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People, who are over-conscious about money, strive to earn as much as they can in the shortest possible time. Some resort to crooked means of acquiring large sums. Few realise money is not everything but depends on it for survival. The poor sweat and exhaust themselves to earn pennies. Improvised beg for pennies in streets. Governments in debt plead for dollars
Whether you like it or not, money drives modern society. It is hard to think of an affair that costs no money. Being so familiar and too attached people take money for granted and rarely question what it really means. And tends to think of money in terms of currency notes and coins. Money is not something tangible but an abstract entity representing the worthiness of goods and services. Money can be moved across any distance at the speed of light, permitting beneficent transactions as well as laundering. It can be stored to postpone usage or invested.
Philosophers and economists have attempted to define money. According to Aristotle, money facilitate exchange of goods and serve as an assessment of worth – implying money has an intrinsic measurable value. Thereafter gold became the standard of money and the value of currency was defined in terms of weight of gold. Aristotle was materialistic, but his teacher Plato being more idealistic and abstract, disagreed. He denounced linking money to metals like gold and silver and declared money is only a symbol devised to makes exchanges of goods easier. More recent credit theory of money akin to Plato’s idea considers money as the entity that keep track of credit and debit in transactions of commodities and services. International Monetary Fund (IMF) states: money is anything that serves as store of value, unit of account and medium of exchange.
In physics familiar quantities such as length, weight and time are precisely defined in terms of fixed units. Money cannot be similarly defined to the satisfaction and precision of a physicist. It is a social attribute that emerged naturally.
The concepts in physics are understood and defined precisely. We feel temperature, it is the degree of hotness of a body, which can be measured using a thermometer. Physicists have understood temperature as average energy of random motions of molecules constituting the object. Money is also a measurable entity, but cannot be understood that accurately as the simpler idea of temperature.
Complex systems derived from a large number of mutually interacting entities acquire qualities absent or un-meaningful to an individual entity existing alone. We cannot talk about the temperature of one single isolated molecule. Likewise, money made no sense to earliest ancestors of humans, when each adult was singly dependent by himself for food and shelter. As humans advanced, the community noted there are individuals who perform better in certain tasks. Some were good at hunting, while other excelled in searching and digging yams. Why not exchange meat for yams and by how much? Three handfuls of meat for one handful of yams, because yams were a scarce commodity in the forest! The primitive tool makers had an opportunity. They would have exchanged stone tools for meat or yams; devoting lesser time for gathering food and gaining time for improvising better tools. This is the origin of barter system–exchange of goods and services. The barter marketing posed a natural hurdle; the producer of a certain item had to find a customer who possessed something he or she wanted to exchange – a double coincidence of low probability. With the advent of agriculture, grain became a commodity consumed by everybody. The quantity of it being measurable by volume; grain reached the status of a quantifiable commodity, adopted as the standard of barter – a form of money. However, grain money entailed problems. Grain cannot be stored indefinitely and instant transport of large quantities poses insurmountable difficulties. Thereafter, money shifted from grain to weighed amounts of noble metals; gold, silver and copper. Being rare and durable metals served as better exchange materials quantified in handy light weight pieces, which later transformed into coins. A community in a pacific island had used coconuts as the exchange material, one nut as the unit of money. Later, realising the inconvenience of transactions using a bulky object as exchanging agent, they resorted to a rare kind of sea shells. The pacific islanders had no contact with the continent, where metal money originated. Nevertheless, reverting from coconuts to sea shells in the pacific island is conceptually equivalent to going from grain to metal money in the continent. Things material or immaterial can represent money, provided counterfeiting is prevented. Today world has accustomed to paper money. Electronic money already there, might replace it in the future
A society progressing and moving forward, imperatively arrives at the concept of money. Aliens with capabilities similar to humans, if they exist elsewhere in the universe, would undoubtedly use money for their activities. A civilisation cannot advance without invoking the idea of money. How else they would exchange goods and compensate services? English novelist and historian H.G. Wells in his work ‘A modern utopia’ says, I do not see how one can imagine anything at all worthy of being called a civilization without money.
Is money also an evil?
