Constitutional systems and their workings



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By Neville Ladduwahetty


Sri Lanka is engaged in the great task of constitution making for the fourth time in its 58 year journey since independence. During this period Sri Lanka has experienced both Parliamentary and Presidential systems of Government. It is now debating where to go next.


The need to abolish the current Presidential system was an election pledge. The primary reason for its appeal was because the Presidential system by its very nature was seen as one that tempts abuse of power and no one up to now has demonstrated his/her ability to resist such temptations. The Parliamentary system, albeit seen as being less so, is no better when it comes to exercising indiscriminate power. Therefore, whatever the system, at the end of the day, it is how powerful individuals exercise power that makes a system democratic or autocratic.


Evidence of unilateral decisions and abuse of power by Prime Ministers under Parliamentary systems or Presidents under Presidential systems abound. Therefore, whatever system is formulated by the Constitution makers, the most vital feature of a Constitution should be the strength and ability of the checks and balances to curb indiscriminate exercise of power by the Executive, under whichever system.


These checks and balances should apply to internal issues as well as external relations and agreements. The practice in the past has been for individuals in powerful positions to commit the country indiscriminately without having the capacity or foresight to know the unintended consequences of their actions. Therefore, the checks and balances should be such that it should not be possible for a few individuals in positions of power to commit the country without the approval of Parliament, regardless of whether they relate to internal or external issues.


EXTERNAL COMMITMENTS


Successive Governments have jeopardized Sri Lanka’s national interests without due process. For instance, were any of the contents of the 1987 Indo-Lanka Accord with its Annexure along with the exchange of letters between the Prime Minister of India and the then President of Sri Lanka tabled in Parliament, despite the Constitutional need to do so under provisions of Article 157 of the 1978 Constitution? And if the Constitutional provisions in Article 157 were not adhered to, what force would the Accord have in law?


Article 157 states: "Where Parliament by resolution passed by not less than two-third of the whole number of Members of Parliament (including those not present) voting in its favour, approves as being essential for the development of the national economy, any Treaty or Agreement between the Government of Sri Lanka and the Government of any foreign State for the promotion and protection of the investments in Sri Lanka of such foreign State, its nationals, …such Treaty or Agreement shall have the force of law in Sri Lanka and otherwise than in the interests of national security no law shall be enacted or made, and no executive or administrative action shall be taken, in contravention of the provisions of such Treaty or Agreement".


In view of the provisions in Article 157 the co-sponsoring of the UNHRC Resolution without the required 2/3 approval by Parliament is another instance of unilateral action with serious national and international implications. If the resolution was tabled in Parliament the role of international participation in the national inquiry processes would have been established by 2/3 of the Parliament instead of contradictory statements from the twin pinnacles of Government.


Another instance of how Constitutions work relates to Sri Lanka’s relations with China. The need of the former Government to fast-track the development of the economy caused it to first focus on developing its infrastructure relating to power generation and transport. This need serendipitously meshed with China’s need to develop its sea and land connectivity with the rest of the world both for its imports and for the export of its finished goods. The geostrategic significance of Sri Lanka in China’s world view coupled with the confluence of mutual interests caused China and Sri Lanka to engage with each other. This engagement appears to have been carried to a point of overextending the capacities of Sri Lanka to meet the costs of the development drive.


The engagement of China in Sri Lanka culminated in the $ 1.4 Billion Port City Project reported as the largest Foreign Direct Investment in Sri Lanka. Setting aside the obsession to create a financial hub which invariably ends up being a hub for unlawful financial activities as demonstrated by every such hub in other parts of the world, the arrangement worked out entailed granting a parcel of land outright to the developer; a practice that hitherto had never been adopted by Sri Lanka. What is even more startling is the fact that the arrangement with the developer was not known to Parliament.


This project was ridiculed by the present Government during the run up to the Presidential election to the extent that firm declarations were made that if returned to power the project would be stopped forthwith. Work on the project was thus suspended. The cost of the stoppage is reported to be $125 million. This, coupled with loan payments due to China was negotiated by a team led by the current Prime Minister. The arrangement that they are reported to have come up with is to convert the land given on freehold into a 99-year leasehold in the Port City project, and to swap the equity in Hambantota Harbour and Mattala Airport in exchange for the loan or part of the loan. The reported cost for the Habantota Harbor was $426 million and Mattala Airport $ 190 million totaling $616 million. Since the debt to China far exceeds this amount (reported to be $18 Billion) no one knows what proportion of the equity in these two projects is part of the deal, and where the reported 1000 acres of land for an industrial zone fits into all this. At the end of it all, the question is whether Sri Lanka is worse off than it was before and if so, is it the cost for humiliating China?


The bottom line in all these deals is that no one including the Parliament is aware of the fine print associated with them. The lack of transparency is regardless of the regime and has nothing to do with whether the system is Presidential or Parliamentary. The explanation offered is the need for secrecy during the deal-making stage. Notwithstanding this need, there is also the compelling need for the public and their elected representatives to know what they are being committed to well before actual commitment. Such right of information is fundamental to the right of citizens because at the end of the day it is they who are forced to bear the consequences of commitments made by their leaders.


