Wednesday, 18 June 2014 00:00
Ven. Rathana Thero has stated to a Sinhala newspaper that he hopes we would be ruled by someone like Arahat Mahinda. But Arahat Mahinda did not become Arahat in a day. Human beings may be capable of becoming saints but they are also capable of becoming devils. James Madison pointed out that men are not angels and men will never be governed by angels. So he wanted to exclude the possibility of being ruled by devils.
Montesquieu pointed out that absolute power leads to tyranny. So he advocated a separation of powers. The Founding Fathers of the American Constitution adopted Montesquieu’s suggestion and introduced the separation of powers and checks and balances in the American Constitution. They considered it necessary to prevent tyranny of the ruler over his subjects.
We were given a system of government by the British, which involved the separation of the Judiciary and a politically neural public service appointed on merit and protected for good service. The Judiciary was also made independent of the Executive. But under the present regime the president has the power to appoint justices and other top-level officials at his absolute discretion and he is accountable no one. He has absolute immunity from prosecution even if he commits a criminal offence.
The Executive and the Legislature were separate bodies but some fusion was necessary to enable co-operation. So the British system of government called the Westminster system is based on a different principle where there is some fusion between the Executive and the Legislature. But with the development of the party system it has become increasingly difficult for the Legislature to act as a check on the Executive owing to the exercise of the power of the Party Whip.
President J.R. Jayawardene gave us a hybrid system of government- neither Westminster nor purely Presidential. In the process he paved the way for a dictatorship. He was more concerned in protecting his tenure than the long term interest of the nation. So when he realised that the Members of Parliament could gang up against him he obtained undated letters of resignation from them. This of course is unethical. But his successors went further and offered perks and privileges to the Opposition MPs to woo them to the ranks of the ruling party. In this unethical manner the present regime has obtained a two-third majority in Parliament and proceeded to do away with the independence of the Judiciary and appointed stooges to the machinery of the government. The 17th Amendment was repealed and the term limit on the President was abolished. So we can have a President for life. These constitutional changes were made without a referendum courtesy of the former Chief Justice Shirani Bandaranayake.
The British courts have sought to uphold the freedom of conscience of the Members of Parliament and sought to check the powers of an organisation to expel its members – a principle recognised in the Common Law. A former Chief Justice misused this principle of the freedom of conscience to stop the provision that deprived the Member of Parliament of his seat in Parliament if he crossed over from the party on which he was elected to another political party for very unworthy motives.
This was unjustifiable since under the PR electoral system the electorate casts votes not for the individual but for the political party of which he is a member. So the system of governance has been distorted to enable an elective dictatorship to be established. The need for free and fair elections requires an impartial politically neutral Elections Department. Do we have it? If not why talk of elections as a justification for the appointment of the President? How then are we a democracy?
If there was only a division of power in the national government without checks and balances, then one branch could expand its power and, ultimately, dominate the other branches as has happened in our country now. Lord Acton echoed this very concern when he proclaimed, “Power corrupts, and absolute power corrupts absolutely” (‘Famous Quotations’). The principle of checks and balances thwarts such an accumulation of power.
We are now protesting against the UN investigation as to whether the Government has violated the Rule of Law and Human Rights. It relates primarily to the last stage of the war. If the allegations are proved to be true it would damage the prospects for reconciliation between the two communities. The only saving grace is that previously a murderous government under a previous President committed similar atrocities against the Sinhalese who were members of the JVP. These were never investigated and the murderers not held accountable although the present President took the issue to the UN then.
We desperately need to restore the Rule of Law. How do we do it? The Opposition is talking of a single issue candidate with the single issue being the abolition of the Executive Presidency. But what are required are primarily the repeal of the 18th Amendment and the restoration of the Independent Commissions and the restoration of the forfeiture clause for crossing the political party on which an MP was elected. This can be done if the necessary legislation can be passed.
Why can’t those who stand for liberal democracy and the Rule of Law including the JHU and the Wimal Weerawansa group who are critical of the regime make an issue of these matters in Parliament first? We are a people who according to folklore threw stones at the moon and sought to go to heaven by tagging on to an elephant’s tail.
The American presidential system and similar presidential systems were based on an understanding of human nature and the nature of governance.