Ceylon Today Constitution

4th Constitution

03 January 2017

Sri Lanka's Second Republican Constitution of 1978 has been subjected to 20 amendments thus far in its short span of 38 years up to now.

In contrast, according to Wikipedia, the 227-year-old US Constitution in the world's 'greatest' democracy has been subjected to 27 amendments thus far since its adoption in 1789, i.e. 13 years after the USA obtained its independence from the UK in 1776. Another six more amendments are in the pipeline, waiting ratification from the world's largest democracy's 50 States, to become law.

Whereas the USA's Constitution is 227 years old that of Sri Lanka's, in its short post independence history of 68 years (now going on its 69th), has had been 'bequeathed' with three Constitutions thus far.

Sri Lanka, or Ceylon, as it was then known, post independence, or more precisely, on the eve of independence from the British, had its first 'independent' Constitution, known as the Soulbury Constitution, which was adopted in 1947 – a year before the island achieved its independence, i.e. on 4 February 1948.

Soulbury was sent from London in 1945 to help draft 'independent to be Ceylon's' first Constitution, thereby repealing the Donoughmore Constitution of 1931, which gave universal adult franchise to this, then British colony. Sri Lanka was only the second country in Asia (after Japan) to obtain universal adult franchise. The Soulbury Constitution was largely drafted by Sir Ivor Jennings, a constitutional lawyer and a Vice Chancellor of the University of Ceylon, as the University of Colombo was then known.

Herwald Ramsbotham Soulbury ultimately ended up being the second Governor General of independent Ceylon, serving in that capacity from 1949 to 1954. His predecessor was Sir Henry Monk-Mason Moore and his (Soulbury's) immediate successor was Sir Oiliver Goonetilleke.

Meanwhile, the island's second Constitution was the First Republican Constitution of 1972, repealing the Soulbury Constitution of 1947, by which Whitehall/London ended its dominion status over Ceylon, whilst also undergoing a name change, to be referred to as Sri Lanka, thereafter.

The island, now on its sixty ninth year of independence, has had three Constitutions and 20 amendments thus far, whereas the USA, the world's most powerful, richest and the 'greatest' of all democracies, now on its two-hundred-and-forty-first-year of independence, has had only one Constitution with 27 amendments and six others 'pending.'

The classical idea of Constitution making in a democracy is to give power or greater power to the masses of a country. In propagating and giving teeth to 'people's power', the USA, vis-à-vis the decentralization of power known as federalism, gives a certain amount of autonomous powers to its 50 States.

Additionally, the centre which is based in Washington DC, to ensure democracy, has four arms of government. Those are the President (Executive), Congress (the Legislature comprising the Senate and the House of Representatives), and the Judiciary (led by the US Supreme Court seated in Washington). In this definition, the Senate and the House of Representatives (bicameralism) which together form the Legislature, are however, considered as two separate branches of government, due to their independence, one from the other.

And, in the case of Sri Lanka, other than the provincial system of government, which gives a degree of autonomy to the island's nine provinces, at the centre, 'seated' in Colombo, it has three arms of government. Those are the Executive (President), Legislature (Parliament) and the Judiciary (Courts).

Therefore, the question arises as to whether Sri Lanka needs a fourth Constitution or more amendments to the existing Constitution to give greater democracy, such as the re-establishment of the senate system (a form of bicameralism which existed prior to the 1972 Constitution)?

On the other hand, the British who 'bequeathed' Ceylon its first independent Constitution, namely the Soulbury Constitution, has no written Constitution. Its government is governed by conventions.

Sri Lanka's closest neigbour India, the world's largest democracy, also has a bicameral parliamentary legislative system, the Lok Sabha, comprising its elected representatives or MPs, the Rajya Sabha (largely elected by the country's 29 States only) and a federal State system giving a degree of autonomy to its 29 States. India, which enacted its Constitution three years after Independence, i.e. in 1950, has had 101 amendments thus far.