Money is neither an evil nor a virtue intrinsically. Nonetheless, literature frequently portrays money as an evil. According to Aristotle man’s ambition and desire to make money are the most frequent causes of deliberate injustice. Bible says love for money is root of all evil. In the play ‘The Merchant of Venice’ Shakespeare writes a love for money can be deadly. Treating money as something sinister had also originated from the attitude of predatory money lenders. In early days when barter economy was transforming into a currency system. Peasants and workers were deprived of new commodities purchasable only with currency. Money lenders offered coins for unwarranted rates of compound interest. They quarreled and harassed peasants in the event of failure to settle the loan with due interest. Often the law of the land favored the moneylender, supported by corrupt officials of the state. When East India Company introduced their coins to Sri Lanka, moneylender exploited our famers. Folklore recite many such incidents.
Evil is not money but the manipulations of opportunists who grab money unfairly and illegally or use of money to inflect crime. Rightful earning of money is not considered a sin but a meritorious deed worthy of praise as told in Chulasetti Jatakaya.
Chulasetti who inherited his father’s position as the Treasurer of the King Brahamadatta was a man of unmatched wisdom-a Bodhisattva. One day on way to the palace he saw a dead mouse lying on the road. With a burst of foresight, Bodhisattva declared this is an opportunity for young man to be rich and marry a woman. A poor lad having overheard the words of the Bodhisattva, picked up the carcass sold it for one penny to a nobleman fondling a cat. With the penny he bought jaggery. Serving sweet and water to tired men returning from jungle after collecting flowers, he earned eight pennies. After a series of many other innovative pursuits, he earned sufficient money to buy a shipload of merchandise and sold them to wealthy persons in the town. One day he went to see Chulasetti and told him, I earned so much money because of your words. Chulasetti said, you deserve praise for earning money rightfully. I will give my daughter in marriage to you and transfer my wealth.
Money is neutral and innocent. The neutrality permits any person irrespective of his or her social standing to earn rightfully and become rich, whereas innocence allow rogues to pilfer billions. Society honors the former and condemn the latter.
A kilogram of sugar costs around 500 rupees in Sri Lanka and about 0.4 dollars in United States. On basis of these prices, can we deduce sugar is more expensive here than in United States? One would argue, as one US dollar amounts to about 360 Sri Lankan rupees, sugar is lot more expensive in Sri Lanka. But what made one United States dollar equivalent to 350 Sri Lankan rupees? The value of money is relative. Conversion rate of US dollars to another currency is absolutely determined by comparison of the average purchasing power of the two currencies. However, currencies are also marketable commodities, value determined by supply and demand, which depend on factors additional to purchasing power and determined by the foreign exchange market. The Central Bank adjust the value of local currency accordingly. Central Banks also have the authority to set the value of local currency at a desired level relative to the dollar. If the productivity of a nation is low, devaluation (depreciation) of its currency would be advantageous, whereas the impact of revaluation (appreciation) likely to be negative; when it comes to earning of foreign exchange.
Wages and prices of goods together decides money’s worth in the society. If you express price of sugar as a fraction of the average wage of people in United States and Sri Lanka, you can meaningfully conclude sugar is cheaper in United States. Obviously, this fraction remains independent of the unit of currency. Likewise, the fraction defined as: the average price of goods divided by the available supply of money remain invariant with respect to the unit of currency. Economists, conjecture that the price level of goods increase in proportion to the money supply. When a government print money to raise the wages, the price level escalates. Compelling workers to demand further salary increases and if implemented by printing more money, prices of goods continue to increase – an economic outcome referred to as hyperinflation. The price of goods can be reduced effectively only by boosting the production.
Nation cry for dollars, shouting we cannot purchase adequate quantities essential commodities without this brand of money. Hard money means a kind of currency accepted in international transactions and readily convertible. United States dollar stands as the hardest currency – competitively preferred in global business dealings. Other currencies acknowledged as hard are; Euro, Japanese Yen, Great Britain Pound, Swiss Franc and Canadian and Australian Dollars. A general consensus of credibility in transactions determine hardness. The countries where hard currencies originate are politically stable and economically sound offering a wide variety of quality goods and services. It is impossible to define a hard currency precisely. They originate as competitive selection of different brands of money.
