Tue. Sep 22nd, 2020

The 20th Amendment is a case where democratic mandate is being used to introduce constitutional reforms to undermine the crucial accountability institutions so that they could remove the checks and balances on the abuse of executive power – Pic by Shehan Gunasekara

 

Having ended a 30-year war in 2009, we are still struggling to achieve economic stability, rule of law and a well-functioning democratic state. Both MR and Yahapalana leaders with vested interests, in a game of democratic bluffing, had refused to seize the opportunities. They should stop destroying democratic governance any further. We urge them to now assure checks and balances, accountability, socio-economic development, after eleven years of deadly conflict.

War, therefore, is not over yet for the innocent citizens. Ours is an anocracy – a political system which is neither fully democratic nor fully autocratic. It is seriously vulnerable to political instability. And their manipulations. Parliament thus needs to be strengthened. It needs to be empowered to carry out its constitutional functions. We observe politicians yet into the bargain to enforce totalitarianism. They are also termed as dictators, despots, tyrants, and autocrats among others. 

The Auditor General

The Constitution has mandated that the Auditor General be provided with access to all books, records, returns and other documents: stores and other property; and be furnished with such information and explanations as may be necessary for the performance of such gruelling tasks, duties and functions. The AG has been constitutionally strengthened to perform his constitutional duties for the benefit of people. The Auditor General is the constitutional machinery established for the purpose of assisting the Parliament.

The AG’s role briefly is to safeguard, maintain and ensure financial integrity in the government. In other words, the AG is an authoritative officer of Parliament. He has been entrusted with a specific job by Parliament. In a democracy, not even the President should be allowed to prevent AG performing his constitutional duties. He is empowered to audit legality and regularity of financial management and accounting on behalf of the citizens. His duties include ensuring efficient and effective utilisation of the public’s purse for the betterment of the people. 

Are they crack-brained to propose the abolition of the National Audit Commission? In the proposed 20th Amendment Bill, Article 57 (4) says: “Every person holding office on the immediately preceding the date of commencement of this act, as the Chairman or a member of – (a) the Audit Service Commission; and (b) the National Procurement Commission, shall cease to hold office with effect from the date of commencement of this Act.”

As the then Head of State Mahinda Rajapaksa, together with other Heads of States, at the Commonwealth Heads of Government (CHOGM) meeting, held in Sri Lanka in 2013, affirmed their commitment to the independence of their supreme audit institutions. They all did so by stating in their final communique: “Heads recognised the contribution that strong, properly resourced and independent supreme audit institutions play in improving transparency, accountability and value for money to ensure that public funds are appropriately spent.”

Why don’t they, having agreed at various international fora, etc., commit themselves to drive up their productivity and performance by doing things better? We should, therefore, not allow our rulers to disband audit institutions which is of vital importance in a democracy. 

Constitutionally, ours is a democracy

Constitutionally, ours is a democracy, which has been advocating a system of strong governance for a long period. The Donoughmore Constitution established a Cabinet of Ministers as far back as 1931. The day-to-day decisions were taken by ministers and implemented by the neutral civil service. Civil servants were accountable to ministers. Ministers were accountable to Parliament. Another important feature of our political system is Members of Parliament are our representatives. Both politicians and bureaucrats should know whether they like it or not to serve the public interest only.

British idealist T.H. Green, in the 19th century, had provided an ethical framework for civil servants. Green had stressed the need to achieve integrity in their duties. Green had also pointed out that there needs to be a unified administration in which the officials too should ensure the common good – public interests at all times. This gives rise to debate whether the politicians or the officials are at fault.

Until the ’70s, we saw officials had always ensured the common good and good government. Ministers provided authority and officials provided expertise. Politicians in the past few decades have always been making decisions without reference to the public. They have been arguing that the bureaucracy needs to improve efficiency and work harder. In reality, they always had thought the bureaucracy was an obstruction to them. All they had simply wanted to carry out their orders whether they are just or unjust. Political analysts believe: “Once they are fattened on the public funds, they conceive a hatred for justice, plan intrigues against the people and attack democracy.”

Politicians all throughout were selfishly planning how to remain in power. In reality, they do not get involved in the electorate to do good politics. Green’s proposition too had been that politicians have always acted selfishly for short term benefits. Bureaucrats always in the past thought that they were there to ensure checks and balances. The governance system that existed under the Soulbury Constitution provided the strength and protection to public officers to say “no”. It was indeed a headache for our politicians. 

20th Amendment should be thrown into the dustbin

As we know, we have already had three Constitutions in our country, since independence. Sadly, democracy and constitutionalism did not march arm in arm that after the abolition of the Soulbury Constitution. In comparison with the number of ministers running governance in the country, we have a large number of senior public officers too. It is time to hold politicians and senior public officers accountable for their actions. Let me add, the 20th Amendment should be thrown into the dustbin.

The Whitehall system of government that had been in place in Sri Lanka for a period over a century is in great danger. It is purely because political elites have for too long been making decisions without reference to the public. We need a unified system of administration back again where we could ensure good governance for the common good. Haldane had argued that the relationship between civil servants and Ministers should be one of mutual interdependence and respect. He had argued Ministers should provide authority and officials must provide expertise in running responsible government. 

A new generation of absolutists of the calibre of Colvin R. de Silva, Felix R. Dias Bandaranayake, J.R. Jayewardene and Mahinda Rajapaksa began to change the game plan to suit the rulers in power. Democratically elected elites, in the name of their democratic mandate, supported by two-thirds majority in Parliament, launched projects to destroy constitutionalism, the rules, including the institutions that hold them accountable to their actions. 

