A calamity of constitutional crises | Sunday Observer

A calamity of constitutional crises

We are going through a period of major tragedy with the blood of innocents, due to a massive failure in governance. Months away from the Presidential Election, and not too far from the next General Election, there is no serious discussion of the constitutional and legislative changes needed to face up to the rising trends of Islamic terrorism and the need to deepen democracy in the country.

Political parties and civil society organisations with commitment to democracy, must initiate a public debate on urgent constitutional and legislative changes required to face the new political reality, beyond separatist terrorism defeated a decade ago. The major constitutional changes proposed by the Yahapalana Government have hardly been carried out. We have only the 19th Amendment, which is very useful, but limited in scope, considering the major changes needed.

The past four years saw the absence of political commitment to widen and deepen democracy, strengthen Human Rights and strengthen the Rule of Law. The Constitutional Assembly presented an initial draft constitution. It is stuck there for want of political allegiance by the President and Prime Minister, ignoring the common program presented to the people.

The tragedy of today is largely due to constitutional and legislative failures of this country. We suffer the faults of the first Republican Constitution of 1972 – Sirimavo Bandaranaike/Dr. Colvin R de Silva, and the next Republican Constitution of 1978 – J. R. Jayewardene. This article shows two major examples of related failures in the context of governance and the search for national leadership. These have contributed to the tragedy of today, with the rise of Islamic terrorism and the shocking failure in political leadership in both Government and Opposition. Let’s first look at the issue of the Office of the President and the Defence Secretary.

Hemasiri Fernando, former Defence Secretary, is deservedly whipped for his dangerous inaction on the information received about the planned Islamist terrorist attacks on Easter Sunday. His failure to bring prior intelligence about the terror attacks being planned to the notice of the President, and the Prime Minister when the President was abroad, and failure (along with other key officials) to attend a meeting on national security called by the Prime Minister, shows the dangerous effect of political divisions between the President and Prime Minister affecting the substance of governance; especially, in the context of national security, and how such divisions influence the thinking of key administrative personnel.

The actual cause of this crisis remains with the changes in the administrative structure of the country brought about by the first Republican Constitution of 1972.

Take the office of Defence Secretary. How is a person who has no knowledge or experience in Public Administration selected to hold a key office as Defence Secretary? Hemasiri Fernando was the Chairman of a State Bank, head of the National Olympic Committee for many years, an officer of the Sri Lanka Navy, and a writer of several books, with a good knowledge of the Sri Lanka Railway. Did any of this give him the experience and capability to hold and manage one of the most important offices in the country’s governance? No, they did not. In making this appointment, President Sirisena has followed the current trend in the administrative process, which pays little heed to experience and capability. This is clearly the result of doing away with the Civil Service and replacing it with the Administrative Service, enabling politicians to appoint persons with no administrative experience to key positions in government.

Hemasiri Fernando was the fourth person to hold this office under the current President. He was also the Chief of Staff of the President’s Office.

Through the decades since the Civil Service was done away with, this country has seen a continuing increase in political appointments to key positions in government, especially, secretaries to ministries, making the relevant ministries and departments stuffing holes for political catchers.

This trend continued from the Sirimavo Bandaranaike presidency, much more in the JR Jayewardene presidency, and through the presidencies of all others who followed, with family membership and relationship, friendship and political connection being the reason for the selection of persons to positions of importance in governance. The Hemasiri Fernando situation is the pit of disaster that the current Administrative Service with its political ramifications has brought the country to.

The abolition of the Civil Service has seen the steady decline in the administrative capabilities of key officers, and the rise in corruption and favouritism in the entire process of governance. The failures in the current presidency, such as the former Chief of Staff now charged with bribery and corruption, and even the initially considered replacement to this position, shows the threat of this system, with no heed to experience and competition, to both governance and society.

Beyond the Maithripala Sirisena/Hemasiri Fernando disaster, we must also try to understand why the key police personnel informed of the threat of the Islamic terror attack by India, did not (if they did not, as publicly said by President and Prime Minister) bring this danger to the notice of all required persons in governance.

Were they more concerned with the political rivalry of the leaders of government, or were they wholly ignorant of the nature of the threat they were informed about? Is it not a clear example of the ramification of politics into the process of administration, increasingly threatening the proper functioning of government?

Apart from politicised administrators, what of the politicians themselves, many of who were aware of the spread of Islamic radicalisation, associated with rabid Islamization in the Middle East, through the past two years or more? Were the largely Muslim politicians, and political leaders of their community, wholly ignorant of trends in Islamization? Or, were they only interested in the profits of politics and the pervading corruption that has become the keywords in today’s governance? Does this also not raise the questions about the effect of community related political parties that move away from wider national politics?

