09/08/2005" by S.Costa, Attorney-at-Law, President, Kandy Litigants’ Association
Prof. S. T. Hettige has recently stated, "Today only the government is bearing the responsibility for the (Tsunami) problem and other parties have become alienated".
We have learnt to admire Prof. Hettige’s contributions in the press in the past for their commitment to rational objectivity. The alienation which he speaks of is one of the major social derangements afflicting the life of the community in this country. We would like to draw him into an objective consideration of what, in our humble opinion, are the actual whys and wherefores of this alienation, and what must replace them.
To the lawyer, or more precisely the constitutional lawyer, it is patently clear that the alienation Prof. Hettige speaks of is, in its broadest sense, and not as confined to the post-Tsunami problems alone, but the natural and inevitable outcome of the divisiveness bred by our Westminster system of Parliamentary government constituted by a Government Party exclusively holding the reins of power, and an Opposition who remain ostracized as some kind of "outcasts" in Parliament though representing almost as large a segment of the population as the Government so-called.
This structure inevitably breeds a devilish brew of incessant and acrimonious rivalry between Government and Opposition. As it so happens, the main Government and Opposition parties in this country are more or less evenly matched in strength, and basically hold to more or less the same type of policies. The irony is that the very emptiness of the reason to differ makes notional differences all the more senseless and bitter!
How disgustingly the acrimony is played out both inside and outside Parliament everybody knows only too well.
That grown up men and women make such a devilry and dereliction of public affairs is not only a sad, and tragic, reflection on them, but more importantly on the character of the system which can reduce even the wise to the level of such sorry fools. That society resigns itself to such a system is itself an alarming pathological condition.
In what we have to regard as a memorable critique on this system contributed to the "Dinamina" of 24th January, 2004, by Retired S.C. Justice, K. M. M. B. Kulatunga, it has been pointed out that not only is it impossible to eliminate the bitterness of political rivalry between Government and Opposition so long as we remain wedded to the Westminster system, but also, on the other hand, the existing Constitution makes no specific provision to say that the Ministerial portfolios should be awarded exclusively to the political party winning the majority of seats in Parliament, in imitation of that system. Thus its continuance is invalid.
The latter view makes such a fundamental departure from the generally received notion of what the Constitution is supposed to mean, that we venture, with respect, to translate the relevant part of Justice Kulatunaga’s observations verbatim as follows:
"That ministers should be chosen only from the political party securing the majority in parliament is nowhere mentioned in the constitution. Nevertheless, what has happened all along in Sri Lanka is that ministers have been chosen only from the political party that succeeds in winning the majority in Parliament. In This manner, the power of ruling the country is vested in only one party. This practice does not seem to be in conformity with the Constitution. Public expectations are not duly represented by giving all ministerial appointments to the party securing
The majority in parliament and thus vesting all power in that party only. The composition of the cabinet in a manner that does not represent the wishes of all the people is a violation of the sovereignty of the people as clearly set out in the constitution."
Thus, the effect of Justice Kulatunaga’s observations is to hand down a damning indictment on the practice of the Constitution as blindly followed in Sri Lanka for half a century and more.
Indeed, we make bold to firmly assert that, whatever be the interpretation of the black-letter law that ultimately ought to prevail, the actual result of the present system is virtually to negate the suffrage of half the electorate – and as such pure political lunacy. It is actually not too far a cry from the other problem of power-sharing bedeviling the life of the country from the North-East.
Besides, on the other hand, the Hon.D.E.W. Gunasekera himself, Minister for Constitutional Affairs, at a meeting in Kandy a few months ago, took occasion to point out that the rivalry between the two major political parties in Sri Lanka so checkmated the life of the community as to reduce this country virtually to a "FAILED STATE"!
Thus, the combined effect of both pronouncements is to render our practice of the Constitution both SPURIOUS and ANTISOCIAL.
How long are we to mimic this vicious puppetry just because it is the best our erstwhile colonial masters knew at the time in which to cast our constitution?