Development plans and Monetary Policy
Every country obtains a portion of goods and services from abroad. Demanding foreign exchange which has to be earned and maintained as a reserve. Lower the productivity greater is the requirement of foreign money. Increasing production to optimize local requirements and delivery of exportable goods and services ensure hard currency earnings and economic stability. During past few decades many nations, previously classified as underdeveloped have achieved this goal.
Development plans and monetary policy of a nation are intimately linked. Monetary policy means management of money by a Central Bank to secure price stability and employment. Economic theories and empherical evidence indicate sustainable economic growth necessitates maintenance of a low price level. Unfortunately, foreign exchange heavily influences the price structure and availability certain goods, compelling governments in low income countries to go for loans, to be paid back with interest. The situation is critical when countries are heavily dependent on imports for routine consumption and development. If borrowed funds are not properly utilized or misused the consequences would be disastrous.
Improper expenditure of money by governments: Wrong policies
The greatest harm to an economy would be the diversion public funds to avenues having no bearing on production and social wellbeing. Such expenditures incur as massive projects commissioned without ascertaining economic returns or misappropriation.
Providing extraordinary financial benefits to sectors not commensurately contributing to the society, constrains the budget and discourages productive groups who agitate for fairness. Programmes geared for alleviation of poverty and employment are sometimes counterproductive. Poor should be supported to become rich providing substantial inputs, instead of stagnating them at the same level of deprivation giving token subsidies. Instead of exploiting cheap labor to earn dollars, country needs to introduce policies to breed high quality labour for domestic and overseas expectations. Increasing work force for shake of employment creates inefficiency.
The human resource turns productive and innovative only when they receive proper education. It is a myth to believe that a general education inclined only towards technology will nurture innovators. Educational reforms have to consider inculcating rational thinking, absence of which is the root cause of many social ills. Innovators are dreamers who undertake risk, dispelling myth. Our policies should be geared for the purpose.
An example of wrong policy that will go to history is banning of chemical fertilisers. Even a high school student who had assimilated science understands why the present-day food demand cannot be not met without concentrated fertilisers. The stupidity and motives of the politician is one thing, but a band of so- called experts advocated the idea. The ineffectiveness of their carbon, organic, microbial, bio and biofilm fertilisers has now been manifested to the nation and world at large. Agricultural specialists in our institutions did not (could not) turn out sufficiently vociferous to nip the foolish idea in the bud!
The fertiliser episode reflects a serious fundamental flaw in our entire establishment. Identifying all the factors (not necessarily pertaining to agriculture) and their elimination is absolutely essential to rebuild the nation.
Author can be reached via email: ktenna@yahoo.co.uk
Some suggestions to assist Sri Lanka in achieving a primary balance
1972: Another in a history of missed opportunities
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by Dr B. J. C. Perera
MBBS(Cey), DCH(Cey), DCH(Eng), MD(Paed), MRCP(UK), FRCP(Edin), FRCP(Lon), FRCPCH(UK), FSLCPaed, FCCP, Hony FRCPCH(UK), Hony. FCGP(SL)
Specialist Consultant Paediatrician, Honorary Senior Fellow, Postgraduate Institute of Medicine, University of Colombo, Sri Lanka, and Medical Journal Editor.
There are very many natural phenomena that act cyclically on this planet which are vital to the well-being of mankind. Some of these consist of various components of nature itself; such as carbon, oxygen, water, climate, and environmental temperature, in addition to a whole host of many other things as well. The oceans, the trees, the milieu in which we live, even natural disasters and all other endowments of nature, are all intimately related to these cyclical developments. All these sequences and rotations go in cycles where the alternate cyclical progression is repeated in a recurring fashion within certain confines and limitations imposed by Mother Nature herself.
