By
N. Sathiya Moorthy

It may still be very disagreeable to some in Sri Lanka to refer to India in the context of giving successful functional shape to the pre-poll administrative and constitutional reforms promised by President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe.

Yet, there is no escape for all those celebrating this year’s electoral change in Sri Lanka to look at India’s success story of the past decades for pointers, if not outright guidance, unless they are still in the habit of re-inventing the wheel every now or again, or of cheating themselves and the nation, or both.

On all three major aspects of the 100-day reforms that the Sirisena-Ranil duo has promised Sri Lanka, India has vast and varied experience, from which Sri Lanka can learn quick lessons that are adaptable to its specific constitutional circumstances and political environment.

Size does matter, and to be fair to Sri Lankans critical of India for the 13th Amendment power devolution, they need to do their homework, rather than adapting the Indian or any other model wholesale, or out of sheer spite for fellow stake-holders nearer home, that too in the name of preserving national identity and security.

The 100-day reforms agenda has three salient features – one, curtailing, if not doing away with the Executive Presidency, revival of 17-A ‘Independent Councils’, introduction of an audit scheme, and also a ‘Right to Information’ law. The rest and possibly even more important aspects of contemporary Sri Lanka’s problems like the ethnic issue will have to wait until after the parliamentary polls for a solution, but even there the Indian model of power-devolution – not per se the letter of the law but the spirit of the same, and the evolved guarantees of the time – can make a difference.

‘Westminster model’ and more

Sri Lanka’s present day rulers need not shy away from opening up their internal discourses on all these subjects and more to national debate, if they have to find the right mix that would hold for long. It was in the absence of a national consensus that Sirimavo Bandaranaike’s First Republican Constitution (1972) and J.R. Jayewardene’s present day, Second Republican Constitution failed.

It’s not as if other nations and their Constitutions have worked, and more so in the case of India. In the case of India in particular, the dynamic processes both inherited and installed have adjustability and accommodation built into them to be able to survive and outlive any political tsunami even of the ‘emergency kind’ (1975-77). Sri Lanka has proved that where constitutional amendments would have been adequate to provide for changing environments and unanticipated circumstances, the nation had to end up re-writing the entire constitution as a whole.

More than making the process tedious, it also takes away the inherent sanctity attaching to the democratic process and constitutional manners. It’s this tendency that the present and future generations of Sri Lankans need to curtail. It’s also here that India’s constitutional and political behaviour could be a welcome reference point, to learn from and adapt to the local requirements (after clearly defining what those ‘requirements’ are).

Pillars of the Executive

It was in the lesser-known ‘U N R Rao vs Indira Gandhi’ (1971) that the Indian Supreme Court held that the president could not be allowed to function on his own without a council of ministers under a prime minister, after dissolving parliament. Even without the Supreme Court’s clarification, the Indian scheme had ensured that the president could not be dictatorial in dissolving parliament, and could do so only on the ‘aid and advice’ of the council of ministers under the prime minister.

For all practical purposes, the president and the prime minister under the Indian scheme were/are two separate pillars of the executive, which in turn is among the three pillars of any democracy. During the Emergency, the 42nd Amendment made it even more plain, to ensure that the president could act only under the aid and advice of the council of ministers, could ‘return’ any recommendation of the latter for reconsideration, but would still have to ‘execute’ the ‘executive decision’ of the other, not act unilaterally.

Years later, Sri Lanka would provide for such powers to the Executive Presidency in its Second Republican Constitution (1978). They would travel to Singapore and the world over for a functional executive model, but would not peep across the narrow Palk Strait, narrower than the Bering Strait that divided the US and erstwhile Soviet Union with their diametrically different governmental schemes.

Information on information law

In recent years, and even earlier too the constitutional office of the Comptroller and Auditor General (CAG) in India, along with the constitutional authority of the Election Commission, with additional powers vested more by the judiciary than the legislature, have proved that they could make the unwieldy Indian democracy, with its vast and varied populace and also divided and discredited polity work – and work wonders, too.

India also has a functional Right to Information (RTI) Act, whose loopholes also at times get/left exposed. Sri Lanka can learn as much from the original law and the court ordered improvements, as from the leakages that could be plugged in its brand new law, whenever codified. For such a legislation to be successful they have to address political expectations as much as popular aspirations.

The common socio-political culture in the two countries could make for easy understanding than adaptation than anything from the distant West, whose concepts do not always have to carry with them their own levels of ‘maturity’ and integrity to Third World destinations. The Sri Lankan form of ‘Executive Presidency’ and electoral practices are a case in point.

The underlying principle should be adaptation to local conditions in Sri Lanka, not to local leadership interests and individualism. That’s what went wrong with the past, be it in the case of Executive Presidency or even 13-A. Given his political acumen, J.R. Jayewardene gave India the 13th Amendment that the latter had culled, but not one to his own people, who might have deserved much more, if only he had removed the ‘Executive President’ – and not necessarily ‘unitary State’, as has been professed since – as the central piece of the new legislation. It was bound to fail, it failed. India, and not JRJ, took the blame for it.

Courtesy:South Asia Monitor