The Three Crossroads – Part II
By Austin I. Pullé –
Austin I Pullé
The Second Crossroad: The Amendments Factory
The usual suspects have proposed a draft 22nd Amendment to the Constitution. If one asks, how does this proposed amendment contribute to making Sri Lankan society a fairer and more equitable society, the answer has to be “not in any way” The draft, with its pretentious deployment of toothless fourth branch institutions infested with parliamentarians is irrelevant to the needs and aspirations of the People. These amendments do nothing to curb the excresences of perks of parliamentarians and will not relieve the entropic pressures on a document that should be consigned to the dustbin.
It should be remembered that this abhorrent lot of MPs which includes a convicted murderer, extortionist and similar worthies who raised their hands to support the dictatorial 20th Amendment will be supporting the 22d Amendment. They have long forfeited their right to make constitutional amendments. Besides there is a brand new constitutional draft, typically withheld from the Sovereign People, that will supposedly bring freedom, prosperity, and peace to the country.
So what is the need for an amendment? The proposed amendment will do nothing to prevent children of parliamentarians being appointed as diplomats, will do nothing to eliminate the outlandish perks and privileges of the MPs, and to stop state resource plunder. What next? A cricket stadium in the Sinharaja Forest, a Chinese harbour in Arugam Bay, and an airport in Wilpattu? The waste paper basket is the only proper receptacle for the proposed 22A.
Third Crossroad: True and Meaningful System Change
“System Change” is the anguished demand of mostly everyone. The system change they demand is not for a Hitler but for governance and accountability that acknowledge that all three branches of government are delegates of the sovereign People. Will system change be easy? Will an existential struggle be easy? The first obstacle is the path dependent form of electioneering. Our politicians were way ahead of the Brexit propagandists and the MAGA promoters in fine tuning dog whistles at the “Left Behinds”. The counties that Biden won account for 74% of America’s GDP but because of the dysfunctional electoral college system, he won the presidency by a mere hundred thousand votes distributed in three battleground states. The “Left Behinds” in Sri Lanka can be counted on to oppose bitterly any proposal to make equality among all citizens a reality. Other bitter opponents of meaningful reforms are professional groups, professional politicians, trade union mafias in the CEB, Ports and other areas of patronage employments, the professional boot lickers and brown-nosers will fight tooth and nail at what they correctly perceive as serious threats to their rice-bowls. But unless these enemies of the common good of the people are confronted and vanquished, the people will be fooled again into thinking that there will be a new dawn. An amendment, if it is to be worth the paper it’s printed on, must address and deal with the following:
1. Law, Justice and a Functioning Legal System
a) Three of the best judges in recent memory were Justice George Samarawickrema, Dr. A.R.B. Amerasinghe, author of the ignored book on judicial ethics, and Justice Mark Fernando. Had they not been appointed by a president, the decisional law would have been poorer and the decline in judicial ethics may have begun much earlier. The quality of other judges, including Jaya Pathirana, appointed by the executive has been, to put it mildly, uneven. The present system of appointing most judges from the minor judiciary or from the attorney general’s office can result in unseemly scrambles for promotion. Allegedly, the temptation to render judgments in favour of influential persons, or curry favour with a disreputable head of judiciary in a divorce proceeding or the government has not been successfully resisted.
In England, prime ministers are mindful of the importance of a blue chip judiciary. John Major appointed Tom Bingham as CJ despite misgivings about the latter’s left of center views. However, tradition and respect for convention were regarded as not the answer to preventing poor appointments. The result was the establishment of the Judicial Appointments Commission “JAC”). As a perusal of the JAC website shows, the JAC selects judges on merit and any lawyer can apply for a judicial position. The brilliant Lord Sumption made a transition from the most successful barrister in England to the UK Supreme Court through this mechanism.
Sri Lanka will benefit from the establishment of such a commission. A Sri Lankan JAC will put an end to the alleged toadying whether to a corrupt chief justice or president and will encourage good lawyers from the private bars in Colombo and the provinces to apply. This will be a good development in quality control. The JAC should also be charged with administering they system of granting the credential of “President’s Counsel”, a credential that does not mean much given the political considerations that largely influence the grant of this honour.