Discussions with India on topics such as the Indo-Sri Lanka Economic & Technology Cooperation Framework Agreement (ETCA), the much talked about bridge connecting India and Sri Lanka and the construction of 65,000 houses are equally shrouded in secrecy. Such secrecy is possible because of the absence of an effective Opposition to compel the Government to disclose facts as required under provisions of "Right of access to information" contained in Article 14A of the 19th Amendment to the Constitution. Despite such Constitutional provisions, the fact that a Government could make deals reflects the level of impotency of the systems, whether Parliamentary or Presidential. The task therefore for the Constitution makers is to incorporate punitive checks and balances to prevent Governments from acting without regard to provisions in the Constitution.


INTERNAL COMMITMENTS


Internally, we are told that Sri Lanka is governed by a National Government in keeping with the Constitution. Whether this is so or not, such a categorization enables the Cabinet to be increased with the approval of Parliament. The particular alignment of political parties that enable the Government to call itself a National Government also has created an entity called the Joint Opposition made up of 50 plus Members of Parliament that claims it is the de facto Opposition while a 16 Member political party is recognized as the de jure Opposition. This is the state of affairs currently in Sri Lanka.


Since the Joint Opposition is not officially recognized as the de jure Opposition it is not in a position to exercise its rightful role as an Opposition should in a functioning Democracy. Consequently, it is not in a position to effectively demand that the Government acts according to the provisions in the Constitution, in particular, the exercise of the provisions of Article 157 relating to Treaties and Agreements with foreign States and to disclose arrangements it has worked out to meet debt commitments to sovereign States such as China. Under the current arrangements the Franchise of the voter is seriously violated because his/her expectation at a minimum was that the party he/she voted for would either form the Government or be the Opposition; certainly, not act as a de facto Opposition.


As to the basic structure of the Sri Lankan State we were a Unitary Republic under a Parliamentary system from 1971 to 1977. We remained so under a Presidential system from 1978 to 1987 at which point the 13th Amendment to the Constitution was introduced. When the 13th Amendment was challenged in the Supreme Court, 5 of the 9 Judges ruled that Sri Lanka was a Unitary Republic despite 5 of the 9 Judges of the same Supreme Court stating that the Statutes passed by Provincial Councils "cannot in law be held to be subordinate legislation’.


Notwithstanding this ruling, some claim that Sri Lanka is quasi Unitary and others claim that Sri Lanka is quasi Federal similar to India. The last claim is more credible than the rest because the 13th Amendment is modeled on the Indian system. Despite the uncertainty as to the basic structure of the State, the stark fact is that Sri Lanka is not Unitary the way it was until the 13th Amendment became part of the Constitution. There is much apprehension as where it would be going in time to come. However, it could be stated with certainty that the Republic of Sri Lanka being Unitary would appear in appropriate places in the Constitution, but operationally it would not be Unitary as it was prior to 1987. Therefore the Republic of Sri Lanka would be Unitary only in name, but not in fact.


CONCLUSION


The Constitutional Assembly and their advisors would be fully engaged in the daunting task of Constitution making in the months ahead. If the goal is to fulfill the election pledge to abolish the Executive Presidential system the task would be reasonably straightforward. In the meantime, Sri Lanka is supposed to operate under a Presidential system. However, in its operations, Executive action is shared between the President and the Prime Minister perhaps because of the prevailing balance of political power between the two major political parties. How Constitutions could accommodate such political imperatives is the challenge for the Constitution makers.


Recognizing that Constitutions cannot cater to every possible political formation, how they operate in practice depends on the personalities of the political leaders. The expectation of the nation is that Constitutions are not tailored to suit the ambitions of any prevailing leadership as it has been in the past. The nation’s expectation instead is that whatever the system, that there are sufficient checks and balances to curb the abuse of power and that there are provisions to compel openness and transparency in its workings without which the interests of the People cannot be served.


Perhaps the reason for Constitutions in Sri Lanka to change so often is because they were tailored to suit the ambitions of those in power. On the other hand, when Constitutions reflect the basic character of the State, its People, and its civilizational values, Constitutions become durable. Such durability requires that the Sri Lankan State is Unitary and the political system is Presidential, because it is only a combination of the two that would be able to meet both internal and external challenges as demonstrated by Sri Lanka’s own history.


Sri Lanka has reached a point where her territorial integrity is being threatened if it has to swap any of its equity in its national assets in the South to pay off debts to China. In the meantime, Sri Lanka’s territorial integrity is being threatened in the North and East by the proposed bridge and tunnel connection with India. It appears that Sri Lankans would have to be satisfied with the Megapolis in the West with a financial hub which would end up being a dry cleaning hub for soiled money.


In view of the trends cited above the Constitutions should be structured to ensure the inviolability of the territorial integrity of the Sri Lankan State at all costs. In this regard, there must be provision to ensure that the territorial integrity of the State cannot be compromised without the consent of the Peoples of Sri Lanka at a National Referendum, in addition to a 2/3 approval of Parliament.


Constitutions by themselves do not mean much. Constitutions come alive in the manner they are exercised by the Executive, monitored by the Legislature, and interpreted by the Judiciary. Therefore, the task for the Constitution makers is to make the Constitution an organic living code in its workings if the interests of the People are to be served, the foremost of which is the integrity of the State, which has been zealously protected over the centuries.


 
 
 
 
 
 
 
 
 
 
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