Howbeit, Premier Ranil Wickremesinghe who heads the UNP, the country's largest political party and President Maithripala Sirisena, the SLFP, its second largest, and who together form the current 'unity' government in Sri Lanka, are seemingly committed to a fourth Constitution for the island.

Whereas, it may be presumed, the proposed fourth Constitution may be a little or no different to the present, with its 20 amendments, what is paramount is its operation or implementation. A Constitution is a mere scrap of paper. It means nothing if it lacks implementational power. What therefore Sri Lanka needs is not a fourth Constitution, but a working Constitution which makes the masses supreme.

Daily News Editorial

Recovering stolen public funds

03 January 2017

Special Projects Minister Dr. Sarath Amunugama has vowed to introduce a Bill in parliament, not only to punish those who had plundered public funds, but also to enable the government to recover the entire loot. While the Minister's pledge would no doubt be applauded by the general public, it is certainly going to be a herculean task to unravel the stolen billions, as the government has only just found out to its utter embarrassment, while attempting to unearth the hidden assets of former VIPs. Today, as is only too well known, the stolen public funds by politicians have been converted into immovable assets, lying here or abroad, in the form of luxury hotels or real estates. What should be done is to halt the flight of the stolen billions from the country.

Hence before bringing in laws to recover stolen public funds, what the Minister should do is to take measures to plug in the loopholes in the existing laws that allow the plunderers to cover their tracks sufficiently on the trail leading to the accumulated loot. It should take a leaf from Singapore in this respect.That state, as is well known, has zero tolerance for corruption and have advanced in development as a corollary. Here, in Sri Lanka, a lot of noise is made periodically on tackling corruption by politicians, but the canker continues to eat into the vitals of society as a whole.

True, what Dr. Amunugma says makes sense. Merely punishing the culprits by throwing them into prison will not bring the stolen money back into the state coffers. A mechanism should be put in place for the recovery of the plundered money, even by liquidation of the assets. But this is a long drawn out process, as seen from the Golden Key matter. Hence, a more comprehensive piece of legislation should be introduced facilitating the prompt recovery of stolen assets of the state. Today, the focus is on the public funds stolen by politicians. But all transactions where public funds have been callously frittered away should come into the equation and steps taken to recover the money from all the parties involved. Dr. Amunugama would surely have the infamous Hedging Deal as an excellent example to fall back on in his quest for introducing a law to recover public funds that were criminally flushed down the drain.

Be that as it may, today, the government has run into a virtual brick wall in its investigations into the monumental plunder of public funds carried out by the leading lights of the last regime, chiefly due to the lack of stringent laws, leaving the culprits to dare the government to even unearth a single dollar stashed away in foreign banks on pain of severing their own necks. Nay, today those charged for corrupt acts, such as money laundering, and paraded before the courts have taken upon themselves the liberty to act as heroes, brandishing their manacled wrists before the public. And indeed they are being treated as heroes, as demonstrated by their cheering supporters, conveying the message that corruption pays in this country.

What is more, the big fish, against whom serious allegations have been made, are not only breathing the air of freedom but also portraying themselves as the wronged party and pointing the accusing finger at government ministers - all because the laws are bereft of sufficient teeth to rope in the rogues. Hence, as can be seen, those who swindled public funds can afford to be smug, knowing the wheels of justice will grind, oh so slowly, if at all.

While the minister speaks of bringing laws to recover the stolen public funds there is one particular former MP, who also doubled as a Monitoring Minister, well known for his wheeler dealings involving public funds, and who for a brief period was a guest at the state run lodge, is today not only roaming about freely but is also hobnobbing with functionaries of the present government in which Dr.Amunugama is a minister. This worthy, as is now being revealed has been using public funds, running into billions, with gay abandon, with the blessings of the then rulers. What, if ever, steps will the minister take to recover these monumental sums?

