Political Prudence Versus Constitutional Jurisprudence

By Mass L. Usuf –SEPTEMBER 28, 2020

Mass Usuf

“Every man interested with power is apt to abuse it, and to carry his authority as far it will go” ~ Montesquieu, The Spirit of the Laws

The dissection of the 20th amendment bill is already in the public domain. This write up is not another addition to that. The purpose of this column is to appeal to the conscience of the politicians. Some may laugh. Never mind. 

It is natural in every society for there to be no general agreement in all matters. At the time of the abolition of Slavery in the United States, there were many who still supported slavery. Prudent politicians with a minimum of social conscience, self-integrity and morality should be able to see and judge the value of the 20th amendment to the country and its future.  

The challenge that the 20th amendment presents rests more on principled politics and less on juridical intervention. The thin line defining the judicial challenge of this bill is divided between a requirement to go for a referendum or passage of the bill by a 2/3rd majority. If there is a clause or clauses in the proposed amendment which require a referendum, the easy way out is to remove that impediment and pass the rest by the stipulated majority. The judiciary cannot do much. The government claims it has the 2/3rd majority. Therefore, it is a matter of principled politics (a rare commodity but need to be said) that has to be engaged in for the greater benefit of the country and its people. Since the legislators are answerable to the people who elected them, the burden is on the people who must influence their representative either way.

Social Contract

Sovereignty of the people means government by the people, vide Article 3 of the constitution. For this, there has to be system of governance. To facilitate the running of the government, the constitutional document has laid down the directives, structures, procedures and limitations. People cannot be directly involved in the state operations. Therefore, the exercise of the sovereignty of the people is affected by the three vital structural organs as stated in Article 4 namely the Legislature, Executive and, the Judiciary. The constitution is the social contract by which the people in a country are governed.

By this process, the functioning of the governmental organs and their respective subsidiaries can be monitored for efficiency, performance, corruption, abuse of authority and so on. It is said that “The Constitution is not just a set of discrete political decisions allocating power in different ways but a system of principle.” (Jurisprudence and Constitutional law, Encyclopedia). While traditionally what is scrutinized is the efficiency and performance of the institutions, judicial thinking has furthered the notion of ‘exercise of the people’s sovereignty’ in governance. It has been stated that in the context of the modern world and expansion of divergent interests, part of the scrutiny and monitoring procedures must include even the ‘non-performance’ or ‘omission to act’.  

The following observation was made in the Supreme Court of India in this regard. “… traditionally the checks and balances dimension were only associated with governmental excesses and violations. But in today’s world of positive rights and justifiable social and economic entitlements, hybrid administrative bodies, private functionaries discharging public functions, we have to perform the oversight function with more urgency and enlarge the field of checks and balances to include governmental inaction. (Dr. Ashwini Kumar vs Union of India Ministry of Home (619, para 83) (2019).

Two Options for Politicians

The Supreme Court of India has clearly articulated the urgent need to enlarge the field of checks and balance. Remember, this is a new addition to the scope of checks and balances, despite having several limitations already in place.  The judicial willingness to expand the embrace of modern constitutional jurisprudence to greater transparency, accountability and dispersal of power is a positive development. What is the role of our politicians in keeping with this change vis a vis the 20th amendment? They have two options to choose from. Firstly, the progressive approach.  Secondly, the retrogressive path.

The progressive approach is in harmony with the above interpretation of constitutional restrictions. Taking cognizance of the urgent need to enlarge the scope of restrictions even to include the oversight functions of inaction (a case in point may be the inaction prior to the Easter Sunday attack). If there are shortcomings in the 19th amendment, it is suggested to make changes to ensure its administration, implementation and co-ordination efficient. The integrity on limitations in the 19th amendment is not to be rewritten in a manner which will lose its purpose and compromise the sovereign intent.

The retrogressive path is to revert to arbitrary rule and unchecked authoritarianism behind the façade of democracy. This can be done by removing, as is seen in the bill, the in-built limitations and the checks and balances which are already in place. Thereby, weakening the supervisory role of the institutions specifically designed to prevent abuse of power and authority. These institutions were created to establish an environment free from fear, threats and intimidation so that the Police, Public Servants and the Judiciary can do their respective tasks without interference. Learned Jurists have opined that “separation of powers should not be understood as a pure instrument of restraining political power. It is also an instrument that constitutes this power.” 

Concentration of Power

The elected members of parliament, the Prime Minister and the President must appreciate that they are the government. They must recognize that although they wield power and authority, they may be perceived as the agent or fiduciary of the sovereign people. Therefore, the exercise of powers of government have to be within the parameters guaranteeing the protection of a constitutional democracy. Moreover, safeguarding the trust reposed on them by the people.  

The problem is, unified authority under one single Office introduces the risk of tyranny and potential abuse of power. The solution for this is the dispersal of power in a workable format and not the extreme action of effectively removing the existing checks and balances. Prof. Aileen Kavanagh, is of the view that ‘if the sole purpose is to ensure that powers are checked and monitored, then we can satisfy this goal by putting institutional checks in place, without worrying about the basis of the original power-allocation.’ (The Constitutional Separation of Powers, Oxford Law Faculty). Beginning from Montesquieu, the emphasis to avert the concentration of power has today become part of the principles of constitutional jurisprudence.  In the inspiring words of Statesman and Philosopher James Madison, “In order to avert the risk of abuse of power we must ‘so contrive the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places:” (‘No. 51; in C. Rossiter (ed), The Federalist Papers).

Constitutional Obligations

Though not justiciable, look at some of the Directive Principles in the Sri Lankan Constitution in Chapter VI. Article 27 (1) refers to ‘laws and policies’ that will guide the establishment of a ‘just and free society’.  How can this be achieved under the proposed bill? For example, the President has the power to directly make appointments to the Human Rights Commission of Sri Lanka and the Commission to Investigate Allegations of Bribery or Corruption. Will the Commissioners feel free and independent to inquire into any complaints involving the government or officials close to the authorities?

Read More