A new Constitution to rescue country from political instability and economic stagnation

The main weakness of the present Constitution is the absence of separation of powers or checks and balances among the Executive, the Legislature or the Parliament, and the Judiciary

The purpose of this article is to point out the urgent need for a new constitution for Sri Lanka (SL) by analysing its faults and indicating the features to be included in it.

Present Constitution and political instability

It may be noted that it is mainly because of high inflows of Foreign Direct Investment (FDI) that the ‘tiger’ economies of South East and East Asia have prospered. According to UNCTAD, as of 2016, the stocks of FDI inflows in billions of USD to some of these economies, particularly of the ‘little tigers’ were: South Korea 185.0; Hong Kong 1,690.8; Taiwan 75.0; Thailand 188.7; Malaysia 121.6; and Singapore 1,096.3, whereas in the case of SL the stock of FDI by 2016 was only 9.7. FDI bring in locally scarce capital, technologies and global market access. There is also a need in a small economy like SL for FDI that produce (manufactured) goods and services mainly for export, as production for the small local market only cannot generate sufficient jobs and earnings for the country to prosper. These are the reasons for the great need to attract FDIs.

The main reason for avoidance of SL by investors is clearly political instability and the absence of security. In fact, the OECD Country Risk Classification for SL was previously 6 and currently 6; we are just behind war-torn Afghanistan, the risk classification of which was previously 7 and currently 7. Political instability in SL began in 1956, with the election of a leftist Government with preferential treatment for one local language and one religion. The result of this shift of power was the establishment of the Liberation Tigers of Tamil Eelam (LTTE), claiming independence for a Tamil ‘homeland’. They started a war in 1983, mainly in response to the anti-Tamil riots in that year; this war ended in 2009. The causes for the demand for a Tamil homeland, or the ethnic conflict, were never really examined properly and settled, even up to this date. Therefore, racial hatred, which has been simmering below the surface since 2009, erupted again in March 2018 in the Kandy area. So it is clear that foreign investors may fear that history could repeat itself, and affect the security of their assets and personnel. Even local investors may entertain such fears. 

Weak Bill of Rights

Another cause of the ethnic conflict in SL was the absence of full recognition of the rights of the minority communities in the Constitution (“None of the three post-Independence Constitutions of Sri Lanka (1946- 48), 1972 or 1978 make any direct reference to the rights of minorities”, H.L. de Silva, QC, The Island, 18/10/2003).

There is a Bill of Rights in the Constitution (Chapter III). However, it is to be noted that the wording of Article 15 of the Constitution seems to allow some space to legally restrict these rights. Further, there is no clause in the Constitution stating that it is supreme, as in the South African Constitution which states in its Article 2, ‘The Constitution is supreme. All law is inconsistent with its void'. However, Article 16 of the 1978 SL Constitution states that ‘All existing law, written and unwritten, is valid even if it is inconsistent with the existing Constitution.’ The devolution of power to the provinces given by the 13th Amendment to the Constitution, passed in 1987, is also questionable due to the existence of the ‘concurrent’ list contained in it; actually the central Government has taken the opportunity of encroaching into the powers of the Provinces by using it. It is therefore apparent that the Bill of Rights in the Constitution is quite weak.

No checks and balances

The main weakness of the present Constitution is the absence of separation of powers or checks and balances among the Executive, the Legislature or the Parliament, and the Judiciary. The 1972 Constitution gave the Executive, i.e. the President and the Cabinet of Ministers, the power of appointment and promotion of officials of the Public Service (by its Article 55) which was hitherto managed by an independent commission. The 1978 constitution gave untrammelled power (Article 33) to the Executive/President over the Legislature/Parliament where passage of laws is concerned. The Legislature has power over the Judiciary (particularly when a law is tagged as being ‘urgent’ (Article 80. 3). The Judiciary, on the other hand, has no power to review laws passed by the Legislature (Article 4c), especially if the Chamber can command a two-thirds majority. Thus the Legislature and the Judiciary are subservient to the Executive, and may therefore not lead to stable democratic government; such a situation may also result in poor law and order conditions, as the Judiciary is not independent.

Gives rise to corruption

Apart from destabilising the country, the 1978 Constitution has also been responsible for deep-seated and widespread corruption (Corruption Perception Index 2017 Rank, Sri Lanka 91, Singapore 3, and Somalia 180, out of 180 countries). It is mainly the system of elections provided by the Constitution that is responsible for this state of affairs: the unit of Parliamentary elections is the larger District and not the smaller constituency under the previous system; therefore the campaign expenditure incurred by candidates may run into millions of rupees, and such funds are normally made available by persons with dubious earning records, like selling banned drugs. The urge on the part of most candidates who become Members of Parliament is to earn the money spent on their campaigns, by hook or crook, i.e. from allocated State funds or by resorting to bribe-taking even from investors. They are also often compelled by these crooked sources to influence the legislation passed. Parliament therefore may not always heed the needs of the citizenry and the country, especially since there is no insistence in the Constitution for them to be honest and upright, as in the Constitution of Pakistan. To make matters worse. the all-powerful President under the 1978 Constitution found ways of buying the loyalty of the MPs, by extending incentives such as spending opportunities for the ‘development’ of their constituencies, and issuing permits to import mostly luxury vehicles at state expense; these vehicles are often sold sometime later at inflated market prices, and the proceeds pocketed by them.

