The 1978 constitution’s executive presidency that was meant to bring about economic development has dragged the country down to the worst economic crisis we have faced since independence. The weakening of the constitutional restraints allowed by the constitution has made it so difficult for the people to hold the President and the government to account.
Today we have come to a point where the gap between the people and the representatives is so glaring that the people are unable to ignore it anymore. In the context of severe economic strain, people are compelled to take to the streets only because of the failure on the part of the government to act in the public interest. It is no easy feat to stand in the scorching April sun during midday and brave the thunder in the evenings. People’s determination to persist shows their urgent call to the institutions in the constitutional democracy to align with their interests.
President and the Cabinet of Ministers
Every officer of the executive including the President must perform their duties in a manner that lives up to the trust of the public. People are demanding that the President and the government resign and take responsibility. The President and the government are duty bound to heed the people’s call. Since they are refusing to heed the people’s demand, it is upon the system of checks and balances within the constitutional democracy to hold them accountable according to the constitution.
It is painfully obvious that Parliament is in a severely weakened position in the constitutional structure set up by the 1978 Constitution. While there have been attempts at strengthening the institutional capacity and role of the parliament, 20thAmendment has reversed even these limited progressive steps. As the constitution currently stands, the President has extensive powers over summoning, dissolving and proroguing parliament (Article 33 (c), read with Article 62 (2) and Article 70). These are ceremonial powers of the nominal head of the state in the British parliamentary system that are exercised on the advice of the Prime Minister. The concentration of these powers in the Executive President paves an easy way for the President to manipulate the parliamentary procedure using the constitution. This impacts the institution’s capacity to function independently.
Additionally, the Parliament is composed of members who have been elected to office through an electoral system that is in need of reform to enhance the accountability of the representatives to their constituencies. People have had to elect these members through parties that are not internally democratic and dominated by nepotism and patronage. Therefore, the caliber of the Parliament does not come as a surprise.
The majority of MPs have failed to heed the island wide protests of the people. Instead, they have chosen to delude themselves. Initially blaming it on the extremists, and that failing, government MPs are trying to blame it on the JVP. The extent of decentralization within the pro-democracy protests facilitated by the advances in technology seems to be beyond the comprehension of the majority of MPs.
Yet, it is this very institution that we must call upon to spearhead the political and economic solutions that people demand. Despite its sorry condition, Parliament remains the hub of our constitutional democracy. The challenge is how we get this institution to live up to its constitutional role.
Judiciary, the Independent Commissions and High Officers of the State
While the Parliament delays the required urgent response, people’s protests are impressing the other institutions within the democracy to perform their constitutional role. This was evident when lawyers appeared in large numbers at Mirihana police station to represent the protestors arrested on March 31 and appeared before the Magistrate’s Court for bail. Within hours members of the Human Rights Commission stepped up to their role by issuing a statement that these protestors cannot be tried under the Prevention of Terrorism Act. This is in spite of the fact that the Human Rights Commission’s independence is undermined by the 20th Amendment as the members are appointed directly by the President, only subject to the non-binding recommendations of the Parliamentary Council made up of a majority of government MPs (Article 41A). After a lengthy hearing, the protestors received bail late at night.
The judiciary and the Human Rights Commission are institutions that are optimally positioned to be responsive to the people’s call. Firstly, their constitutional role is to uphold people’s rights. Secondly, the Constitution, as well as politics, give theoretical significance to their independence, even if this value is susceptible to be undermined in practice. Therefore, people are seizing the opportunity to move these institutions to create further momentum for their demands. The lawyers asking the Colombo Magistrate Court to prevent the former Central Bank Governor from leaving the country is one example of this. The Supreme Court is hearing fundamental rights petitions on the declaration of the state of emergency and the social media ban.
There are also other independent commissions listed alongside the Human Rights Commission in the constitution. These include the Public Service Commission, the National Police Commission and the Commission to Investigate Allegations of Bribery or Corruption (Article 41A Schedule I). This is followed by a set of other commissions that are to be appointed on the recommendation of the Parliamentary Council such as the Public Utilities Commission (PUSCL Act, sec.3) and the Monetary Board of the Central Bank (Monetary Law Act, sec. 8 (2)). Despite these commissions not being listed in the constitution, their appointment procedure connotes that they are to enjoy a degree of independence from the executive. Following the independent commissions, the constitution also lists high officers of the state who are to be appointed by the Parliamentary Council. These officers include the Attorney General, the Auditor General, the Secretary General of Parliament, and the Inspector General of Police (Article 41 Schedule II, Part II).
The independence of these commissions and officers was weakened after the 20th Amendment. However, the constitutional reason for setting up a special procedure for appointing these commissions and officers was to ensure their independence from the executive. Therefore, this is the time for these commissions and high officers to look beyond the textual weaknesses and rise to uphold the overarching constitutional values of limited government and public trust that animate the constitution.
Sri Lankan public service’s independence was weakened since the Constitution of Sri Lanka 1972. Even while attempting to establish an independent Public Service Commission to handle the appointments and tenure of the public service, the 1978 Constitution leaves significant powers over these matters to the Cabinet (Article 55 (1) and (2)). However, the very title of the service is a good indication in whose interest they must act. Following the principles of our constitution, there are ample grounds for the public service to heed the call of the people as their paramount duty.
Provincial Councils and local government institutions
Provincial Councils, recognized by the 13th Amendment and local government institutions, whose powers are assured by the Schedule 9 – List I, item 4 of the Constitution, also have a responsibility to heed the call of people in their provinces and the localities. While the Provincial Councils are not elected at the moment due to the issues in the provincial election laws, local governments have a duty of responsible representation.
Institutions with specific roles recognized by the constitution
There are other stakeholders who are mentioned in the constitution for the specific roles they perform towards the progress of our constitutional democracy. These include lawyers who are to represent the people whose rights are violated (Article 126), and political parties that are to put forth candidates for elections (Article 31, Article 99). Lawyers led by the Bar Association of Sri Lanka have shown by example the way to heed the call of people by performing their constitutional duties.
Other organizations that contribute to the constitutional democracy
There are multiple other institutions and organizations that play a significant role within our democracy. These include civil society organizations, media, universities, professional organizations, businesses and religious institutions. These organizations have their own approaches but people’s protests are impressing upon individuals and collectives within each of these to contribute to constitutional democracy and, in certain cases, rethink their contribution.
While the parliament has the key role in responding to the crisis I also want to recognize the importance of pressure coming from all quarters to propel this institution to perform its role. People’s protests move the entire gamut of the institutions to break through the institutional weaknesses to perform their constitutional duties.
People have made their call. Their demands couldn’t be clearer. It is now the time for all the public institutions to heed the people’s call.