There is widespread chatter about changes to the fundamental laws (including the Constitution) regarding governance in this country and other fundamental laws. The evidence is no more clear than from the policies espoused by the common opposition candidate for President of the Republic: change the Constitution and end corruption (dushanaya) and state terrorism (bhishanya). These are exactly the same main planks as in the political platform of Chandrika Bandaranaike Kumaratunge, in 1994, when she was the successful common opposition candidate for election as President of the Republic. What good did her victory do to change institutions? Our current wails arise from the progressively pervasive perversion of these institutions, her grandiose claims notwithstanding. Minister Dilan Perera now ‘promises new laws to battle bribery and corruption’. I contend that new laws may help but that the tendency to pervert public institutions for private gain is so persistently pervasive in this society that a radical change in attitudes is necessary to make any institution work for public purposes.

If there were such change in attitudes current institutions are more than adequate to bring about the public weal. (See the way the 800 year old Magna Carta remains to date the foundation on which to stand against arbitrary arrest, how one simple sentence in Section 8 of Article I of the US Constitution has become the foundation of the mass of antitrust legislation and adjudication). I contend that with current attitudes, no matter what the law, politicians and bureaucrats will so pervert the purpose of institutions that we will be in square one from where we had started. Then why bother with all this charade about changing laws? Set about to change attitudes. The somnolent university community, pliant intellectuals bought by lucrative contracts or cowed down by fear, bhikku sangha who came into establish dhamarajya and have done virtually nothing except achieve their own personal ends, artists who are both bought up and under threat of end to their careers or life, university students who are misled by scheming politicians to further their own ends, commonly poorly read journalists ( who mouthed such idiocies as vishvaya vismita kala vijayagrahanaya) in both print and electronic media, and trade unions who serve as handmaidens to political parties, all have work here. Unless they pull together now, they and the public soon will hang separately, later.

I used the term institution in a specialized sense. Let me explain. "Institutions are the rules of the game in a society or, more formally, are the humanly devised constraints that shape human interaction…Institutional change shapes the way societies evolve through time… Are institutions formal or informal? ..both…. Institutions may be created, as was the United Sates constitution; or they may simply evolve over time as does the common law.’ Douglass C. North in Institutions, Institutional Change and Economic Performance. The Constitution of the Republic of Sri Lanka is an institution and the Presidency, Parliament and the Judiciary are organisations that work these institutions. The Monetary Law Act is the institution and the Central Bank of Sri Lanka is the organisation that makes that institution work. Organisations are worked by people. The Central Bank implements the Monetary Law Act with those appointed to the Monetary Board and to run the Bank day to day. There is no reason why people who run organizations, should have the same objectives as those intended by the people who set up the institutions. They may and do often differ.

Let me give a gross example: customs duties are imposed to collect revenue for government. However, crooked customs officers may and often do release goods collecting duties (say, 12 percent of CIF value) at a rate lower than that stipulated by law (20 percent of CIF value) denying government revenue. He will gain for himself and the importer will gain so long as the total paid by the importer is less than(20 percent of CIF value) of what he would have had he paid the total legally due to government. There are incentives to make the objectives of the law and the behavior of the administrator compatible with each other. There are rewards such as a percentage of the total revenue collected above a specified minimum, promotions for honest officers and punishments for those found doing wrong. However, where an entire administration including those at the very highest levels are crooked, there is very little that this kind of incentives can accomplish. The rewards of corrupt behaviour are so enormous compared to legitimate earnings. When these objectives diverge, the public purpose of the institutions is subverted. I propose to take up a few institutions and demonstrate how they have been subverted for private ends against the public weal.

Take Chapter XVII Finance of the 1978 Constitution under which we have been governed for the last thirty years. It begins ‘Parliament shall have full control over public finance.’ Article 3 of the constitution declares‘ In the Republic of Sri Lanka sovereignty is in the people and is inalienable.’ Article 4 reads, ‘The Sovereignty of the People shall be exercised and enjoyed in the following manner:- (a) the legislative power of the People shall be exercised by Parliament, consisting of elected representatives of the people and by the People at a Referendum; (b) the executive power of the People,….. shall be exercised by the President elected by the people;….’. Read together, it is evident that control over public finance is a legislative function of government, as it is exercised by Parliament; it is not a part of ‘the executive power of the People ….exercised by the President of the Republic elected by the People’. Therefore, the entire drift of the Constitution is to deny the Executive Branch authority over Public Finance.

That spirit of the Constitution must prevail over article 44 (2) ‘The President may assign to himself any subject or function……not assigned to any Minister under the provision…..;’ The President may not do so because he cannot perform legislative functions. Unlike in the US Constitution, the President is not a part of the legislative process here: under article 32(3), the President is denied the right to vote in Parliament; under ‘Article 80 (1) …… a bill passed by Parliament shall become law when the certificate of the Speaker is endorsed therein.’ Yet, for some 20 years we have had the President of the Republic as the Minister of Finance and so subverted the purpose of the Constitution. No amount of legislation can prevent people acting in bad faith to subvert the law for their personal benefit.

