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| Thursday, 20 May 2004 |
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Point of view : 'A pure Westminster system is best' by M.A.Q.M. Ghazzali
It was said of an ancient king of yore, that His Majesty was quite perplexed, that his pet dog always had its tail curled in. His Majesty summoned his courtiers to find out a way of getting the pet dog to keep its tail straight. The courtiers went into serious consultations on the matter. Many suggestions were made; "tie a weight at the end of the dog's tail" said one committee of the courtiers; "hold the dog's tail in a straight piping for a few days" said another. The experiments were a failure when the tail curled in with the removal of the foreign object. The Court Jester had ideas of his own. "May I have the dog with me for a few days", he pleaded with the king. His Majesty agreed, albeit reluctantly. The Court Jester took the pet dog away, and starved it until it was too week to curl its tail. The desired result was achieved, and the pet dog's tail remained straight at least until the dog regained its vigour in the regal surroundings that was his abode. The constitution of a country cannot be like the King's pet dog with unbridled power concentrated in one authority that is immune from transparency and accountability. A constitution of a country is a set of basic and fundamental rules of conduct and governance. It must provide for the establishment of institutions of government, and rules for their coherent, smooth and complementary functioning with checks and balances on each other. The Westminster system provided a comprehensive and balanced group of institutions and rules for good governance. Edmund Burke referred to this system as "we ought to understand it according to our measure; and to venerate where we are not able presently to comprehend." Every rule, every institution, and every convention under the Westminster system is pregnant with political and legal significance. It is a system that cannot be tampered with, in part or whole by unorthodox tinkering, as happened in 1972 and 1978 in the case of our constitution. We in Sri Lanka had been exceptionally fortunate to have had a masterpiece of a constitution drafted for us, for independent "Ceylon" in 1948, by no less a person than the late Sir Ivor Jennings, a constitutional lawyer of modern times, par excellence. The Westminster system provides for good and democratic institutions of government that are regulated by rules and conventions. When the rules appear to have been exhausted in the operation of any aspect of the system, the conventions come into play with marvellous consequences for good governance. Endowed with such a system our country was politically stable through thick and thin until 1972. The first tinkering with the constitution came in 1972. The author of that constitution, the late Dr. Colvin R. de Silva was no overt venerator of the Westminster system, or for that matter anything that came from imperial quarters. He introduced changes to the 1948 constitution that were by and large, cosmetic in nature. The only exception was the change in the aspect of Parliamentary supremacy, and Judicial Review. Arguably the consequent merit to good governance was marginal if not negative. It however had the pernicious effect in giving the taste for tinkering to ambitious and crafty men. Come 1978, we had the buccaneering monster of a constitution created by the late President J. R. Jayawardene whose ambition and craft, is no secret at least in Sri Lanka. The circumstances in 1978, with one party having a 4/5 majority in Parliament, under which the constitution was created, was ideally suited for its operation as desired by its author. It gave dictatorial powers to the executive President while maintaining the appearance of a democratic process. Constitutional amendments were made during this period at the whim and fancy of the President. The proverbial "pet dog", robust and full of power, was in full control of its "tail". It could twist and turn its tail at will. The democratic institutions of the Executive (cabinet), the legislature, and the judiciary, the cornerstones of the Westminster system that are deemed to function as checks and balances on each other, moved swiftly and surely, to hang on the puppet strings in the hands of the executive President. Such a system cannot nurture democracy nor provide for good government in a changing situation. Presidents Premadasa and Chandrika Kumaratunge in her first term in office enjoyed but only a plain majority of their own persuasion in Parliament. They could not, therefore, tinker with the constitution; nevertheless they managed to amble along with the governing process. However as it was sure to come, the situation changed to a President and a parliamentary majority of different persuasions, as during the last Parliament. The true nature of the 1978 constitution came to the surface. Time and energy were spent seeking co-habitation by strange bed fellows. Between the President on the one side, and a Parliamentary group, claiming to command the confidence of the House, but belonging to persuasions different from that of the President, on the other, little was lost by way of love, trust and confidence. Power appeared to be devoid of responsibility, and responsibility indeed was devoid of power. A chaotic situation was, slowly but steadily overtaking our body politic, when we had a challenging dissolution of the Parliament. By itself the exercise was no solution to the problem. - If we had a "hung" parliament with a majority of the members belonging to a different persuasion from that of the President, the consequences could have been devastating. Fortuitous turn of events ushered in a Parliament with a larger group of the same persuasion as the incumbent President. Prima facie, the situation still cannot accommodate a comfortable procedure for the amendment of the constitution. No sooner the results of the election, showed a trend in favour of the President's group, the Minister of Foreign Affairs Lakhsman Kadirgamar, P C. spoke the first words of concern. "Constitutional Reform will loom large in the new Parliament" he said "however this will be a far cry as no party can hope to have a 2/3 majority under our proportional system of representation". However true and realistic the sentiments may be, the country cannot linger, any longer on the periphery of an unstable constitution on the one side, and the need for a realistic constitution on the other. All members of the House and all parties need to realise the urgency, and cooperate to repeal the current constitution and replace it with a workable set of rules- a constitution with the full complements of the Westminster system in tact. |
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