JRJ 1978 Constitution - A seriously flawed piece of paper

No country can escape the evil effects of corruption unchecked power brings. When that applies to a nation’s government, that nation slowly but surely drags down through a slippery slope to the abyss. The only and guaranteed tool a nation has to prevent such is to get its constitution right. The constitution is the sacred document on which nations are built upon.

The last time there was a major overhaul of the SL Constitution was in 1978, spearheaded by late JR Jayewardene. He scrapped the hitherto Westminster style constitution wisely introduced by the Brits and brought in a hodge – podge mess of a  Euro – American style constitution that is hugely flawed.

He bragged that his constitution would stand on the three legs of independent Executive, Legislative Judicial branches but as I describe below his constitution was full of holes, big ones too!

I grant him the credit for opening up a free market capitalist style market-based economy. A market based capitalist economy based on human greed for making money is the greatest engine of economic and job growth the world has seen.

The world’s greatest economy to-date which is the US economy is the best example of how capitalism benefits nations and its people. In no way, I am implying that capitalism that is unchecked by a proper set of checks and balances and through wise legislation is the right but broadly speaking Capitalism works. Like they say “Greed is good”.

But JRJ blundered hugely 

He created an all-powerful Executive branch in the name of stability. His goal was to make sure that once elected, a leader should be able to rule through the whole term. That sounds sensible. But who has the oversight of this powerful executive branch? Who makes sure that the executive is functioning within SL laws?  Who is making sure that his team of cabinet of ministers functions within the law? The answer is nobody really. So in essence while creating an all-powerful executive, JRJ failed to put in place a mechanism to have oversight over this office. If anything there is an appearance of oversight by the parliament but that too is flawed.

The SL President has to reach out to the Parliament for money. He or she also  has to reach out to the parliament for any legislation he wants. SL parliament has the power of the purse and legislation.  So what is the problem then? The president can’t do anything without parliament sanctioning funds or laws right? Wrong!

JRJ’s blunder was that the President would appoint members of his cabinet from within the Parliament. He probably thought that was even more democratic because MP’s are elected by popular vote. Wrong again. If the cabinet members are also MP’s in the parliament who has the power to sanction funds or pass laws the executive wants, how can one expect the legislature to decide independently? A minister has power, privilege, social recognition and plenty of freebies. So which minister would want to deny funds or laws to the President and risk losing his or her coveted Minister Job?

Now we can begin to understand why SL has mammoth number of Ministers, 90% of who just simply a wanton waste public money off a $90 Billion tiny economy. The President, by appointing almost all MP’s of his party as ministers, highjack the independence of the parliament.  There goes JRJ’s much boasted independent legislature.

The third blunder is the creation of the office of a Prime Minister. We are all familiar with the current conflict in SL between President Sirisena and Prime Minister Wickremesinghe. I can guarantee that most Lankans are confused as to who makes the day to day decisions of the country or runs the country.

By definition the Executive is supposed to run the country with his cabinet. So where a Prime mister  come into this?  What is the need? I am sure SL people spend a large chunk of billions of rupees to maintain the Temples Trees Complex and the security apparatus. For what purpose? Between the Presidential mansion,  Temple Trees, and maintaining a gigantic amount of Cabinet Ministers, non-cabinet Ministers, junior ministers, their expensive bungalows, luxury SUVs , support staff etc., I wonder what percentage of our total annual budget goes to sustain all these heavy apparatus that we call the SL government.

We have all seen the expensive and huge luxury SUV’s going in and out of the Temple Tress in the recent few weeks. As a $ 90 billion economy in debt up to our eyeballs, can we afford them? Is this the exemplarity lives our elected leaders are supposed to live?

All of the above is a direct result of JRJ’s 1978 constitution.  JRJ created this gigantic corrupt mess by a very short-sighted if not silly constitution.