Ridding the country of part of the contempt of court law relating to scandalizing the judiciary is an imperative. Delirious at the practice of being addressed as “your lordship” even outside court, some judges have forgotten that they are simply the servants of the People under Article 4. Sri Lanka should follow the practice of advanced countries, where judges are simply addressed as “Your Honour’. Likewise the practice of addressing uncouth goons as “Your Excellency” must the changed. “Mr. President” is the way the most powerful man in the planet is addressed. No “Your Excellency” for the semi-literate buffoons of the future who are in any case are mere servants of the sovereign People.
b)There is a crying need for a fearless multidisciplinary board to supervise and investigate professional ethics complaints. Widespread anecdotal evidence shows that the self-regulation of the learned and accountancy professions has not operated to protect clients and consumers. Sri Lankans abroad regularly complain that if a lawyer in their countries provided the quality of services available in their countries, those lawyers would have been the subject of severe sanctions, if not disbarment, for breach of ethics. If affluent clients are treated with disdain by lawyers, how would poor litigants be treated? A multidisciplinary board established by the Constitution to receive and act on professional ethics complaint is an urgent necessity.
Sri Lanka also needs to replicate legislation like the Singapore Legal Profession Act. Professor Jeffrey Pinsler of the National University of Singapore, an expert on legal ethics, could be invited to draft the legislation that will free hapless litigants and patients from the arrogant, unethical, and dismissive way lawyers and doctors treat their clients.
2. The Legislature
Confidence in Parliament is at an all time low. Some necessary reforms are as follows:
– Sri Lankans are entitled to have their country respected and honoured by the international community. Worldwide media publicized the assaults and mayhem engaged in by a feral group of parliamentarians when they flung chilli oil and bibles at the Speaker of a previous parliament. The world laughed at the barbarians, the local cringed, and life went on without any retribution. High time to put a stop to this nonsense. Both a code of conduct for ministers and one for members of parliament is an urgent necessity. An independent body similar to the Independent Parliamentary Standards Authority set up by law in the UK will ensure that decorum and decency will be restored to proceedings and conduct by MPs. Conviction by a trial court should immediately result in a convicted MP from participating in parliamentary proceedings.
– Term Limits: No one who has been in Parliament for more than 15 years cumulatively will be eligible to stand for election. If the 15 year period ends while the person is in parliament, his term will automatically end. A successor may not be a relative.
– Retirement Age: 70 years.
– Emoluments to consist only of a salary reduced by the amount of days of non-attendance in the chamber. No duty free automobiles, pensions, utilities payments, luxury housing and security details. Traffic stops to allow a convoy of ministers to move should be disallowed.
– An unambiguous cap on the number of cabinet and state ministers.
– Intra-party democracy with no leader allowed to head his party for more than 10 years. Replacement should be by secret ballot by a convention consisting of heads of grassroots organizations and sitting members of parliament.
– Anyone should be able to contest a seat. Nominations to be awarded by a select nomination committee consisting of a quota of grassroots heads and MPs.
3. A Secular Modern State
The outsize and negative role of the Buddhist clergy in the political affairs of Sri Lanka should be obvious to all. The nadir of this influence was the power exercised by the powerful businessman-monk who ordered the assassination of one of the most educated leaders of the country and the group of monks who prevailed upon this leader to tear up a pact that would have established a very diluted form of devolution in the form of the district development councils. The historical results of this hysterical demand are the white elephant provincial councils, an Indian invasion, and a decades old civil war. The recent allegation by a former president that a monk badgered him into granting a pardon to a brutal murderer of a teenage girl in return for money, if proven to be true, should remove any doubt about how the teachings of the Buddha have been polluted by the demands and behaviour of some members of the clergy who have managed to grab the headlines. It is hard to find anyone who can give an account of the precise content of the constitutional provision giving foremost place to the Buddha Sasana. As many eminent Buddhist commentators have remarked, the Buddha Sasana does not need safeguarding by a Sri Lankan government. A secular constitution that removes state patronage of Buddhism and encourages the clergy and laity adopting a lifestyle that makes the country a shining example of a Buddhist society will be far more effective.
4. Good Governance– An Enforceable Fundamental Right
Given that a fair majority in the legislature is selected from the most worthless and infamous of Sri Lankan society, it is no surprise that most provisions of the constitution are breached and fundamental rights ignored. The sovereignty of the People, enshrined in Article 3, is imperilled when the heavy machinery of repression deployed to quell protests is withdrawn only because of protests by foreign ambassadors and international organizations. The Prevention of Terrorism Act must be repealed in toto..