The Supreme Court in a number of decisions has virtually nullified the effect of Article 99 (13) in the 14th Amendment to the Constitution: ‘Where a Member of Parliament ceases, by resignation, expulsion or otherwise, to be a member of a recognized political party or independent group on whose nomination paper…. his name appeared at the time of his becoming such Member of Parliament, his seat shall become vacant upon the expiration of one month from the date of his ceasing to be such member.’ The intent of the law could not be made clearer. Yet in decision after decision the Supreme Court has held that a Member of Parliament who had defected to Government from the Opposition and vice versa had ‘not resigned, expelled or been otherwise ceased to be a member of that party’. The Supreme Court was right to undo those decisions insisting that political parties, like all other citizens, must follow due process in making decisions that affect others. However, the perversion of the purpose of the law is clearer than water in Lake Baikal. It is driven home to you forcefully, when you read the law regarding Parliamentary elections passed by Parliament. A ballot cast by a voter is invalid unless it is marked for a political party even when the preference for a candidate is marked correctly. A valid vote is one cast by a voter only when he/she marks a party on the ballot paper. It is invalid if no party is marked no matter whether there is a preference marked. That scores of Members of Parliament have deserted the parties as members of which they were elected and have sat in Parliament for years is a clear perversion of the purpose of the Constitution.

It has been reported in the press that Members of Parliament, except two, who joined the government some years ago and were considered not to have left the United National Party, had more than a months ago joined other political parties. One has in fact formed a new political party. As you cannot be at one and the same time a member of the UNP as well as of the SLFP, two distinct recognized political parties mentioned in the ballot paper, these Members must be considered to ‘have ceased to be a member of the political party…on whose nomination paper….his name appeared. ‘…(H)is seat (should) become vacant upon the expiration of a period of one month from the date of ceasing to be such member:’ Then why are these Members of Parliament still sitting in Parliament? Why are they not ‘…liable to a penalty..’ in terms of Article 100 of the Constitution? That is a measure of the perversion of the purpose of the law in this land. Article 3 of the Constitution lays down that ‘Sovereignty includes ….the franchise.’ Then failure to unseat MPs who flout section 99 of the Constitution and sit in Parliament is an affront to the basic foundations of the Constitution.

By law made in Parliament, policy making in education is a matter for the National Education Commission and the President of the Republic. The admission of students to schools is surely a matter for the Executive Branch of government. However, pursuant to a case brought before the Supreme Court, where there had been an infringement of a fundamental rights of a parent, the Supreme Court went on to approve a scheme for admission to Grade I in schools, submitted at its request by the Executive Branch of government. Surely, this was a perversion of the separation of powers between the Executive and Judicial Branches of government.

Under Article 41A (5) of the Constitution (in the 17th Amendment), ‘The President shall upon receipt of a written communication of the nominations under sub-paragraph (e) or sub-paragraph (f) of paragraph (1) of this Article, forthwith make the respective appointments’. To a layman, the President has no alternative but to appoint the nominees forthwith. Yet the President has not obeyed such clear instructions in the Constituted and has so subverted the purpose of the fundamental law of this land for his advantage.

Persistently ...

There can be little contention that the 1978 Constitution, the fundamental institutional basis of government in this country, is a monstrosity inflicted on the people by themselves. There were few protests, except by political parties on the left and some who spoke for ethnic minorities, against this construction. Many intellectuals and university men were closely associated with its drafting and no one publicly protested against it or resigned from their assignments, in protest. I have not read any publications in which journalists protested against these laws. There were no worthwhile public protests. Clamour to change the Constitution are raised at election time by parties and persons in the Opposition to be conveniently forgotten once elected to power. There is little organized public protest because of the deadening heavy hand of government all over our society.

No matter what your vocation, you are at the mercy of government in this country. The murder and abduction of journalists is the most gross. Many other journalists have been silenced by less terminal methods. A singer or actor loses contracts with government media institutions if he runs the wrath of government. A newspaper is closed down on trumped up charges which, after several years, may turn out to be false. Someone completely unfit may be rewarded with appointment to the post of Vice-Chancellor of a university in return for favours done to government. There are thousands of other positions in the hands of government which are used to bribe people into silence or open support. A license to do some legitimate business may be revoked, if the owner does not contribute to election funds of the party in power. Celebrated sportsmen and women may have no option but to appear on public stage in support of a ruling President. These are the myriad of ways in which fundamental institutions (laws) of the country have been subverted by politicians and bureaucrats in power. In a society like ours, no matter what the law, it will be subverted when people in power profit from such.

Protest and protest at every turn