No Easy Walk to the Constitution

Many irons in the fire; President Sirisena is the enigma

Some people’s dream ticket

 “The laws delays, the insolence of office”

by Kumar David-January 29, 2017, 12:06 pm 

There is clarity on what the Steering Committee and six subcommittees would like to see in subsidiary aspects of the constitution; however there is a black-hole in the middle regarding the apex. Subsidiary means Fundamental Rights, Judiciary, Law and Order (police and national security), Public Service, Finance, and believe it or not, there has been unanimity in the Centre-Periphery subcommittee. Hooray, but there is a hole in the hub, a lacuna at the central apex. By apex I mean; will the presidency be executive (if yes, what powers?) or ceremonial as in parliamentary systems; what will be the balance between president, cabinet-PM, parliament and provincial governance, and what about a second chamber? The contentious issue underscoring political machinations and cloak and dagger intrigue is: "Will the president be directly elected and retain executive powers, or will the presidency be ceremonial?"

Lankan political opportunism being what it is, the debate has less to do with principles or what is best nationally, but dictated by crass opportunism. The Joint Opposition’s (JO) and to an extent the UNP’s stance is determined by calculations of power play, power grabs and how to undermine the other side. The JO is oblivious to constitutional principles or national problem solving; its concern is how to trash the government. Remember, when Obama said white the Republican controlled Congress said black, and when he said black they said white. I know enough people in the JO to say that this is how it thinks. Few are bothered by rational concerns about executive and ceremonial, the relative merits of degrees of devolution, better budget making procedures, or police reforms– DEW perhaps is the only JO person who may be thinking along fundamental and not opportunist lines. For others, especially SLFP Ministerial detritus hanging on to Sirisena’s chemise, it is all opportunism: Will it be Sirisena - Will it be Ranil – How to pull off a Sirisena-Gota ticket - How to pull down the government, and such like motives.

President Sirisena has been careful. He has not contradicted his election pledge - repeated over Ven. Sobitha’s coffin - that he will preside over the dismantling of an all-powerful executive. The worry is that he has not told these braying asses to shut up, nor declared he is no fool to commit suicide in a trap honeyed with Gota bait. If Sirisena were to unequivocally reiterate his commitment to abolish the executive presidency, uncertainty around constitution making will vanish. Come on Mr President, what’s holding you back?

So much for skulduggery; let’s move to substantive issues. From people of many political hues and from the media I have come to appreciate what agitates genuine (not opportunistic) minds:-

a) Will a strong centralised system (say an Executive Presidency with substantial powers) provide a favourable environment for rapid economic growth?

b) If not, in what ways can the nation’s basic law be tweaked to promote growth?

c) How much devolution is too much in the sense of being a threat to the territorial integrity?

d) Haven’t Provincial Councils been a failure for 30 years? What then is the point of devolution?

e) What are the pros and cons of a second chamber?

f) What can be done about the deplorable mess in the dispensation of justice where Hamlet’s quip about "the laws delays" has become Lanka’s way of life?

g) What about social and economic equity? (Inserting social and economic rights in the fundamental rights chapter is only decoration).

I know this is biting off more than can be chewed inside 1,500 words, the limit to minimise mutilation by typesetters. I will employ a tight style and make packed comments for the reader to mull over and unpack. On (a), the answer is No! A muscular executive president is no guarantee, nor necessary for economic speed. The last 30 years in Lanka is counter-example and refutation of that hypothesis. Of course, strong government, of whatever constitutional design, and clear policy are a sine qua non. There are many and diverse examples. Deng Xiaoping (no post), Lee Kwan Yew (PM), Bill Clinton (executive president) and Mahathir (PM) on whose watch nations prospered. The jury is out on Modi, heir to a Westminster tradition, and candidate for membership of this club. Furthermore, argument (a) can be discarded as spurious in the light of our egregious experiences of authoritarianism and executive presidents.

