizen is more fundamental; if this could happen to “them”, what could happen to “us”?
It is time for us to question whether, somewhere down the line, the absolute sovereign power that is constitutionally guaranteed to be inalienable from us, which we have temporarily vested in “public trust” on the three organs of government to be used for our ultimate benefit remains intact; or has it undergone some “political metamorphosis” where the “servant” has become the “master”? If we believe this to be so, then should we not look at a system overhaul, not a mere change of regime (though regular changes are desirable from a democratic point of view)? Without more will it answer our demands?
The Executive Presidential System (EPS) has overstayed its purpose, it played an important role during our emergency situation but now do we not need some “normalcy”? To replace it with a more “people friendly” system, perhaps a ceremonial executive and a prime minister answerable to parliament and courts, keeping the powers “in check”? We can cast our own model, may be a bicameral system where those suitable will make up an “upper house” and elect representatives for the lower house; is it not time for a leader to come out with a political vision to carry this through; but someone on whom we can repose sufficient confidence, who will “walk the talk”.
It is we the people who have established this Republic, the preamble to our Constitution states so, we hold that sovereign power that is the fountain of our statehood; thus if that system we adopted is not serving our ultimate benefit, is it not up to us the people to once again look for a better model – power to the people!