By Cecil Atukorale (LLB Col.) – Courtesy The Nation

Whatever the form of Government, a monopoly of power in State would be the end of all civilised politics, whether it be the presidential executive or parliamentary executive.
Constant experience has shown us that every man/woman invested with power is apt to abuse it to carry his/her authority as far as it will go. The more politicians want power, less it is about principles. As such the existence of a constitution does not mean automatically that there also exists a democratic system to go along with it.

At all stages of constitution making in the past, our politicians have acted very rashly towards people. What we hear today is considered with what we remember from yesterday. Democratic essence of a party is to be judged not by its slogans and programs, but by its practical policy in dealing with the major issues of public life. To see what is what in the fight between parties, one must not take the words at their face value, but must study the actual history of the parties, must study not so much what they say about themselves as their deeds the way in which they go about solving various political problems and their behaviour in matters affecting the vital interest of the various classes of societies, peasants, workers, landlords and businessman
The trouble with our politicians is they seem to think that people are not good political reformers, and therefore a Constituent Assembly or Parliamentary Select Committee like thing must pioneer for them and even over them. In their opinion, constitutional issues should be of concern to the professional politicians only and the views and opinions of the detached citizens are not worthwhile. 62

After all, politicians are politicians by whatever name you call it. In the art of deceiving people, they have no equals. People are merely asked to submit their proposal to a relevant select committee or Constituent Assembly, showing that they are being heard. Accordingly, voters should entrust a Member of Parliament with full authority, and give him full scope to use it. More often than not, they are intolerant of any disagreement from the voter, who is very enthusiastic about democratic constitutional reforms. Thus, the fate of the people is decided without their active participation and the public interest is virtually ignored. This is what constitution making means to our politicians in this country.115
Constitution can also be distinguished in terms of the manner of their introduction:
Prepared draft is presented for discussion either to Parliament ( as in Sri Lanka for example in 1978 ) or to a specially formed Constituent Assembly ( Sri Lanka 1972) or is voted on directly in a General Referendum as happened in France in 1958. Views  of the Referendum appears at first sight  to be a democratic method, but in fact electors only can accept or reject, but don’t have the right to introduce amendments. Furthermore, as the voters are ignorant it is sometimes difficult for them to evaluate such a complex document as Constitution. It is not surprising that the so- called referendum has led to the adoption of extremely undemocratic constitutional measure to usurp the legislative power as happened in Sri Lanka in 1982 under the JR Jayewardene regime. However, the ruling classes often seek to avoid greater public participation on matters pertaining to constitution making; whereas during the colonial days when the Donomore and Soulbury commissions made its recommendation for constitution-making, they toured the country and gave the people a broader public hearing. In the post independent era, constitutions were made according to the whims and fancies of power-crazy politicians to match their petty political interests. Thus, in 1972, we got an almighty Parliament which could make man a woman and woman a man.

In the context, are we not justified if we were to say almighty Parliament is more dangerous than the executive presidency? This was nowhere more marked than when we look at the rash manner in which parliament itself passed a motion in 1975 extending the duration of parliament from 5 to 7 years, with no mandate from the people. In that situation people were helpless.

As regards the idea of abolishing executive presidency to replace it with a parliamentary executive, we have to say the same thing. It will be a remedy worse than the disease for our power crazy politicians are susceptible to bribery and corruption. It is completely absurd to think that the executive presidency has given rise to the constitutional excesses eroding democratic values. The defect in our executive presidency is to be found not in the powers of the executive presidency, but elsewhere. It is the lack of direct democratic checks and balances in the Constitution that has engendered a situation like this. In this country, people are granted the sole right to decide once in 5 years who is to represent them in Parliament. Though, he is elected by the vote of the people he is not bound by the will of the people. As a case in point, we cite the recent crossovers of members from one party to the other in disregard of the people’s will. In a situation like this, the voter is helpless. They are viewed in the law as the representatives of the nation and cannot be recalled by their own electorate before the expiry of their terms of office even if the electors have lost their confidence in them. It is here that we need to have embodied in our future constitutions some direct checks and balances like recall, Initiative and referendum to curb such power abuses. These checks are a means of enabling the people to review the actions of the Legislature. They are meant to compel the Legislature to share its power with the people – for it was feared that if the legislature were given unrestrained power the dictatorship of the parties would result in a distortion of the wishes of the people.

When President JR Jayewardene made this constitution, we were then told that he had taken some cue from the US Constitution and in the context we have to make reference to the US Constitutional System as well. The upkeep of the US congress in 1984 lost 1700m USD. That is just 3m USD for any congressmen. 55

Our elected representatives in Parliament are also entitled to some such privileges like duty-free luxury cars , subsidised meals, foreign trips, housing allowance and the like under our Constitution as well, despite its poor performance in our national politics. See Article 68 of the Sri Lankan Constitution. Though our politicians are highly lamenting over the power vested in the Executive President, they have no such lamentation as regards the benefits and privileges now being enjoyed by them at a high cost to the State coffer.
The frequent repeal of one Constitution and its replacement by another of the same social content serves no purpose either to the country or to the people. To understand systematic changes since 1972, it is essential to give a brief outline of the political reforms in this period. Soulbury Constitution was touchable by the people though it was prepared by foreign constitutional law experts. Under Article 14 of the Soulbury Constitution, any citizen could institute action against any miscreant who sits or votes in Parliament if such person is not fit to be elected to Parliament. Under the post-independent Republican Constitution that situation changed. See Article 13 and Article 100 of the 72 and 78 constitutions respectively. The phrase any citizen was replaced with the phrase Attorney General in our later constitutions. Now Attorney General is the sole authority to deal with such matters. Now the citizen has no right to intervene for such matters.

Politicisation of the public service is a legacy we inherited from the post independent Constitutions. Compare Article 51 of the Soulbury Constitution with that of Article 106 and Article 59 of the 72 and 78 constitutions respectively.

Again as regard the issue of University Education, our campus student are groping in the dark not knowing the reality. They have read the country’s constitution in vain. This is what Article 21(3) says about the University Education. In this article University include any Institution of Higher education. It is the constitutional interpretation term given to University in this country. As such, all other interpretation given to it any other statute or law should be read subject to that constitutional interpretation.

One of the most obnoxious provisions found in the present Constitution is its Article 154 which deals with State auditing. This article has been framed in such way that after misappropriation of state funds, any corrupt politician can escape liability. See Article 154 (1) (2) (3) of the present Constitutions. This Article empowers the ministers to appoint its own auditors to audit the accounts of their respective ministries in consultation with the Finance Minister. Further Article 154 (3) says  ‘ the Auditor General shall also perform and discharge such duties and functions as may be prescribed by Parliament by law.

What this country actually needs is a law-governed society where the State as is instrument should strictly by the law establish be and not the other way round. It is this constitutional loop-hole that has been made use of by all corrupt ministers ever since 1978 up to this date, though the rulers in the present government are silent about this vital point. Who is going to fool whom?