Next, who has the oversight over the Ministers and senior government officials like Chairman of State-owned corporation and the Secretaries of the Ministries? Who supervises them? Who checks their job performance? The President? The President who depends on them in the Parliament to give him money or pass the laws he wants?  The answer is nobody.  Another blunder by JRJ!

Just for argument sake, I will bring in the US system here only because JRJ claimed that he took cues from the US constitution. In USA, the ministers who are called secretaries get their appointment so differently to SL. First a Minister is not a member of the legislature. Second, he or she is a recognized person most likely from the private sector who is generally an expert the field. A CEO, an eminent economist, an eminent businessman, a general, a scientist etc. are all in the running to be a minister.

Then a Senate subcommittee has to vote and forward his name to the full Senate for the vote after rigorous vetting in public hearings about the would-be ministers qualifications, character, background and integrity. This is tough, to say the least.

Once appointed, the ministers are constantly called upon for public hearing by Senate and house sub committees to question their decisions in public. The house or the senate can send have him investigated for breach of law. If he or she tries in interfering, he or she can be charged for obstruction. No second word.

In JRJ’s constitution, anybody that the President likes can be appointed a Minister.  No other criterion needs to be met. Period! The same applies to the senior positions in government. How many brothers, brother in laws, nephews, nieces who are unsuitable even to run a roadside restaurant have become heavily perked and paid heads of our government institutions.  Some of these institutions like the Port and Petroleum have billion dollar annual revenue and run probably by the Minister’s family member! The only qualification – blood line.

Remember we are just a tiny $ 90 Billion economy who is heavily in debt. We can barely afford to pay government employees.

Finally the so called third independent branch of JRJ constitution: the judicial branch. Now JRJ’s thinking was that this so called independent judicial branch will oversee the other two branched for breach of law? In this regard, I only have one question to ascertain if the judicial branch has lived up-to its constitutional obligations.

After 1978, how many of our elected MP’s, Ministers and also senior government officials have been jailed for breaking the law? How many are still in jail?  The answer is none.  Is stealing public money, no matter how big or small it is, is not unlawful?  Is confiscating a TV cameraman’s camera by a cabinet minister in broad public view not unlawful? Is blasting a career senior DIG in public who was merely doing his job at the UN office by the defense secretary (his boss) lawful or at minimum calls for an ethics investigation.

Is tying a fellow Lankan to a tree in Public not illegal?  Is the fact that a former Chief Justice would visit the President and promise to deliver any legal decision he wants at the Supreme Court (our Apex court) calls for at minimum disbarring him from the justice system? The Justice System has been designed by JRJ’s constitution for failure.  

The President appoints (and fires) the Attorney general. So how can he bring charges against the President, his cabinet and other members of the executive branch without losing his job?  It is no secret that only a powerless school principal, a police constable, a pick pockets or a village thug are the only people who are jailed.

 Not even large scale drug kingpins see a day in one of our courts. If they do, they somehow never end up in jail?  And all those big hauls of smuggled drugs we see on TV. What happens to them is always a mystery! Why do so many known criminals go even un-indicted ? No question it is political interference . Is interference into police not illegal ?  If not how come the culprits not brought to justice 

No democracy can survive a society without the Rule of Law which basically means all people are equal under the law!

Hopefully by now, one can see all the holes in the JRJ constitution. It is a curse. It ruined SL. It ruined our so-called Democracy. Its fundamentals are flawed. We need a new and a smart constitution, not amendments like the 19th that made things even worse not knowing who actually runs the country; the elected President or the appointed Prime Minister. These are essential, basic questions.

Who will spearhead this massive undertaking is the million-dollar question. One needs two thirds majority in the parliament and a yes vote at a referendum.  Can one expect the members of our parliament to want to change the system on which they depend so much to benefit and prosper.

And that is the biggest hole JRJ left for his nation. One that is extremely hard to fix!!  Looks like we are doomed!

Asoka Seneviratne
Washington DC