The Budget and the Cabinet

Saturday, 27 November 2010 00:01 -     - {{hitsCtrl.values.hits}}

A critic must critique and do so as speedily as they rush to criticise ‘evil,’ affording equal sincerity to the ‘good’ when seen; that is when they remain critically balanced!

By Chrishmal Warnasuriya BA (Colombo), P Dip. (Hons), LLM (Hons) (London)

A critic must critique and do so as speedily as they rush to criticise ‘evil,’ affording equal sincerity to the ‘good’ when seen; that is when they remain critically balanced!

Once again this theme has become the hot-topic doing the circuit in our over-politicised society where ‘getting anything done’ appears to depend on what political clout you have, how many of these purported VIPs one knows and ‘how high’ their office runs!

This will unfortunately remain the status quo until the people of this republic realise that sovereign power of this nation-state is reposed in them (Article 3 of the Constitution) and is inalienable; it is only periodically entrusted in these organs of government (Executive, Legislative and Judicial – Article 4) by the people to hold and exercise it for and on their behalf in serving the people, to their ultimate benefit!

Now either the media (so called fourth dimension of a functional democracy) or the politicians themselves must carry this message to the people and educate them, but do they? If not, why not? This is the only way the masses will ultimately rid their minds free of the feudalistic ‘Master-Sir’ mentality and become assertive and rights-conscious citizens that this republic needs.

It is only then that such a citizenry will be sufficiently educated to elect the best possible candidates in whom to repose their aforesaid sovereign power; this remains the vicious cycle that no one appears to want to change!

This is the very concept that (I believe) the President was trying to impress upon his newly-appointed Cabinet of Ministers and to that extent, well said indeed Mr. President; someone needed to have said it and who better than the Head of Cabinet and the first citizen of this republic himself!

I realise that already there are criticisms that the numbers of the new Cabinet are excessive and that this is against the assurances given previously; this however is a theme for a different discussion, since the matter under consideration at present revolves around this statement by the President (which I arbitrarily quote from the media): “…Don’t think that it’s a big thing to be showing off, driving around in fleets of vehicles… you may think so, but those who are watching it (the people) think otherwise… reduce wastage because you have been appointed to serve the people, and that is what is expected of you.” Well said!

Cabinet – Article 43

The term ‘Cabinet’ originates from a Westminster system of government, used to refer to a small room in which a few would gather to consult; based on the jumbo figures we see now we can safely leave that definition to the history books!

However, the Sri Lankan Constitutional provisions (A 43) set out that the Cabinet will be charged with the “direction and control of the government” and that the President shall be its head. Whilst these provisions hold the Cabinet “collectively responsible,” Article 42 also makes the President responsible, both to Parliament (and therefore by necessary implication to the people); thus assuring that ‘trusteeship’ of the people’s sovereignty is temporarily reposed in these institutions.

Chapter VI of the Constitution sets out legal parameters referred to as “the Directive Principles of State Policy” and states that it “…shall guide Parliament, the President and Cabinet… in enactment of laws… and governance of Sri Lanka (to establish) … a just and free society…”

Since I have laboured this point before at length at several fora, I will briefly re-state the principle, that the ‘Appropriation Bill’ (Budget) represents the people’s approval of planned expenditure by the Executive, which affords ‘legality’ to such expenditure; the failure of which must necessarily therefore be answerable to the people.

In this backdrop let us consider some of these ‘directive principles’ that the Government must follow in formulating policy; on this occasion ‘the Budget’ to govern us and how consonant it is with the requirements of these principles.

Article 27 (2) sets out in quite comprehensive detail some of these objectives that the Government must procure for us (quoting only some of them relevant to my theme):

(b) – secure a social order in which social, economic and political justice shall guide all institutions of national life;

(c) – for all citizens adequate standards of living for themselves and their families, including food, clothing and housing and also full enjoyment of leisure, social and cultural opportunities;

(e) – equitable distribution of material resources amongst all citizens, so as to best subserve the common good;

(f) – to establish a social order in which means of production, distribution, etc., are not concentrated in the State or in the hands of a privileged few, but dispersed amongst and owned by all the people of Sri Lanka;

(7) – eliminate economic and social privilege and disparity and the exploitation of man by man or by the State;

(8) – the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.

Whilst the above duties bind the Cabinet and Government, a reciprocal provision of sorts is set out at Article 28(d) casting a positive duty upon every Sri Lankan to preserve and protect and to combat the misuse and wastage of public property (which must obviously include public monies)!

It is important to note that these are not some wild fantasies of my mind, nor indeed the dreams that many of us are bound to share and hold dearly for this land that we love so much; I have simply repeated what our Second Republican (1978) Constitution, our supreme law, sets out as principles that must be assured by our Government when they make laws (such as the ‘Appropriation Bill’ or ‘Budget’) on our behalf.

Since I am not an economist, as to whether this 2011 Budget (the law) has been framed in accordance with these guidelines or not, I cannot comment on with any authority and therefore I do hope that someone with better knowledge in this area of fiscal policy and public expenditure will!

Justiciability of these principles (and of public expenditure)

These are two somewhat distinct issues and I shall therefore deal with them separately; the former first in some detail, and the latter less so, since I’ve written and addressed this point rather exhaustively over the last three to four years.

The Constitution itself at Article 29 seems to impose a clear bar to any of the above provisions (principles) being enforceable in a Court of Law; this is the plain reading of it and at first glance therefore it seems to fail the test of justiciability (or the ability to be enforced legally).

However, by some very progressive thinking, our Supreme Court has gone beyond this Constitutional obstacle and overcome what I believe it saw as a bar to the absolute sovereign rights of the Sri Lankan citizen who was its ultimate repository!

nIn 1987 in the matter of the 13th Amendment, Court held that these principles required implementation by legislation;

nOnce again in 2000 (in the Bulankulame case) Court upheld the argument that the protection of law afforded to citizens was inseparable from these duties and obligations of this Chapter;

nIn 2002 (the matter of the 19th Amendment) their lordships were crisp and clear to hold that the sovereign power of this State continued to be reposed in the citizens and all organs of Government were only custodians of this for a time being;

nThis principle has been advanced much since then, particularly over the last few years and thus the absolute sovereign right of the Sri Lankan citizen as opposed to the temporary custodian of it in the form of Government has been clearly established.

Whether the Sri Lankan citizen knows about this, acts upon it or asserts this right is an entirely different question; for which I for one do not have an answer as to why not!

Can the people question the Government? If so, will they?

The latter point is, how will the judicial system react when public expenditure does not meet its intended objectives, or vice versa where a particular expenditure of public funds is manifestly uneconomic?

Starting with the Pergau Dam affair in the UK, consecutive decisions in administrative law both overseas as indeed here have now established that although “the policy argument” was still quite valid and is an area that judges would tread on with much caution; where it could be established that the Government had clearly violated “the trust” reposed in them by the citizen to formulate policy legally; courts would step-in and correct such mistakes for the good of the public.

Thus, uneconomic spending has been equated to be a valid ground for judicial review, setting up the principle (referred to as the ‘Pergau Principle’) that “…the proposed spending by the executive of monies voted by Parliament is unlawful if, in relation to its intended objectives, no reasonable minister could think that it constituted value for money…”

Once again as to whether the Sri Lankan citizen would think so, how many who are placed on the necessary platform to educate them would do this (such as politicians or the popular media) and if indeed our citizens take that step and mount the challenge judicially, how our judicial system would react to this; these are all questions of an entirely different nature, those relating to the realities that exist at present; but I have said so before and I dare say it again – I continue to be an idealist!