Just like the President and Prime Minister saying they did not know or were not informed, they too are kicking the same escape phrases in the politics of ignorance. Of course this cannot be shown as a wholly minority approach. They are with the majority of politicians, of every colour, symbol or slogan. The politics of the corrupt!

While the appointment of Hemasiri Fernando to this key office remains the focus of attention, it is certainly not the only administrative failure. The problem is the absence of a proper criterion for the selection of a person to such a post. Is retirement in a key office of administration or the security forces a proper or only criterion for such selection? Do former commanders of the forces, after many years in retirement, become the ideal choice and how?

The need is for complete change in the system of senior administration in the country, with the necessary constitutional and legislative changes, bringing back the principles and values of the old Civil Service, and the relevant trends in modern democracies.

Today’s major issue of a lack of proper political leadership in the country, especially, future leadership, is due to the 1978 – J. R. Jayewardene Constitution.

The Easter Sunday tragedy highlights the major defects in the country’s constitutional structure, and suggests even looking at the benefits of Soulbury, against Colvin R de Silva and J. R. Jayewardene.

Today’s absence of good political leadership is largely due to the abolition of the electorate based representation in Parliament (and other electoral bodies) with the District Representation system. Under the old system the voters knew who they chose from their electorates, being persons who had direct association with the voters and their needs and goals, both social and political.

What we now have is a system where MPs are elected from whole districts, often with no relationship with a particular electorate, and much less with the voters. It is a system that engenders large scale corruption, due to the huge expenses in district-led campaigning. The rise in the cost of contesting the polls has led to honest political personalities with a commitment to service, to keep away from the polls.

The result is the promotion of the family members of current representatives to move into the district system, keeping out those dedicated to service. This is clearly seen in the increasing number of family members of current elected politicians taking to the polls, with no records of leadership or commitment to service. This also increases the impact of caste and other ‘popularity’ factors, than a political program with loyalty to service.

The continuance of this system will give no room to the rise of good political leadership in the country. This is seen very clearly in the current national leadership crisis. The UNP has a leader who remains through party manipulation for nearly three decades.

The leadership contest within the party is not one of democratic acceptance. The SLFP has a leader come through a constitutional twist brought by the former leader to serve him – whoever is elected President of the country, shall be the party leader.

It served the successor who defeated him nationally representing anti-SLFP forces, with no democratic choice within the party.

The SLPP or Pohottuva is still uncertain of its formal leadership, and shows the full impact of family politics in leadership and presidential candidacy.

The leadership trends seen in the minority parties – the TNA and the Muslim parties also show the problems that flow from the District Electorate system, as against the former Electorate System. The situation is made worse by reducing the number of votes obtained for election from a district to 5.5% - which only serves narrow sectarian forces, and not a wider population.

What is urgently needed is to move back to the pre-1978 electoral system, with election from electorates and not districts.

It was a system that produced leaders in the country, from all political parties, and also saw the replacement of MPs through by-elections. What we now have is a whole mockery of democracy, with those who are elected from a district, but not having enough seats, being the replacements for those who depart through death or expulsion – but hardly ever through resignation, unless for a crooked political promotion.

The necessary change in bringing back Electoral Representation is to do away with the First-Past – the Post (FPP) system, which goes against the majority of voters. The person elected should have over 50 per cent of the votes cast in the election, which is a true majority, e.g. under the old FPP, in an electorate with 100,000 voters and eight candidates – the person who wins may get 25,000 votes, and the balance 75,000 votes would be divided among the seven rivals. That is not a majority selection.

We should look at the French system, also followed in other European countries, of an election in two rounds. In the first round the candidate who gets more than 50% of votes cast is elected. In the absence of such a count, the next round will only have those who came 1st and 2nd in the earlier round. This would definitely give an over 50% majority to the winner.

Moving to such a system, with emphasis on the Electorate and not the District, would certainly help in building both regional and national leadership. We must also note that the original minimum of 12.5% of votes for a member to be elected from a district, was reduced to 5.5 % on a call by the founder/leader of the Muslim Congress M. H. M. Ashraff, (during President Premadasa) which has led to the election of small group leaders, especially, from the Muslim community, leading to questions about their actual leadership of the community. A proper system of national elections would contribute to the strengthening of democracy, and moving away from sectarianism.

It will also be useful to learn from other democracies and prohibit cross-overs from a political party one is elected, to a rival party, without such a change being endorsed in a by-election. This too was a good tradition we had in the past.

The current socio-political crisis in the post-Easter Sunday tragedy, calls for studies of the prevailing faults in governance, through constitutions that gave more importance to party political gain than the principles of democracy. We are reaping a harvest of growing political humbug, leading to a negation of the democratic process, where the benefits of crooked politics outweigh the values of democracy and good governance.