However, this article attempts to elucidate a somewhat different type of cycles in nature where what goes around, invariably comes around as well. There are many instances of appallingly harmful occurrences that have come about, either through vagaries of nature or as man-made disastrous events, only to be followed by events that benefit mankind. For example, many countries, including Sri Lanka, from time to time, have been devastated by unbearable droughts which have gone on to cause mayhem, only to be followed quite often by periods of torrential rain and even floods. Natural disasters like tsunamis that cause untold misery and destruction are often followed by tremendously committed development of the affected areas. Floods are followed by relative dry weather and serenity that allow measures to undertake repairs to the damage caused. Wars are followed by periods of peace that allow definitive actions to be taken to mitigate the ravages of such combative conflicts. Accidental or inadvertent nuclear disasters are followed by decisive steps being taken to prevent a repetition of such catastrophes. Epidemics and pandemics are followed by medical advances that bring about weapons such as vaccines to fight against them. The list is very long and there is always some light at the end of the tunnels of desolation.
In such a context, it is of crucial importance to contemplate and reflect on the currently prevalent dire status of this pearl of the Indian Ocean. This country has been ravaged by an unprecedented pandemic, an extraordinarily virulent economic disaster, unimaginable public unrest, hitherto unknown electricity crises, crippling fuel shortages, unbearable food scarcities, terrible shortages of medicines and medical equipment, the ominously rising cost of living, as well as a whole host of other problems that appear to threaten the very existence of our nation. Almost all of these have been very definitely and undeniably caused by poor governance, rampant corruption and terribly unwise decisions taken by the powers that be, as well as a sense of indifference and acerbic obstinacy on the part of the legislators. Their stupidity most definitely knows no boundaries. The devaluing of our national currency has led to unbelievable sky-rocketing of prices with inflation going through the roof, threatening the very existence and even the right to life of the poverty-stricken and the marginalised. On the incompetent and shameful advice of certain hangers-on, the decision-makers have jumped in at the deep end without knowing how to swim even in calm shallow waters; disgraceful and dishonourable behaviour, to say the least.
The utterly disgruntled populace has come out onto the streets with protests and demonstrations that demand a political regime change. They are attempting to show very clearly that, people’s power is much more powerful than the people in power. It just might be shown up to be true, clearly and unmistakably, sooner rather than later. Many of our youth, the proverbial gems of our nation, the people on whom our future rests, wish to abandon ship and seek greener pastures in other countries, while others have elected to stay put and protest vehemently. At the present time, there is universal bleakness in the entirety of our beautiful land and the future seems so very uncertain and quite harsh. In effect, there does not seem to be even a remotely hopeful flicker of light at the end of this darkened tunnel of intense despair. We are languishing in a never-ending winter of discontent. For a large proportion of the people in our country, it may appear to be a virtually meaningless struggle for mere survival. Many believe that this is our death knell and that we will never be able to come out of this detestable quagmire.
Yet for all that, is this the end of the story for our lovely Sri Lanka? Surely and perhaps assuredly, this just cannot go on. Even the worm has turned at the moment. According to my theory of cycles, things decidedly have to change and come right back; perhaps quite emphatically for that matter. For that to occur, the necessary processes have to be catalysed and enhanced. Somebody or some people have to take this country and its people under his, her, or their, spread-out wings and turn things around. We need leaders with proven track records, not only in the political arena but much more so in all fields of life in this enchanting isle. They have to be proper leaders in the true meaning of the word itself. We need legislators who would have the wisdom, strength, honesty, courage and capabilities, to make a telling difference. They simply have to be worthy of the honours that would be showered on them, as much as deserving the power that they may wield, just to use those powers judiciously.
Politicians may and do come and they may also go, but we have to remain in our wonderful motherland. We need to get a motley crowd of people who are dedicated and honest to the core, to purposefully drag us away from this abyss of misery. Do we have people like that around? I do not know about statesmen and stateswomen but I know for sure that there are people in our land who are inherently capable, brilliant, honest and patriotic. Here, I am not talking about Sri Lankans who have made it big in other countries. I am referring to the home-grown variety; those who have stayed on in their land of birth, silently worked ever so hard while being in this country, and being neglected as well as being side-lined for all their trouble. This truly refers to the iconic words of Lakshman Kadirgamar, our Foreign Minister of yore, when he graphically implied that the cake was baked at home and only the icing was from elsewhere, far away from the shores of Sri Lanka.
