Académique Documents
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RAVI RATNASABAPATHY-11/05/2018
“Commander in chief of the army, navy and militia, with the power of making
treaties and of granting pardons, and to be vested with an authority to put a
negative upon all laws… is in reality to be a KING” (An Old Whig,1787)
Citizens of Sri Lanka should heed this warning to the framers of the US
constitution.
The Sri Lankan Presidency was, until recently, a fixed executive, not dependent or
answerable to parliament and not removable except for limited reasons. Head of
the State, the Head of the Executive and of the Government, and the
Commander-in-Chief of the Armed Forces. With the power to appoint higher
officials, Supreme Court judges, the Police Commissioner, Elections Commissioner
it was, essentially an elected monarch.
Did Sri Lanka throw off the British crown only to replace it with local one barely
half a century later?
The Roman poet Juvenal expressed it as “Quis Custodiet Ipsos Custodes?” [who
will guard us from these guardians?].
c) a rule of law based upon notions of individual liberty and private property; both
terms carrying specific meaning.
Individual liberty
“Coercion occurs when one man’s actions are made to serve another man’s will,
not for his own but for the other’s purpose.” (Hayek[1]).
“Free society has met this problem by conferring the monopoly of coercion on the
state and by attempting to limit this power of the state to instances where it is
required to prevent coercion by private persons”(Hayek)[2].
This means the state is given the sole right to exercise coercion, but it must do
so only to protect citizens from the coercion of others.
Thus, you may not enter my house without my permission. Thus, you may not
borrow my car without my permission. Thus, you may not violate my body
(Lehto)[5].
Property marks the limits of permitted action in a liberal society, the personal
domain which should not be intruded into under any circumstances.
“We may well detest other people’s religion, reject their political views, abhor
their lifestyle, despise their manner and loath their habits. We may be shocked by
their ideas and opinions. We may even worry that they are damaging their own
health with drugs or their own prospects with their anti-social behaviour. But
none of these are valid reasons for using force to try to make them act
differently.”(Butler)[6]
A regime of legally protected property rights, in the wide sense used here is a
prerequisite for liberty: “the end of the law is, not to abolish or restrain, but to
preserve and enlarge freedom (Lehto).
States exercise power through the machinery of state: bureaucracies, the bodies
of state and local government, legislatures, judiciaries police and armed forces.
As the law is the principal check on power it is essential that the process of law-
making itself be subject to checks.
These are the principles that must be ingrained in the constitution and the
organisation of government.
The political party that wins the most seats takes charge of government, until the
next election. The Government is responsible for running the country.
(a) debate;
(b) questions;
(c) investigation.
As MPs who dare defy their leaders may be ejected independence is lost. Instead
of representing the citizens’ interests, they represent the party leaders interests.
MPs cannot defy party diktat but a Supreme Court ruling allows them to cross-
over without losing their seat. This enables the government to lure MP’s by
offering them positions, securing a permanent voting majority.
As MPs fear to question, parliament becomes a rubber stamp, not a check. Laws
are what limit power, but if parliament cannot check government bad laws may
be passed.
Under bad laws, power is legitimately exercised but oppresses citizens, a situation
of rule by law as opposed to the rule of law. The Emergency laws or the
Prevention of Terrorism Act are examples.
They can examine what the outcomes of activity (or inactivity) have been,
including by requiring explanation from government. They can summon experts,
stakeholders, demand answers from ministries, send for papers, and documents.
In the UK, there is a strong emphasis on committee reports being based on
evidence, primarily that collected by the committee. The Government is required
to respond to reports.
Committees provide the greatest scrutiny but until the 19th amendment, Sri Lanka
had only ceremonial “consultative” committees. Instead of opposition members
chairing committees (as in the UK) Sri Lanka’s were chaired by a minister of
government. The government was not required to respond to any reports,
effectively rendering them useless.
The 19th amendment has charged committees with oversight and they are now
chaired by an opposition MP which is big improvement but the reforms still fall
short.
Recommendations:
MPs (and their staff), particularly those in committees would benefit from
specialised training. Even established democracies (UK, Australia, Canada etc)
have induction programmes for new MP’s. At a minimum Sri Lankan MP’s must be
made more familiar with their constitutional responsibilities, rules of procedure,
human rights, gender equality and public finance.
One way to improve scrutiny is to open the hearings to the public. The presence
of media and interested citizens will have a salutary effect on the participants and
allow greater public discussion on relevant issues.
Committees must have proper resources- their reports claim they are hampered
by lack specialist skills (legal, accounting etc), equipment and research capacity.
Addressing these shortcomings is a must.
Sweden has a Constitution Committee that is tasked with ensuring that the
Swedish government ministers follows the rules for the government—namely, the
Swedish Constitution and Swedish law.
The committee consists of forty-four members representing all parties of and has
the power to hold hearings, conduct investigations, and request classified
materials from MPs. The Committee can act on its own initiative or in response to
complaints from MPs (not citizens)and can initiate the prosecution of crimes
committed by MPs in their capacity as MPs (decided by the Supreme Court).
(d)A Constitution Committee of the upper house
The House of Lords Constitution Committee’s role is to examine all bills for
constitutional implications (a check against legislation that infringes basic rights)
and, even more importantly, keep under review the operation of the constitution.
This prevents the constitution itself from being undermined by ensuring that
changes are not made “without a full and open debate and full awareness of the
consequences”.
It fulfils the second limb of its remit by carrying out investigative inquiries into
constitutional issues, engaging a specialist advisers (external experts) and taking
written and oral submissions.
Examples of constitutional implications include:
(ii) alteration to the powers of the courts or measures that would place
the exercise of power beyond the purview of the courts, or which would affect
the independence of the judiciary;