Limitations of State Power in Democratic Constitutions
Posted on December 7th, 2018

Janaki Chandraratna Perth, Western Australia

A codified constitution is a set of rules for the governance of a sovereign state. Constitutions need to have inbuilt limitations in each of the three sectors of the state (i.e. Executive, Legislature and the Judiciary) to prevent any use of excessive authority to the detriment of the rights and entitlements of the individuals or the community as a whole. Similarly safeguards are introduced to the constitution to protect the interests of the minorities as democratic governments are based on majority rule.

The inbuilt constitutional safeguards are not generally used as governments elected by the people conform to the majority will and the interests of the country. The Sri Lankan situation had arisen as the President as well as the country’s majority, through the 2018 local government elections, had clearly expressed a lack of trust in the then Wickremasinghe government. The sale of country’s assets willy-nilly; introduction of non-compliant amendments to the constitution at committee stages to fraudulently circumvent referendums; introducing constitutional amendments bypassing the judiciary procedures to divide the country on ethnic lines and possibly circumvent the referendum process; the bond scam; the degradation of the economy; free trade agreements detrimental to the country, like that with Singapore and the proposed ECTA agreement which would have a huge impact on local employment; co-sponsoring UNHRC resolutions on war crimes without any approval from the cabinet, let alone the parliament; evading provincial council election etc., are some activities of the government that abrogated the trust of the people. In these circumstances the withdrawal of UPFA support to the yahapalanists and the sacking of the PM was an inevitable outcome.

Whilst the legalities of the process is to be decided by the judiciary on 7 December, it is worth noting that sacking of recalcitrant PMs had occurred in other notable democracies as well. The sacking of the PM Gough Whitlam of the Australian Labor Party by the then Governor General (GG), Sir John Kerr, on 11 November 1975 is an example. The money bill of PM Whitlam was defeated by the Senate, which was controlled by the opposition leader Mr. Malcolm Fraser, of the Liberal Party. It is customary for the PM to advise the GG to dissolve parliament if the money bills are defeated. The PM however, sought the approval GG for a mid-term Senate election instead of a general election. The GG sacked the PM and installed the opposition leader as the PM using the inbuilt safeguards in the constitution.

Australia, arguably, is the best democracy in the world. There is no place for incompetence in the Australian government. Political party leaders are replaced if they lose elections or found incapable of winning elections. There is a reasonable group of floating voters. People are not divided as blues, greens or reds. There are over 250 racial groups none of them including the aboriginal groups want a separate state. Australians are well supported by the govt. and people are free from having to worry over their economic and social security. It is a happy country. Our small country needs to emulate countries like Australia and this can only be done by having sufficient inbuilt controls in our constitution to rein-in recalcitrant politicians; our politicians to be honest so that they can be trusted; and sever the bondage between politicians and voters where they need to have chits” from the MPs for employment or for any other government business. In Australia, such a letter is a short circuit to your ineligibility.

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