There are provisions that can be incorporated in a constitution to push the economy and give it direction. Since domestic capital in Lanka is weak in promoting growth, purposeful steps are needed (our capitalism has been seeni bola all its life). Yes, a constitution is not a set of policy measures nor is it to be confused with enabling legislation, but it can provide supportive structures. One step is greater devolution of responsibility for regional development to Provincial Councils. Another is constitutional recognition of planning bodies including those envisaged in the Development (Special Provisions) Bill of 26 November 2016. A third essential is dirigisme clauses, making it incumbent on the state to intervene, direct and take responsibility for the economy. That’s enough for (b); actually there is a lot of meat here to think over.

Item (c) on my list seems to be a tricky but is not. The panic is in the febrile imagination of folks who see a Tiger behind every shrub. To begin with the seven provinces outside the North and East are not candidates for the remotest secessionist suspicion. There is no mood among Tamils for war, for Eelam, or for Greater Eelam with Tamil Nadu or some other godforsaken hole in the Far East, a nightmare giving racists palpitations. This is true, recent scattered incidents notwithstanding. The security and intelligence systems and structures now in place are overwhelming; it is their excesses, not devolution that is a problem. Devolution of administration and subsidiary legislative authority is possible without worry about territorial integrity. But there is no rationality under the sun that will sooth a paranoid mind; so forget about winning dyed in the wool chauvinists to the cause of devolution.

The experience of 30 years of Provincial Council administration is negative. Much less has been achieved to improve provinces than expected. PCs have been repositories of self-serving sleaze and graft. True, this is a generalisation, but readers can think over whether it is fair. The biggest flop has been Wigneswaran and the NPC. I hailed the arrival of W and NPC as an example others could follow of how a proactive and motivated administration could use devolution to achieve great things. Now I have egg on my face. Little of significance has been achieved; the budget is unspent; hardly any statutes enacted; all the while the Chief Minister in engaged in political kavadi dancing to the tune of some who lead him by the nose. Differences on ethnic issues aside, has not the NPC failed to use available powers to materially benefit the denizens of the province?

Still, I urge more not less devolution as there is no alternative. It is impossible to claw back power to the centre; it goes against the spirit of the times globally and locally. And it is true that there are real constraints inhibiting PCs; restraints on raising money, excessive gubernatorial power, a concurrent list whereby the centre usurps control, and low public esteem of PCs. We should go the whole hog, expand scope and finances of provincial and local bodies, put responsibility on their heads in the eyes of the people, and tell the public to lynch the blighters if they don’t measure up.

This "anduwa didn’t do this and anduwa didn’t do that" game is passé. Old top-down state configurations have corroded. People are fed up with governments of all hues leading to Trump like flare-ups. The old style format doesn’t work anymore. The option is to pass the buck to the people and let them to look after themselves; more has to be done lower down the devolution spiral. Grass-roots leaders can be hanged if things go awry while they had funds and power. The Centre-Periphery subcommittee report is half-way along these lines. That’s all the space I can spare for item (d).

I am giving (e) and (g) a miss to focus on something (f) avoids; the monstrous ‘laws delays" issue. Let me begin anecdotally. KK Gunewardene and I go back a long time, 65 years from Upper Third at St Thomas, through Engineering Faculty, into working life and abroad as students. He was the first Director General of Telecoms and also drafted the Telecoms Act. I was his best-man; our families were friends; now in retirement we are frequently in touch. However, I deserve a gold medal for putting up with his interminable grumbling and snivelling. The point this is leading to is that KK’s burning passion in recent times is an obsession with delays, hold-ups, obstructions and postponements in the court system. He is an expert; he whinges that a backlog of 700,000 cases has piled up in the courts island-wide, some for two and three decades. There are land cases where grandson is heir to grandfather’s plaint!

Vulpine lawyers "get a date", after that another date, and date after date. Each time they pocket a fee. Magistrates and judges yawn through files. The poorer the client, the more he is cheated. No amount of pleading with the profession has been of any use. PCs, QCs, LLBs and BLLs, waffle and shuffle. All society knows; though there is much rant and commotion about political crooks, this gross injustice is swept under the carpet. Don’t say this is not a constitutional matter; what blithering use is a constitution if it does not address pressing problems. So tell me, what is the citizenry to do?