What has the minister got to say about one time ministers of a previous government who robbed the state but are left alone once they switch sides to the ruling dispensation? Sauce of the Goose should be Sauce for the Gander. It is time that the whole issue of corruption involving state funds be tackled in earnest. Not just government ministers and officials who manipulate tenders, but the other parties involved in the transaction should be roped in and brought under the scope of the law to be introduced by the minister. A good example in this regard is the numerous unsolicited proposals accepted by the last government, without demur, where astronomical sums were paid to the powers that be as commissions. Down the line it is the public who are made to pay for the kickbacks by way of inflated costs.

The Island Editorial

White Man’s Burden

03 January 2016

 

Much as Rudyard Kipling has been reviled for a racist streak in his poem, The White Man’s Burden’, where he, apparently in good faith, urges imperialists to send their best men to ‘dark’, ‘uncivilised’ parts of the world to look after their captives, successive Sri Lankan governments have justified his call; they have demonstrated that the assistance of the west, especially its largesse, is a prerequisite for their very existence.

Our political leaders, given to loquacity and hypocrisy, celebrate the country’s Independence on a grand scale, and never miss any opportunity to wax eloquent on their outstanding contribution to the nation over the decades. But, we are stuck in debt and dependent on foreign aid and they shamelessly grovel before world powers begging for loans and grants. They cannot even fix a leaky sewer without foreign assistance. The only thing they are apparently adept at is selling family silver. It looks as if the UNP and SLFP leaders, ably assisted by their coalition lackeys, had taken turns to prevent national progress and keep the country at the mercy of neo-colonialists.

The Sirisena-Wickremesinghe government came to power promising to prevent the country from becoming a Chinese colony. But, today, its leaders, driven by their yen for yuan, have overtaken their predecessors in appeasing China; they are busy handing over national assets including a vital port and a vast extent of land to Chinese firms.

Now, we are told that the incumbent dispensation has agreed to let a US firm ‘strengthen democratic governance and accountability’ here. We reported yesterday that, in keeping with an agreement with the Sirisena-Wickremesinghe government, the US had chosen Development Alternatives Inc to implement a public sector reform project at a cost of USD 13 mn presumably at the expense of the American taxpayers. The previous government stood accused of having contracted a US PR agency to shore up Sri Lanka’s image internationally at an enormous cost to the public purse but in vain.

The public sector in this country is rotten to the core. It is characterised by inefficiency, callousness, corruption, political interference; needless to say that drastic action is called for to transform it into a people-friendly, vibrant institution. This is a task which, we believe, can be accomplished without the world being made to think this country deserves to be bracketed with Liberia, Haiti etc. Most of the developing countries, where the aforesaid American firm has been operating, have suffered under dictatorships. The situation here hasn’t been that bad.

No foreign government or company can help increase transparency and accountability etc of the state employees here so long as the political authority keeps the public sector under its thumb. What is really needed to achieve the goal of developing the state service is not foreign assistance but the implementation of the existing laws. Time was when the public sector, free from political interference and appointments, lived up to people’s expectations.

The Sirisena-Wickremesinghe coalition made a solemn pre-election vow to clean the Augean Stables (read the public sector) by appointing Independent Commissions, the appointment of which, it said, hey presto, cure the state institutions of all their chronic ills. It introduced the 19th Amendment for that purpose. But, there hasn’t been a discernible improvement.

The onus is on the yahapalana government to fulfil its election pledges without running behind foreign powers seeking their assistance. First of all, it must stop shielding corrupt public officials and sweeping rackets under the carpet.

One may wonder whether the US-sponsored public reform project is aimed at bolstering the argument being peddled in some quarters that Sri Lanka is a failed state and cannot carry out its UNHRC commitments without foreign involvement. The proponents of the project may argue that gift horses should not be looked in the mouth. But, the fact remains that it was a fatal mistake for Trojans not to examine a wooden horse the crafty Greeks had left behind. Hence, the pressing need for the Sirisena-Wickremesinghe administration to tread cautiously in dealing with meddlesome foreign powers which advance their hidden agendas on the pretext of exporting good governance etc!