Sunday Times 2
Constitutional reform: Critical drawbacks obscured by the 19th Amendment
Sri Lanka’s political history has repeatedly demonstrated that very rare are instances of unequivocal passing of legislation, new or amendments to serve the nation’s interest however deserving they may be for the betterment of the people’s sovereign right.
Often they are hampered by legislators, justifying their vested interest with rhetoric argumentations for or against the nation’s interest. Eventually the statues are passed with trimmings, clippings and guileful adulterations that preserve the vested interests of the legislators. The result is that it starts afresh another cycle of the same process.
The 19th Amendment, much heralded as a torchbearer of good governance by civil society, is no exception. Its core aim — to transform the presidential system of government to a presidential-parliamentary system of government, to devolve power and to de-politicizse key institutions – seems to be in abeyance
The disenchantment arising from the failure to reach consensus on the 19th Amendment seemed to have been exploited to cleverly blur the severity of several unaddressed vital drawbacks of the current system that will continue to erode the aims of good governance and thwart the sovereignty of the people. These drawbacks — given as items I, II and III — are outside the purview of the commissions to be set up by the 19th Amendment’s Constitutional Council and hence are highly prone to political exploitation.
Item 1 is the lack institutional mechanism in the Constitution to facilitate corrective action directly by the people to address unheeded discontent — in quality or delay of expected deliverables — of communities, leading protests, violence, disruption in social harmony and economic loss. These are often fuelled and treasured by warring legislators to serve their lust for power, though in reality it brings about their demise Thus it’s not surprising that this drawback has been overlooked.
Item II is the lack of means to regulate the Regulators accountable for delivery of goods/services. This deficiency may cause hardship to the public: A notorious example is the Telecom Regulator. It has been removed from the relevant minister and given to the President — claimed to be for the sake of “National Interest”. Besides the numerous reported instances of corrupt deals, its incompetence is evident from its lack of professional leadership that’s unbeknown to many. It’s the outcome of the levels 1 and 2 managerial positions of the Regulatory entity being held by politically appointed administrators/attorneys the obedient servants of their master, required to submissively carry out rent seeking activities for mutual enrichment of the master servant duo. Their unfamiliarity with the knowhow, let alone a sound knowledge of engineering and mathematics — the core disciplines advancing the ICT technology — is depriving the public the benefits of the global trend of technology cost decline.
Had proper regulatory measures been in place, call charges of today would be a fraction of the charges levied today as evident from analysis of operator annual reports.
Item III is the drawback of escalating disarray of the Court System and its fraternity; exacerbated by void of records of the escalating backlog, decried from time to time by eminent bold and courageous of the legal profession but yet neglected for generations by our Parliaments and Justice Ministers.
For e.g. two recent instances endorse these characteristic of the system. The first is the legal fraternity trying to get rid of a judge opposed to lawyers moving for ‘dates’ (reported in Colombo telegraph). The other is the highly privileged treatment accorded to an attorney who has held high positions by virtue of political allegiances. He was arrested for an alleged fraud amounting to nearly US$ 520 million. The privileged presentation to court un-handcuffed and prompt release on bail was conspicuous. Even MPs charged with offences much less severity are brought to court in handcuffs.
The other factor that endorses the apparent intention to conceal the truth to the public is the pathetic outcome of numerous projects undertaken to modernise the legal system
There have been several UNDP- and World Bank-funded projects costing more than US$ 30 million to modernise the legal and judicial infrastructure of Sri Lanka. But to date, though the government trumpets e-Governance, the email services — the most basic ICT application — have not been provided to courts nationwide, let alone setting online information system. It has been done even by poor nations in Africa to keep track and control of court cases For instance, the Tuesday, February 27, 2007 Daily Mirror Financial Times, reported: “LawNet, Sri Lanka’s most comprehensive online legal database goes live.”. But to date the most vital need — the online means to track and control the mounting backlog of case — haves not been provided though it involves only the use of a very rudimentary simple database tool.
A feasible option to address the “public discontent” emanating from these drawbacks is to set up at least two more commissions under the Constitutional Council: the first to deal with drawbacks of items I and II and the second to monitor and ensure a quality legal service by the Court system.
Knowing that drafting of Constitutions Statutes is heavily constrained by the influence of incumbent legislators and other powerful groups with vested interest, the support of the Civil Society is of paramount importance to include means to surmount the aforesaid drawbacks under the article on Constitutional Council to help the unswerving efforts of President Maitripala Sirisena.