On second thoughts, there perhaps are just a few politicians who might… just MIGHT… fit the bill. These are very definitely not the ones who spit out rhetoric, not those who shout from the rooftops till they are hoarse, not the suave rubbish-talking nincompoops with hidden agendas, not the ones who bask in the glory of family dynasties, not the ones who are criminals of the highest order, not the ones who would shamelessly rob our motherland, and most certainly not the types who are so stubborn and so arrogant that they think they are ‘it’. We do not need a set of worthies with delusions of grandeur nor those with personal crusades and scores to settle. What we desperately need are patriotic Sri Lankans with a futuristic vision and a committed mission, to guide our nation out of this miserable hell on earth, which is what Sri Lanka is today.
It has been said that nothing is ever over till the fat lady sings, and also that hope springs eternal in the human breast. So… be optimistic, people of Sri Lanka, and hold your heads high. We need to remind ourselves of the immortal words of President John Fitzgerald Kennedy of the United States of America in his Inaugural Address to the nation: “Ask not what your country can do for you – ask what you can do for your country“. He, President Kennedy, challenged every American to contribute in some way towards the public good. It is time that we too expectantly dared every Sri Lankan to put their collective shoulder to the wheel of progress in our country, the Motherland that desperately needs us to do such, and even more.
Towards that end, what we desperately need in this resplendent isle is the unstinted support of dedicated unselfish and honest politicians, with zero tolerance for all forms of corruption, harnessing of the positively charged bravado and the innovative spirit of the youth of our land, securing of the devoted commitment of the farmers, promoting the copious duty-consciousness of all the workers of our beloved country, and more than anything, catalysing a complete paradigm shift into a general sense of intense and compelling patriotism right throughout our birthplace.
We do hope and pray that this bountiful country will be able to rise from the ashes, just like the proverbial phoenix. We also hope and pray that in the not-too-distant future, we will be able to put our trials and tribulations far behind us, treat them like a set of ‘really bad dreams’, and sprint forwards to reach a summer of contentment, opulence and magnificence. Once that promised land is reached, we do need to take steadfast steps to look after our own people, especially the farmers who produce food for our populace. We need to put the welfare of the people of our country at the very pinnacle of prioritisation. We need to make absolutely sure that unforgivable and grave mistakes of the past are not repeated.
In such a context, we just cannot afford to leave such crucial endeavours totally to a group of our people known to all and sundry as the politicians. It is entirely up to each and every one of us to strive ever so hard to make all of it, the ever so sacred happenings of our time.
The writer wishes to convey his respectful recognition and highest appreciation of the lone leadership efforts taken by you both, within a rudderless and uncaring governance system, in leading the recently concluded virtual reviews with the IMF staff, seeking debt sustainability and an extended fund facility from the IMF, in the context of the serious socio-political and economic crisis that has engulfed this nation.
It is very evident that achieving a primary surplus at the earliest possible time by optimising state revenues, minimising state expenditure, eliminating all wasteful spends, inefficiencies in governance, leakages via state enterprises and corruption; and at the same time maximizing the options for deferment of all non priority spends, whilst making provision for cash transfers to the poor and vulnerable segments and enhancing spends that can generate early free cash flow returns, including investments in improving skills, efficiency/effectiveness/economy, factor productivity, strategic transition to capture emerging opportunities export market and global supply chain linkages; and creating new livelihood opportunities by attracting new foreign and local investments and upgrading Sri Lanka’s options to meet regional and global opportunities by embracing Industrial revolution 4.0 as a target; and eliminating the shortages in essential food, fuel and medicines should be the top priority of the leaders in governance.
In this connection a note titled “If I was the Minister of Finance” released before the last budget, provides some strategic options and the way forward in creating public support for implementing the essential hard decisions – refer
If I was Sri Lanka’s Finance Minister: Chandra Jayaratne
If I was Sri Lanka’s Finance Minister: Chandra Jayaratne
The writer is appalled by the statement made by the Prime Minister and Minister of Finance yesterday, if it means that the revised budget for 2022 merely incorporates a reduction of planned capital expenditure and includes an enhancement of salaries of state employees and expected to be followed by the private sector. Improvement of state sector efficiency and productivity; and enhancing the service delivery outcomes effectiveness; eliminating present wasteful deployment of human and financial resources are key action steps in any fiscal consolidation reforms in delivering improved growth contributions in the real sector.
