Why do we need further constitutional reform?
Part I
“Commander in chief of the army, navy and militia, with the power of making treaties and of granting pardons, and to be vested with an authority to put a negative upon all laws,... is in reality to be a KING” (An Old Whig, 1787)
Ravi Ratnasabapathy-Monday, January 7, 2019
Citizens of Sri Lanka would do well heed this warning to the framers of the US constitution.
The Sri Lankan Presidency was, until recently, a fixed executive, not dependent or answerable to parliament and not removable except for limited reasons. Head of the State, the Head of the Executive and of the Government, and the Commander-in-Chief of the Armed Forces. With the power to appoint higher officials, Supreme Court judges, the Police Commissioner, Elections Commissioner it was, essentially an elected monarch.
Did Sri Lanka throw off the British crown only to replace it with local one barely half a century later?
In theory at least, the colonial administrators of Ceylon were answerable to a British Parliament. For all practical purposes, Sri Lanka’s presidency answered to no one.
The 19th amendment restored some independence to institutions but mere independence is insufficient. Their proper functioning is dependent on the attitudes and competencies of their members, a question that must be addressed. The 19A is also incomplete, to erase the legacy of decades of authoritarian rule and secure rights further reforms beyond the constitution are needed.
The problem is best understood if viewed from the perspective of what matters to citizens: individual freedom.
If we call ourselves “free”, how must individual freedoms to be protected and advanced?
The basic political question
The fundamental problem in political theory is two-fold: on one hand there is a need for an “enforcing agent” which will protect the individual from violations of his/her liberty; on the other hand is the problem of how to ensure that any “enforcing agent” does not in its turn become a violator of the very same liberty it was originally set up to protect.
The Roman poet Juvenal expressed it as “Quis Custodiet Ipsos Custodes?” [who will guard us from these guardians?].
The solution that eventually emerged is government which was:
a) accountable to the people,
b) strictly limited in its powers, and
c) a rule of law based upon notions of individual liberty and private property; both terms carrying specific meaning.
Individual liberty
Individual liberty, simply defined is freedom from coercion.
“Coercion occurs when one man’s actions are made to serve another man’s will, not for his own but for the other’s purpose.” (Hayek).
Coercion of a citizen: aggression, threats etc may arise from individuals, organisations (such as religious bodies) or the state.
“Free society has met this problem by conferring the monopoly of coercion on the state and by attempting to limit this power of the state to instances where it is required to prevent coercion by private persons” (Hayek).
This means the state is given the sole right to exercise coercion, but it must do so only to protect citizens from the coercion of others.
“Freedom is achieved by limiting some kinds of actions – coercive ones – in order to encourage other kinds of actions – non-coercive ones. The result is the increase of voluntary exchanges within the parameters of the law” (Lehto).
Property
Property is the difference between what is mine and what is yours.
In the classical liberal sense, it is the creation of a protected private sphere surrounded by limits that cannot be crossed without ethical transgression (Lehto). It is a person’s entire private domain, Locke considered property rights to consist of “life, liberty, and estate”.
Thus, you may not enter my house without my permission. Thus, you may not borrow my car without my permission. Thus, you may not violate my body (Lehto).
Property marks the limits of permitted action in a liberal society, the personal domain which should not be intruded into under any circumstances. “We may well detest other people’s religion, reject their political views, abhor their lifestyle, despise their manner and loath their habits. We may be shocked by their ideas and opinions. We may even worry that they are damaging their own health with drugs or their own prospects with their anti-social behaviour. But none of these are valid reasons for using force to try to make them act differently.”(Butler)
A regime of legally protected property rights, in the wide sense used here is a prerequisite for liberty: “the end of the law is, not to abolish or restrain, but to preserve and enlarge freedom (Lehto).
“Commander in chief of the army, navy and militia, with the power of making treaties and of granting pardons, and to be vested with an authority to put a negative upon all laws,... is in reality to be a KING” (An Old Whig, 1787)
Ravi Ratnasabapathy-Monday, January 7, 2019
Citizens of Sri Lanka would do well heed this warning to the framers of the US constitution.The Sri Lankan Presidency was, until recently, a fixed executive, not dependent or answerable to parliament and not removable except for limited reasons. Head of the State, the Head of the Executive and of the Government, and the Commander-in-Chief of the Armed Forces. With the power to appoint higher officials, Supreme Court judges, the Police Commissioner, Elections Commissioner it was, essentially an elected monarch.
Did Sri Lanka throw off the British crown only to replace it with local one barely half a century later?
In theory at least, the colonial administrators of Ceylon were answerable to a British Parliament. For all practical purposes, Sri Lanka’s presidency answered to no one.
The 19th amendment restored some independence to institutions but mere independence is insufficient. Their proper functioning is dependent on the attitudes and competencies of their members, a question that must be addressed. The 19A is also incomplete, to erase the legacy of decades of authoritarian rule and secure rights further reforms beyond the constitution are needed.
The problem is best understood if viewed from the perspective of what matters to citizens: individual freedom.
If we call ourselves “free”, how must individual freedoms to be protected and advanced?
The basic political question
The fundamental problem in political theory is two-fold: on one hand there is a need for an “enforcing agent” which will protect the individual from violations of his/her liberty; on the other hand is the problem of how to ensure that any “enforcing agent” does not in its turn become a violator of the very same liberty it was originally set up to protect.
The Roman poet Juvenal expressed it as “Quis Custodiet Ipsos Custodes?” [who will guard us from these guardians?].
The solution that eventually emerged is government which was:
a) accountable to the people,
b) strictly limited in its powers, and
c) a rule of law based upon notions of individual liberty and private property; both terms carrying specific meaning.
Individual liberty
Individual liberty, simply defined is freedom from coercion.
“Coercion occurs when one man’s actions are made to serve another man’s will, not for his own but for the other’s purpose.” (Hayek).
Coercion of a citizen: aggression, threats etc may arise from individuals, organisations (such as religious bodies) or the state.
“Free society has met this problem by conferring the monopoly of coercion on the state and by attempting to limit this power of the state to instances where it is required to prevent coercion by private persons” (Hayek).
This means the state is given the sole right to exercise coercion, but it must do so only to protect citizens from the coercion of others.
“Freedom is achieved by limiting some kinds of actions – coercive ones – in order to encourage other kinds of actions – non-coercive ones. The result is the increase of voluntary exchanges within the parameters of the law” (Lehto).
Property
Property is the difference between what is mine and what is yours.
In the classical liberal sense, it is the creation of a protected private sphere surrounded by limits that cannot be crossed without ethical transgression (Lehto). It is a person’s entire private domain, Locke considered property rights to consist of “life, liberty, and estate”.
Thus, you may not enter my house without my permission. Thus, you may not borrow my car without my permission. Thus, you may not violate my body (Lehto).
Property marks the limits of permitted action in a liberal society, the personal domain which should not be intruded into under any circumstances. “We may well detest other people’s religion, reject their political views, abhor their lifestyle, despise their manner and loath their habits. We may be shocked by their ideas and opinions. We may even worry that they are damaging their own health with drugs or their own prospects with their anti-social behaviour. But none of these are valid reasons for using force to try to make them act differently.”(Butler)
A regime of legally protected property rights, in the wide sense used here is a prerequisite for liberty: “the end of the law is, not to abolish or restrain, but to preserve and enlarge freedom (Lehto).