All the three branches of government are nothing but delegates of the People pursuant to Article 4 of the Constitution. Citizens are entitled to have officials comply with the constitution. Accordingly, there must be an enforceable fundamental right to good governance. A breach of collective cabinet responsibility must entitle a citizen to petition the court to declare the offending minister expelled from the cabinet. Likewise, the untrammelled power to ignore constitutional provisions relating to the use of the National List. Nepotism and the abuse of the National List appointments should be eliminated.
5. Post-Facto Review of Legislation for Constitutionality and Judicial Review of Administrative Action
The present system of pre-enactment review of the constitutionality of bills should be replaced by the system of post-facto review that prevailed until the first republican constitution. The ripeness doctrine exists because courts are ill-suited to decide abstract issues. They are best able to apply constitutional principles when there is an actual controversy presented. The present system of pre-enactment review invites lawyer and the courts to speculate in ways that could be limited by the imagination of the courts and the lawyers. If there is an actual case and controversy, the court can focus on the application of the constitutional provision to the facts. The analysis provided by such a focussed attention is far superior to the present system.
Early in his presidency, the previous occupant, whose governance style was to throw an enraged tantrum and abuse and threaten, proclaimed to cowed down government employees that any verbal instruction of his should be treated as a government circular! Someone aggrieved by this verbal presidential circular could bring a fundamental rights action but there is no guarantee that she would be allowed to proceed. A much better alternative is to re-invigorate the jurisprudence of writs such as the writs of quo warranto and mandamus which appear to have fallen into desuetude.
6. Elimination of the Provincial Council System
The provincial council system is the most obnoxious result of the Indo-Lanka Accord. These councils impose an unaffordable layer of government and bureaucracy on the treasury and do little to reduce the burdens of the average citizens. As the Shrek look-alike now in the cabinet who was convicted for extortion while being a Chief Minister shows, more paperwork and licenses mean more demands for bribes. A Chief Minister of the Northern Province did very little for the people being in a trance reciting his genocide mantra. The Indians must be persuaded that the dire economic situation of the country cannot afford to keep these set of white elephants in operation, and that provincial councils must be eliminated.
7. Foreign Ownership of Land in Sri Lanka
Coming down the pike will be a demand from the IMF and the World Bank that, as a condition for rescue, Sri Lanka abolish restrictions on foreign ownership of land in Sri Lanka. When this writer once attended an “Ease of Doing Business” meeting convened by the World Bank in Singapore, he found that Sri Lanka was penalized for imposing a tax on foreign ownership of land. The irony was that the worthies who compiled the index in the Bank had not reminded themselves that Singapore itself which they ranked No 1, as well as all other Asean countries, do not allow foreign ownership of land.
A constitutional amendment barring long leases and outright sale of Sri Lankan land to foreigners could have avoided the humiliating 99 year Hambantota lease and the sale of Colombo Port City land. The only way to deflect the battering ram that would be wielded by the donor institutions is to enact this urgent constitutional amendment.
8. The Management and Supervision of State Owned Enterprises (“SOEs”)
Mismanagement, patronage appointments, and corruption bleed dry the Sri Lankan treasury. A single SOEs management board of independent and qualified business persons and professionals should be established with an explicit mandate to eliminate the ills of SOEs. This SOE management board must be must be authorized to prevent patronage appointments and even to privatize some SOEs or enter into management contracts relating to the SOEs. A strong whistleblower system based on bounties for rewards must also be put in place.
Sri Lankans born just after independence as well as the current generation have united in disgust and despair over the ruin that has befallen the country. Unlike those who are stoned out of their minds by the opium of ethno-national madness dished out in generous quantities by the well-known culprits, these people has opted to take at last the road less travelled and will discover like Robert Frost “that has made all the difference.” Unlike the Lotos Eaters of Tennyson’s poem, the present group associates with his line in “Ulysses” and is determined “To strive, to seek, to find, and not to yield.” Sri Lankans should never forget the debt they owe to the brave men and women who sacrificed so much in their quest for system change. Their struggle should not be in vain, their heroism never forgotten, and their sacrifices always appreciated by a grateful people.
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