A priority and essential hard decision to be taken now as a part of fiscal consolidation measures is to minimize the recurrent fiscal commitments under the budget allocations for defence, administration and non-free cash flow generating state projects and ventures; whilst improving human resource quality and productivity of state services and ventures.
All new recruitments, including those connected with replacements and existing cadre vacancies, must be signed off at the Secretary of the Ministry with the concurrence of the Secretary Finance. The present non defense cadre must be classified as essential for services being present in the offices, required but can principally operate from home with minimum travel to office, good to have and those who can be spared by appropriate working arrangements, outsourcing or systems/procedural restructure. The defence staff must be separated in to essential minimum cadre for internal security and others considered as minimum support cadre, with all those engaged in projects and other activities and in commercial activities or managing state projects being attached to the respective ventures, where they will be reclassified in a manner similar other state cadre referred to above.
All state sector employees should be required to contribute 10% of their salaries and allowances to the EPF, where upon due retirement only, they will receive the balance at credit in the EPF, together with an additional savings bonus equal to the contribution made to the EPF by the employee throughout the career. Those employees assigned to work from home will be entitled to 75 % of the salary and allowances with reimbursement of costs of periodic travel to the place of work. The balance staff members in the categories good to have and can be spared will be paid only 50 % of their salaries, when not deployed in skills development training; and if undertaking such training (the costs of which will be borne by the state) will receive 2/3 of their salaries for a maximum period of two years, unless they have been upward classified and reverted to active service with enhanced skills, secured alternative employment options or have been reabsorbed into other active duty within the state sector with enhanced skills and capabilities. At the end of the two years, this group of employees will be offered a redundancy package or will receive an allowance for the balance period of employment contract equal to 25% of the salary and allowances at the point of first discharge.
All state-owned ventures and projects and all commercial ventures of the defence sector or defence sector managed state projects will be assessed separately; during which period the salaries paid to such staff will be as in respect of other state staff described above; and within one year the viability and free cash flow generating abilities of these ventures will be assessed and decisions taken on their continuity and in regard to the deployment of the respective together with their entitlements and compensation.
All state spends on recurrent or capital budgets will be subject to strictly applied limits of authority; with all such spends in excess of set limits requiring approval of the Secretary to the Treasury or Cabinet with the concurrence of the Secretary to the Treasury. All such projects exceeding set limits are to be subjected to post audits and Parliamentary review.Wishing you both all success in your noble endeavours.
In the two earlier parts of this article, the writer dealt with the Constituent Assembly process that led to the First Republican Constitution and how the Constitution led to constitutionalising majoritarianism in multi-cultural Sri Lanka. In a country with a history of missed opportunities, 1972 was another.
A noteworthy feature of the 1972 Constitution is the recognition of fundamental rights. Principles of State Policy contained in another chapter were to guide the making of laws and the governance of Sri Lanka. But these Principles did not confer legal rights and were not enforceable in a court of law.
The fundamental rights guaranteed by the 1972 Constitution, however, were mainly civil and political rights: equality and equal protection, freedom from arbitrary deprivation of life, liberty and security of person, freedom of thought, conscience and religion, freedom to enjoy and promote one’s culture, freedoms of assembly, association, speech and expression, movement and residence and freedom from discrimination in appointments in the public sector. But all these rights were subject to such restrictions as the law may prescribe in the interests of national unity and integrity, national security, national economy, public safety, public order, the protection of public health or morals or the protection of rights and freedoms of others or giving effect to the Principles of State Policy.
Thus, even the freedom from arbitrary deprivation of life and the freedom of thought, conscience and religion could be restricted. While Principles of State Policy did not confer legal rights, fundamental rights could be restricted to give effect to such principles. In several cases, the Constitutional Court held that impugned provisions of Bills that were prima facie inconsistent with fundamental rights were nevertheless for the purposes of giving effect to Principles of State Policy. It is hard to see the rationale for permitting fundamental rights, which bind all organs of government, to be restricted in the interests of Principles of State Policy which are only for guidance in law-making and governance and are not enforceable.