It must be mentioned that long-standing democracies the world over have been falling apart during the last couple of decades owing to such self-seeking rulers. Sri Lanka is no exception. Edmund Burke, a philosopher, parliamentarian in the UK a few centuries ago, had said: “A disposition to preserve, and an ability to improve, taken together, would be my standard of a statesman.” We did not so far have leaders who promote the general good. They served themselves.

Dismantling inherited constitutional systems 

After the enactment of the 1972 Constitution initially, and thereafter in 1978, the role and the character of the public service began turning upside down. Democratically-elected presidents like Hugo Chavez in Venezuela (replaced by Nicolas Maduro in 2013), Evo Morales Bolivia, Rafael Corea in Ecuador and Daniel Ortega in Nicaragua have also used their charismatic leadership and their electoral mandates to dismantle by law the constitutional systems they inherited. 

Military dictators, who governed countries like Brazil (1964-1985), Chile (1973-1990), Argentina (1976-1983) Uruguay (1973-1985) and many more the world over, had taken steps to shut down legislatures, courts, independent commissions, etc. Morales and them, on the contrary, did not do so. They held regular elections and referendums. 

Their aim was also to consolidate power and to remain in office indefinitely, using democratic means. Such democracies like in our case, the world over, have retreated from their earlier standards. Political analysts believe that some constitutional democracies have been deliberately hijacked by leaders who use constitutionalism and democracy to destroy both. 

All that they need is to eventually eliminate a democratic governance system. People thereafter cannot exercise their basic democratic rights, to hold leaders accountable and to change their leaders peacefully. Such elites go on attacking the basic principles of constitutionalism because they are only keen to consolidate power and entrench themselves in office for the long haul. They are committed to destroying democracy. And that is in order to create a society of slaves and fools.

20A undermines crucial accountability institutions

For many Sri Lankans living overseas, they feel happy because the elections are duly held and democracy is in perfect health, according to them. The 20th Amendment is a case where democratic mandate is being used to introduce constitutional reforms to undermine the crucial accountability institutions so that they could remove the checks and balances on the abuse of executive power. 

I must add that during the era of the ‘mandarins’ prior to the 1970s, the bureaucracy occupied a strong position. They had rendered their services with dedication and commitment to the country. The core values were – integrity, honesty, objectivity and impartiality. Politicians began challenging the role of the permanent public officials. They conceived that the permanent officials were strong and too influential. And they were a menace. They strengthened the government of the day by developing and implementing policies to deliver the services favourable to them. 

The present Constitution has 19 Amendments. I must say except for the 17th and 19th, all those other amendments did represent a strong threat against democratic governance. May I add that all that have eventually contributed to a near competitive authoritarian regime.

Shouldn’t we think that these “legalistic autocrats” deploy the law to achieve their selfish and undemocratic aims? That is exactly what they have been doing since 1972. A constitutional democracy was flawed having given promises to sweep away partisanship, dysfunctions, gridlock in the bureaucratic order. Institutions that were run by professional administrators were given to people based on their political, familial and other social relationships.

Such appointees were, therefore, not loyal to the organisation. State resources were used for the benefit of their political bosses. Around the world, constitutionalism is taking a serious hit from charismatic leaders and the masses have now grown increasingly discontent with their political institutions. 

The decline in public trust is particularly pronounced in countries where they are hit hard by political, economic, security and economic crises. Shouldn’t we learn from the best in the private sector? The best businesses nurture talent, flatten management structures, reduce unnecessary red-tape, and improve outcomes while reducing waste, corruption and abuse.

Six characteristics applicable to a bureaucracy

It was Max Weber who had outlined that organisations need to be based on rational authority, where authority was given to the most competent and qualified people. Weber had named that rational organisation as a bureaucracy. Weber had outlined six characteristics that are applicable to a bureaucracy:

Hierarchical management: Each level controls the levels below and is controlled by the level above. Authority and responsibilities are clearly defined for each position.

Division of labour: Tasks are clearly defined and employees become skilled by specialising in doing one thing. There is a clear definition of authority and responsibility.

Formal selection process: Employees selection and promotions are based on experience, competence and technical qualifications demonstrated by examinations, education, or training. There is no nepotism.

Career orientation: Management is separate from ownership and managers are career employees. Protection of arbitrary dismissal is guaranteed.

Formal rules and regulations: Rules and regulations are documented to ensure reliable and predictable behaviour. Managers must depend on formal organisational rules in employee relations.

Impersonality: Rules are applied uniformly to everyone. There is no preferential treatment or favouritism

It was Weber’s thinking that bureaucracy was so logical that it would transform all of society. Bureaucracy therefore it would result in the highest level of efficiency. The ‘pyramid’ organisational structure with responsibility split into ministries, departments, etc. is based on principles of bureaucracy. It is unfortunate the term ‘bureaucracy’ has taken on negative conditions. It is associated with excessive paperwork, apathy, unresponsiveness and inflexibility. 

Henry Fayol, in his book ‘General and Industrial Management,’ had incorporated Weber’s ideas and had introduced a set of management duties and principles:

Organisation: Provide resources to implement the plan; Command: Select and lead the best workers through clear instructions and orders; Coordinate: Make sure diverse efforts fit together through clear communication; Control: Verify whether things are going according to the plan and make corrections where needed.

Exceptional political and senior public official ‘will’ is indispensable at this juncture to save this country from further decay. Furthermore, we should now without further delay think of necessary reforms strategies, which should combine three components for action: enforcement of law; prevention of further decay through institutional reforms and mobilisation of the population for their own benefit.

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