SL: WAR AROSE OF A FAILURE OF DEMOCRACY!!!

PARLIAMENTARY MAJORITY CANNOT JUSTIFY EVERYTHING..........JEHAN PERERA

The sharp reduction in the world price of oil would be a cause for relief to people in the great majority of countries that are oil importers. The price of oil in the world market has fallen by more than 200 percent. But in Sri Lanka this serendipitous outcome of the global economic downturn has not been passed onto consumers in full or even adequate measure. So far the reduction given has been about 20 percent. The government’s reluctance to pass on the cost reduction in a substantial manner to consumers threatens to escalate into a full blown political crisis with negative implications for the rule of law and constitutional governance.
The Supreme Court issued a directive to the government last week that the price of petrol should be further reduced. The court judged that taxes and other charges that amount to over 180 percent of the world price is an arbitrary and unreasonable use of the government’s executive power. Although an immediate government decision to reduce petrol prices was expected, this did not materialize. Instead Government spokespersons sought to justify the government’s high charge of petrol by saying that the government needs this money to sustain the war effort and pay for other subsidies to the people.

In the usual course of events, the power to fix prices of commodities would belong to the executive branch of government, as argued by government spokespersons. On the other hand, the judiciary is vested with the authority to judge whether the use of that executive power is reasonable and fair and is not arbitrary or irrational. This judicial power is part of the system of checks and balances in democratic societies. A properly functioning democracy requires the separation of powers and a viable system of checks and balances.

Unfortunately in Sri Lanka there has been a breakdown in this system of checks and balances. Two of the three great branches of government, the executive and legislature, have more or less coalesced by the fact that nearly all of the parliamentarians wh make up the ruling coalition are ministers in the government. Many opposition parliamentarians also have been co-opted to be government ministers. This leaves only the third branch of government, the judiciary, to perform the function of checking and balancing the executive and legislature.

Weak tradition

Even more unfortunately, in Sri Lanka the system of checks and balances has never been strong, due to the popular belief that democracy is about majority rule. There is only a weak or no tradition of the protection of minority rights. Ruling politicians are often known to say that democracy is about the minority having their say, while the majority has its way. It is this logic, with its unfairness to ethnic and political minorities that has led Sri Lanka to ethnic war and political crisis. Frustrated with the government’s lack of responsiveness, the opposition has threatened to take to the streets, which is doubly dangerous in this time of war.

Sri Lanka has faced a problem with the concept of checks and balances for many years. The turning point that entrenched the principle of virtually unfettered majority rule came with the repeal of the constitution provided by the departing British colonial rulers and the promulgation of the first republican constitution of 1972. The ideology behind that constitution was the premise that the sovereign power of the people was fully and completely vested in Parliament. The judiciary was made subordinate to Parliament and to the parliamentary majority.

The concentration of power and exaltation of the executive was taken farther by the government that followed in 1977. The executive presidency that accompanied the second republican constitution was vested with an excess of power. The country’s first executive president made so bold to say that the only power he did not have was the power to turn a man into a woman. But democracy cannot be restricted to decision making by an individual, even one voted in by a majority of the electorate or by the parliamentary majority.

There are times when a majority of the electorate and the majority in Parliament can decide wrongly or unfairly. This is why individuals are deemed to be vested with human rights which are inalienable and cannot be taken away even by governments voted in by large majorities. Sri Lanka has failed badly in this regard, time and again. The prevailing crisis of law and order, in which people continue to be assassinated, abducted and disappear with impunity has led to widespread criticism of Sri Lanka by international human rights organizations.

Protective judiciary

One of the best protections that societies have developed to enable democracy to function for the people’s benefit is to have an independent judiciary. In sustaining democracy an important function of the judiciary is to rule on whether decisions of the government are reasonable and just, and not capricious or self-serving, even if those decisions are backed by the majority in Parliament. This is precisely what the Supreme Court appears to have done in the case of the price of petrol.

One of the government’s justifications for keeping the price of petrol high is to sustain the war against the LTTE. Ironically, this war arose of a failure of democracy in the country. Even before the LTTE came into being, the mainstream Tamil political parties opted to campaign for a separate state for the Tamil people. As an ethnic minority they found themselves constantly outvoted by the representatives of the ethnic majority, who were able to obtain control over the government. The LTTE, with its militarism and terrorism, was a subsequent development.

Sri Lanka today requires politicians who will make laws that are accepted as just not only by the majority but also by the minorities, be they political or ethnic minorities. They also need to act according to the law, and not outside of it. The government has been stubborn in declining to implement the 17th Amendment to the Constitution, which requires the executive president to share his power of appointment of high officers of state with other political parties in Parliament. What is required today are politicians who respect the checks and balances of democracy, its separation of powers, and recognize that a parliamentary majority cannot do everything it wants.
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