Much has been said about the new constitution not having a provision equivalent to section 29 (2) of the Soulbury Constitution. While the fundamental right to equality and equal protection was a safeguard against discrimination, it was subject to wide restrictions, unlike section 29 (2), which was absolute. Also, section 29 (2) was in the nature of a group right. Although it was not as effective as it was expected to be, as was demonstrated by the failure to invoke it to prevent the disenfranchisement of hundreds of thousands of Hill-Country Tamils, numerically smaller ethnic and religious groups nevertheless felt comfortable that it existed, at least on paper. They saw its omission from the 1972 Constitution as a move towards majoritarianism, especially in the context that Sri Lanka was declared a unitary state, Buddhism given the foremost place, and Sinhala declared to be the only official language.
With the ‘Republic pledged to realise the objectives of a socialist democracy’, the non-inclusion of second-generation human rights based on the principles of social justice and public obligation is puzzling. Important examples of such rights that could have been included are the right to just and favourable conditions of work, equal work for equal pay, right to rest and leisure as an employee, right to free elementary education, right to food, clothing, housing, medical care and necessary social services and right to special care and assistance for mothers and children.
Section 18 (3) of the 1972 Constitution provided that all existing laws shall operate notwithstanding any inconsistency with fundamental rights. This was in sharp contrast to the Constitution of India, which provides in Article 13 (1) that all laws in force before the commencement of the Constitution, in so far as they are inconsistent with fundamental rights, shall, to the extent of such inconsistency, be void. The 1972 Constitution did not provide for a special jurisdiction of a court for the enforcement of fundamental rights against the executive arm of the State. Theoretically, fundamental rights could have been enforced through writs in public law as well as through actions for damages, declaratory actions and injunctions in civil courts. There is only one known fundamental rights case under the 1972 Constitution, Gunaratne v People’s Bank, a declaratory action arising out of the famous bank strike of the 1970s.
A significant feature of the 1972 Constitution was that, unlike under the Independence Constitution, a law could not be challenged for constitutionality. Post-enactment judicial review of legislation was thus taken away. Chapter X provided for pre-enactment judicial review. A Bill could be challenged in the Constitutional Court within a week of it being placed on the agenda of the National State Assembly (NSA).
A Bill which is, in the view of the Cabinet of Ministers, urgent in the national interest shall be referred to the Constitutional Court which shall communicate its advice to the Speaker as expeditiously as possible and in any case within twenty-four hours of the assembling of the Court.
An argument against post-enactment judicial review is that there should be certainty as regards the constitutionality of legislation. However, no serious problems have arisen in jurisdictions where post-enactment judicial review is permitted. To mitigate hardships that may be caused by legal provisions being struck down years later, the Indian Supreme Court has used the tool of ‘prospective over-ruling,’ limiting the retrospective effect of a declaration of invalidity in appropriate cases. Section 172 of the South African Constitution expressly permits such limitation.
Post-enactment judicial review is an essential tool to prevent infringement of constitutional provisions by legislative action. The effect of most legislative provisions is felt only when they are being enforced. Another argument in favour of post-enactment judicial review is that the people are able to get the benefit of the latest judicial interpretation of a constitutional provision. There have been many instances of obviously unconstitutional provisions going unchallenged. Provisions relating to urgent Bills have been abused by successive administrations. An urgent Bill is referred directly to the Supreme Court by the President even without a Gazette notification. Such a Bill is not tabled in Parliament before such reference and even Members of Parliament would not know the contents of such a Bill.
Under the Independence Constitution, the Chief Justice, the Judges of the Supreme Court and Commissioners of Assize were appointed by the Head of State, on the advice of the Prime Minister. The 1972 Constitution made no change in that regard.
In relation to other judicial officers, however, the provisions of the new constitution were very unsatisfactory.
Since 1946, the appointment, transfer, dismissal and disciplinary control of judicial officers had been vested in a Judicial Service Commission consisting of the Chief Justice, a Judge of the Supreme Court and another person who is or has been a Judge of the Supreme Court.
