BY Jayampathy Molligoda
The constitution of Sri Lanka is the supreme law of the country giving peoples’ power to the government of the day and limiting its powers to the constitutional boundaries. In the preamble of the 1978 constitution, the term ‘people’ is further clarified by saying ‘the people of Sri Lanka’ and not some people of Sri Lanka.
The power for making the constitution was derived from ‘the people of Sri Lanka’.It further states that the Parliament was mandated to draft a constitution in order to achieve the goals of the republic of Sri Lanka.
Directive principles of State policy
With regard to ‘achieving the goals of the republic of Sri Lanka’ as stated in the preamble of the constitution, the Chapter VI of the constitution under the heading ‘Directive principles of State policy and fundamental duties’ clearly spells out in detail, the objectives of the republic of Sri Lanka. To me this is one of the most important areas, where among other things, the economic objectives of the Sri Lankan society are clearly stated.
Few are worth mentioning; such as realisation by all citizens of adequate standard of living for themselves and their families and rapid development of the whole country by means of public and private economic activity etc.
The power for making a new constitution must derive from ‘the people of Sri Lanka’ and not some people
It further states that the State shall; (a) strengthen and broaden the democratic structure of government and the democratic rights of the people by decentralizing the administration (b) eliminate economic and social privilege and disparity and the exploitation of man by man or by the State. (c) ensure that the operation of the economic system does not result in the concentration of wealth and the means of production to the common detriment. (d) ensure social security and welfare of the people.
With regard to the present constitution making process, the Interim report of the steering committeewas presented to the Constitutional Assembly on 21st September 2017.The aim of the constitutional assembly is to replace the 1978 constitution. After perusing the document, I regret to note that there is hardly any focus on ‘economic welfare of the people’ as a goal in the draft of the new constitution. Instead, there is an undue over emphasis on the concept of maximum devolution of power and the debate on the unitary character of the State.
Present status of the constitution making
The report on ‘Public Representations on Constitutional Reforms’ popularly known as ‘Lal Wijenayake report-May 2016’ stated that it has been prepared based on public representations. However, this position is far from reality. The report says ‘Tremendous enthusiasm was shown by the public to make representations’. However only about 4,150 representations were received.The report admitted they had to rush through the report. They had to limit their public sittings in the districts outside Colombo only for two days. The report also admitted that the submissions they received are not based on statistical sampling. Therefore, it goes without saying that the findings cannot represent the whole population. It is unfair by the ‘majority of the people’ to force upon the recommendations arrived at by following the wrong methodology. According to our constitution, sovereignty is in the people of Sri Lanka and not some people.
According to media reports, the government has scheduleda series of meetings of the constitutional assembly on the 30th, 31stOctober and 1st November 2017. However, it is unlikely the government would be able to finalize the constitution to be presented in parliament before the budget presentation scheduled to be held on 9th November2017.
Already, there is agreement that the country should remain indivisible as has been from time immemorial. However, one can argue that when drafting the new constitution, there is more emphasis given to the concept of ‘granting maximum devolution of power’. What about goals of the Republic of Sri Lanka as stated in the Chapter VI, ‘Directive principles of state policy and fundamental duties’?
As I mentioned earlier, there is hardly any focus on ‘economic welfare of the people’ as a goal in drafting the new constitution. Aren’t we missing a point? Even in the constitution of the United States, in the preamble itself, states the six goals which includes social well-being of the American people. We don’t emphasize enough on social well- being nor environment sustainability in our constitution.
Economic (in)efficiency of devolution
The proponents of the devolution school tend to claim that the ‘economic growth’ is always associated with the devolution of authority. The capacity of such devolved administrations with greater autonomous powers to implementpolicies is supposed to deliver greater economic efficiency. There is however little empirical evidence to substantiate these claims.
According to London School of Economics study undertaken, contrary to the expectations of devolutionists, the degree of devolution is in most cases irrelevant for economic growth and, when it matters – as in the cases of Mexico and the US – it is linked to lower economic growth rather than greater economic efficiency. (Reference: Thesis by Andrés Rodríguez-Pose and Adala Bwire Published: August 2003 ISBN: 0 7530 1661) In their paper, they assessed the horizontal link between devolution and regional economic growth in six national contexts (Germany, India, Italy, Mexico, Spain, and the US).
Many scholars argued that a devolved system makes matters more expensive and more inefficient. And that is why countries make Unions, e.g., European Union, NFTA etc. Today, Sri Lanka is a global village linked with Internet, Facebook and Twitter, served by TV and radio channels, with many coming from outside.There is no justification of linking the ill-conceived concept of ‘granting maximum devolution of power’ with the goal of enhancing economic benefits to the people. Anyway, the word ‘maximum’ can only be used when there is only one independent variable in a given hypothesis. This is simple mathematics.
Taking out ‘Unitary State’: barking up the wrong tree
Coming back to the ‘Wijenayake’ report, the people expressed their view that the constitution shall provide a future vision of the country. However, it appears that they have not undertaken this assignment with a fresh and open mind. There appears to be no brain-storming sessions conducted and just gone with pre -conceived notions by the members of the committee.
One example is worth mentioning here. The report has given some recommendations under the caption ‘nature of the State’ considering the topic of ‘finding solutions to national problem.’ There has been no discussion at all on this subject matter defining what it meant by the ‘national problem’.
Already, there is agreement that the country should remain indivisible as has been from time immemorial
The recommendations of the committee for the “nature of the state” are based on the consideration of (a) finding a solution to the national problem, (b) democracy. These two cannot be mutually exclusive.Only one committee memberhas recommended that the unitary character of the ‘nature of the State’ must be retained. The committee members have recommended the retention of the Provincial council system as the 2nd tier although majority of the people have made representations to the committee that the existing Provincial Councils are essentially “white elephants”.
My own view is, as citizens we need to challenge and reject the whole methodology adopted in the constitution making process.
The power for making a new constitution must derive from ‘the people of Sri Lanka’ and not some people. The constitution makers must focus more on ‘achieving the goals of the republic of Sri Lanka’ as stated in the ‘Directive principles of state policy and fundamental duties’ chapter of our constitution.
Our country’s greatest challenge is sustainable development, meaning a nation that is economically prosperous, environmentally sustainable and continuously focusing on social well-being of people of this country. Therefore, the new constitution must provide a legal and administrative framework with a view to achieving our sustainable development goals.
What is required now is to devise an efficient legal and administrative system for proper decentralization of authority to be exercised at ‘grass root level’ and the power is vested in the ordinary citizens of this country to manage their own affairs within a stable ‘centre’ government.
This is the spirit of effective devolution as universally accepted. This will enable the government to undertake all the economic and social development programmes efficiently and effectively thus improving the economic well-being of the people. There seems to be a general consensus on this matter.
(Jayampathi Molligoda is a Fellow Member of the Institute of Chartered Accountants of Sri Lanka and he holds a FMIC Masters of Business Administration from the Post Graduate Institute of Management, University of Sri Jayawardhanapura. He can be contacted via email@example.com)