No regulation of political parties

Political instability and corruption are worsened by the absence of clauses in the Constitution for regulation of political parties, whereas in most European Constitutions there are references to the regulation of political party activities, including adherence to democratic principles, determination of organisational structure, proscriptions of parties with ethnic, religious, and regional/national identities etc. (Ingrid van Biezen et al, The Place of Political Parties in National Constitutions: a European Overview, 2009). This omission in the SL Constitution allows political parties to ignore democratic, organisational, human rights standards, and even the wishes of the people. For instance, most parties in SL are ethnic-oriented; party leaders often select candidates who can bring in funds (does not matter whether they are from legal or illegal sources) and basically on the ability to collect votes by resort to any means – false promises, bribes, or violence if needed. This omission in the Constitution, in addition, weakens the loyalty of the Members to the party; this is why they could easily fall prey to incentives to join other political parties.

No qualifications for MPs

To make matters worse, there is no mention in the Constitution as to the educational qualifications of candidates for Parliamentary Elections. It is obvious that MPs need to be educated to be able to carry out their main task, i.e. passing laws and formulating national development policies; this omission makes it clear why the Parliament of Sri Lanka has produced few capable leaders to guide the nation to prosperity.

Two executive centres

The 19th Amendment to the Constitution was introduced to reduce the excessive power given to the President by the 1978 constitution and to cut down on the dangerous dictatorial power created by the 18th Amendment. However, to make matters still worse, the 19th Amendment brought about two executive centres, in the President and Prime Minister, instead of one, making room for friction between the two, especially if they are from two different political parties and backgrounds, as in the case of the present political situation (Articles 30(1), 33(A), 43(3); Darshan Weerasekera, Fatal Flaws in the Sri Lankan Constitution, 2012). This article aptly likened this situation to appointing two Captains to guide the ship of State through the rough seas of political instability and insecurity, which drove away the FDI that could have made this country prosperous!

Results of the omissions

A serious consequence of the above-mentioned weaknesses of the Constitution is economic stagnation in this country. This is indicated by an examination of per capita incomes: in 2017 it was $ 3,842 in SL, whereas in Singapore it was $ 55,236, in South Korea $ 26,152 and in Malaysia $ 11,522, according to the World Bank. Therefore, a high level of poverty prevails in the country. According to the World Bank, those who earn less than $ 2.50 per day in SL in 2012/13, were about 32% of the total population, and the rural poor were about 85% of the population; these numbers may be higher presently, due to the higher price of essential consumables, and the many natural disasters like floods and droughts. 

Another result of the low level of investment in SL, especially of FDI (the insignificant stock of $ 9.7 billion by 2016, some of it devoted to construction activities and not for production for export), and more specifically, the absence of a global economic orientation by this country, due to high import tariffs intended to protect domestic enterprises, is the sharp decline of export earnings: 13% of GDP in 2017, whereas it was 33% of GDP in 2004. This is the main reason for the build-up of external debts amounting to a massive $ 52 billion by 2017.

The world-renowned FDIs, which have entered the East Asian economies, especially China, and created large-scale export-oriented industries, have avoided SL. Therefore, there is an absence of such industries of such scale in the country, except in the case of the garments. Proliferation of industrial employment is essential for a small country like ours, as land for agriculture is limited. The inability to create such employment resulted in an excess of employment in the rural agricultural sector (26% of total employment in 2017). This has led to acute fragmentation of agricultural land (62% of holdings were less than one acre, according to the agricultural census of 2002) and encroachment of steep hill slopes as well as forested areas. The overall result is a drastic reduction of primary forest areas (2.6 % of the total land area, FAO, 2010) and of agricultural productivity (agricultural value added per worker in SL in 2017, $ 2,533 as against $ 18,124 in Malaysia and $ 22,703 in Singapore in the same year).

The political instability that has prevailed in SL from about 1983 has also driven hordes of SL technocrats and skilled people to leave the shores of the country (60,000 to 80,000 per year), mainly to more prosperous countries. As a result, according to the Department of Census and Statistics, there are nearly 500,000 unfilled vacancies, mainly in private firms, for skilled persons. Actually, there are a number of other shortcomings, besides skilled labour shortages, for the economic stagnation in SL, consequent on political instability; they are the poor macroeconomic policies of practically all Governments, the ineffective public service, the outdated system of education and vocational training, the low quality of physical infrastructure, the complex labour laws as well as rules/regulations, the high level of corruption, the poor law and order conditions, etc. 

Features of a new Constitution

It is felt that these weaknesses can be overcome only if a new constitution is created. Some of the features of this new constitution could be as follows:

i.Abolition of the Executive Presidency.

ii.Separation of powers and checks and balances among the Legislature, the Executive and the Judiciary.

iii.A complete Bill of Rights conforming to relevant international covenants. 

iv.Devolution of development power to the regions (districts, municipalities, town councils and village councils only, and not the provincial councils and the pradeshiya sabhas) with clearly set out powers.

v.Regulation of political parties, including clauses on financial control, qualifications of candidates for Parliamentary and Local Government elections, and an insistence that they do not resort to corruption or change of party loyalties, as well as a pledge that they would never incite racial and religious violence.

vi.An election system covering a mix of the first past the post and proportional representation, the area of the electorate being the smaller constituencies for parliamentary elections, and wards for local elections.

vii.A declaration that the new Constitution is supreme and all other laws are invalid if inconsistent with it.

Conclusion

It is now clear that the weaknesses of the SL Constitution have brought about political instability, economic stagnation to the country and poverty to its people. The inevitable conclusion, therefore, is that a new Constitution with the features mentioned above, and more specifically similar in all respects to those of the USA, India, and South Africa, is an absolute and urgent necessity to bring political stability and export-oriented investment back, to rescue the country from its massive external indebtedness and poverty. Otherwise there is a danger that SL may become a lawless failed state, like Somalia in Africa.

(The writer is a development economist.)