There is also another disturbing aspect about this antisocial mischief self-inflicted by the people of Sri Lanka, the overwhelming majority of whom are Buddhists. As the Latin tag has it, "Quot homines, tot sententiae," and if we are not to end up in bedlam with each one heading in a different direction, ‘toleration and compromise’ is the only way out. This serves to engage the ideal of the Buddhist injunction for dispute resolution, consultation eventuating in CONSENSUS. This is therefore the essential pre-requisite for national unity. Significantly, it may be said that foremost amongst those who have urged the two major parties towards national unity have been the Venerable Mahanayakes of Asgiriya and Malwatte in Kandy.
Curiously, this underlying necessity seems to have had implicit recognition over and over again through the practice on the part of most Governing parties during the past decade or so to invite the Opposition of the time to make consensus with a view to national unity. Needless to say, the expectation is naive in the extreme, and has never been met.
And, furthermore, as shown below, noblesse oblige dictates the obligation is entirely the other way round.
This also compels us to the necessary conclusion that the Government has no warrant for confining the reins of power within the grip of solely its own hands, the bugbear of our governance, on both counts.
Therefore, if National Unity is the desideratum, the onus is unequivocally on the Government to share the powers of governance with the rest of the Parliamentary membership pro rata the suffrage the latter, too, has received from the sovereign People. The ideal, as has once been deftly put, of GOVERNMENT WITHOUT OPPOSITION!
The logic of this compulsion as actually resting principally on the Government may be analyzed as follows.
Firstly, for the simple reason that it is solely the Government that has the power in its hands, to share or not to share.
Secondly, for the simple reason that, on the very respectable authority cited, its monopolization by Government is constitutionally spurious.
Thirdly, because, as pointed out by the other authority cited, it checkmates national progress in a largely Third World nation, and defeats thereby one of the greatest ends of government, the creation of an order of economic sufficiency for the community. Thus it is antisocial.
Fourthly, in a context of universal democratic equality – even the Prime Minster it is said is no more than primus inter pares - the Buddhist injunction to consensus serves to put the burden of practising the precept squarely in the hands of the party who can effectually implement it. This is none other than the GOVERNMENT!
Fifthly, because, by essential definition, it is inherently the obligation of those in authority to oblige - N O B L E S S E O B L I G E !
The foregoing outlines the simple short cut to the elimination of one of the most intractable thorns in the side of our governance. In comparison, most other points of controversy are trivial and secondary, and in fact would wither away once the first priority is allowed.
In the minds of many, our present constitution is in such an infernal mess that it is by the very gravity of the mess fast heading in the direction of the melting pot. This is an ideal pre-condition for the necessary radical changes – we should seize the opportunity, rather than tantalizingly give it the miss and perpetuate the existing misery. The initiatives must come from ALL leaderships, not only in politics, but other ranks as well.
As the great dramatist once said, "There is a tide in the affairs of men, which when taken at the flood, leads on to fortune. Omitted, all the voyage of their life is hemmed in sorrows and in miseries".
On such a tide are we afloat - NOW!
We fervently appeal to Prof. Hettige, and indeed other cognoscenti of the so many Universities in this country, to give generously of their wisdom to this nation in crisis.
As mentioned above, this applies to especially political leaderships of all ranks and kind, in whom lies directly the burden of steering the destinies of this country at this critical juncture in its affairs.
And last but not least, society at large must also learn to alert itself to the great issues at stake, to enable it to make the right choice when called upon to exercise its suffrage at the several opportunities now fast approaching.
Tailpiece: Upon just preparing to mail the foregoing, we have been startled by the remarkable similarity of thinking to hear over the weekend the comments of the Chief Minister for the Western Province at a recent Conference in reference to the practical identity of views shared by the two major political parties on the North-East question, and consequently the moral challenge lying upon them both to close ranks so as to hasten it to a final settlement. The comments seem to read like an unsolicited testimonial to the relevance and urgency of our message.