The 1972 Constitution provided for a five-member Judicial Services Advisory Board (JSAB) and a three-member Judicial Services Disciplinary Board (JSDB), both headed by the Chief Justice. A list of persons recommended for appointment as judicial officers and state officers exercising judicial functions would be forwarded by the JSAB to the Cabinet of Ministers, which was the appointing authority. The Cabinet reserved for itself the right to appoint a person not recommended by the JSAB, subject to the proviso that the full list of JSAB-recommended names and the reasons for non-acceptance of anyone so recommended were tabled in the NSA. Dismissal and disciplinary control were exercised by the JSDB, which was required to forward a report to the Cabinet through the Minister of Justice and a copy transmitted to the Speaker. A judicial officer could also be removed for misconduct by the President on an address by the NSA. J.A.L. Cooray considered the changes effected by the 1972 Constitution to be hardly compatible with the independence of the judicial function. (Constitutional and Administrative Law of Sri Lanka, 2nd edn, 69).
Under the Independence Constitution, the Permanent Secretary of each ministry was subject to the general direction and control of the Minister in exercising supervision over the departments coming under the ministry. The 1972 Constitution made no change to this position except to include institutions, such as corporations, within the ambit of the relevant provision.
Before 1972, the appointment, transfer, dismissal and disciplinary control of public officers were vested in a Public Service Commission appointed by the Governor-General. This position was changed, and the powers were taken over by the Cabinet of Ministers. Appointments were made after receiving recommendations from a State Services Advisory Board. The power of appointment could be delegated to the Minister concerned or by the Minister, in turn, to any state officer. The power of disciplinary control and dismissal was exercised after receiving a recommendation from the State Services Disciplinary Board.
The UF no doubt considered the bureaucracy to be obstructionist and wished the public service to be available to the government to accelerate socio-economic development. This is understandable. As Radhika Coomaraswamy has argued in Sri Lanka, The Crisis of the Anglo-American Constitutional Traditions in a Developing Society, the framers of the 1972 Constitution considered the checks and balances contained in the 1947 Constitution appearing to obstruct decision-making, perpetuating a status quo of privilege and domination. But rather than including appropriate constitutional provisions to ensure that political decisions were carried out by the bureaucracy, the entire public service was placed under the control of the political executive, eroding the independence that it enjoyed.
Legality and legitimacy of the Constitution
1972 was undoubtedly a legal revolution. According to L. J. M. Cooray, the question of the legality of the process followed does not arise. ‘One might just as well ask: Was the American War of Independence legal? The Constituent Assembly of Sri Lanka was part of a revolution, which aimed at overthrowing the existing constitution.’ As to the ‘legality’ of the new Constitution, Cooray stated: ‘It could be answered by posing the question: Does the stigma of illegality apply to the United States Constitution or to the Bill of Rights and the Acts of Settlement which followed the 1699 Revolution [of Britain]?’ A constitution becomes legal in the course of time if it is accepted by the people, the courts and the administration. This requirement was fulfilled in respect of the 1972 Constitution, Cooray opines. Constitutional Government in Sri Lanka, 1796-1977 (Lake House 1984) 246-247.
Legality apart, did the 1972 Constitution have the necessary legitimacy? With all political parties agreeing on the Constituent Assembly process, it was a unique opportunity to adopt a constitution that had the support of the people at large. But, instead, the United Front imposed upon the country a constitution of its choice.
Rather than impose its will on the Constituent Assembly, the UF should have accommodated the views of the various parties that answered its call to take the Constituent Assembly route. Such accommodation would have given greater legitimacy to the 1972 Constitution. That ‘legitimacy deficit’ of the 1972 Constitution no doubt helped J. R. Jayewardene, who succeeded the liberal-minded Dudley Senanayake as the leader of the UNP, to impose his own will in turn in the form of the 1978 Constitution with which the country is still straddled.
While the complete break from the British Crown, retention of the parliamentary form of government, the introduction of a fundamental rights chapter and declaration of principles of state policy were undoubtedly laudable, the 1972 Constitution also paved the way for majoritarianism and undermining of the concepts of the rule of law and the supremacy of the constitution.
1972 was also a historic opportunity to accommodate the diversity and pluralism of the people of Sri Lanka in state power and resolve the language question, an opportunity that tragically was missed. If the United Front had met the Federal Party halfway, the history of this country might have been significantly different.
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