By Prof. Rajiva Wijesinha
Anyone who knows anything about political theory has heard of the doctrine of the Separation of Powers. This means that those who perform the active function of government, the executors or doers, should be distinct from those who lay down the framework on which action is taken, the legislators. That framework is created not only through laws, but also through the budget, the allocation of resources for the Executive. Because of this latter responsibility, the Legislature also acts as the monitor of Executive action, through oversight mechanisms.
Hardly anyone thinks that this doctrine of Separation is a bad thing. Obviously those who act should not also be the judges of their own actions. However we tend in this country to ignore the fact that the doctrine does not operate at all here. The simple fact is that all members of the Executive, apart from the President, are also members of the Legislature. The proportion of legislators who belong to the Executive, and see this as their primary function and responsibility, has grown and grown over the years. Since 1977 the proportion has been well over half of the majority faction in Parliament, indeed in the 1977 Parliament it was well over half Parliament as a whole.
This is particularly ironic, since that Parliament introduced a Constitution which was intended to separate the functions clearly, on the lines of France and the United States, which have an Executive Presidential system. The essence of that system is that those who act are outside the Legislature, which can then perform its Legislative and Budgetary and Oversight functions independently. Jayewardene indeed, before he became President, argued that he wanted full separation, because that would also help his Ministers to function effectively, without being subject to the demands of Parliamentary duties.
In 1977 however he changed his mind. Surprisingly, there has been no exploration elsewhere of why he did this, and the consequences of his final decision. I suspect the reason has to do with the actual result, which is easy and effective domination of Parliament, which became an unquestioning if well rewarded instrument of his will.
We thus had an extreme example of the total union of the Legislature and the Executive. One reason however for there to be no questioning of this was the assumption that Montesquieu’s original enunciation of the doctrine of Separation had been based on study of the British system, and therefore a dispensation based on that system could not constitute a travesty of the doctrine.
This is fundamentally to ignore both history and logic. When Montesquieu wrote, the Executive in England, as practically everywhere else, was the King. He chose his Ministers. If they were not in the House of Commons, he made them Lords, so they promptly became Members of Parliament. But in essence he was free to choose whom he wanted to help him in the Executive, and was not restricted to Members of Parliament. In fact the practice still continues, as in the case of recent British appointments to influential ministerial positions.
However, it certainly became the practice that the vast majority of Ministers came to be appointed from amongst members of the House of Commons. But membership of that institution, as discussed earlier, was readily obtained by capable people whom parties forming governments wanted, since they could be slotted into safe seats. Thus membership of the Executive continued to be decided basically on merit, with simple service as a Member of Parliament, for however long, not being seen as a significant factor.
Thirdly, given the relative size of the Commons and of the Cabinet, the vast majority of Members of Parliament had no Executive responsibility, so there was no great conflict of interests when Parliament or its Committees met for Legislative or Budgetary or Oversight purposes. Those with Executive responsibilities could be questioned without the assumption that the exercise was based on oppositional hostilities, and members of the governing party could also participate fully in obtaining information without it being assumed that they were acting in opposition to the Executive. In short, Parliament was essentially the field of action of Legislators and, though Ministers were the most important Members, they contributed while in Parliament to its legislative function, in which they were equal if conspicuous partners.
My argument then is that, if Members of Parliament are to properly fulfil their legislative and other related functions, they should not be members of the Executive. The Founding Fathers of the American Constitution understood this well, and the manner in which they ensured that Montesquieu’s Doctrine would be followed was by constituting the Legislature and the Executive separately. De Gaulle, in producing his own Constitution based on an Executive Presidency, kept the idea of a government based on the will of the people as expressed in elections to a Legislature, but ensured Separation by making members of Parliament resign from that body if they accepted membership of the Cabinet of Ministers. And of course he made provision for Ministers who had not been elected to be appointed.
This fulfils the primary purpose of ensuring that the Head of the Executive can – as in the old days when Montesquieu enunciated his doctrine – pick the best people available for Executive office, without being confined to Members of Parliament. But it also helps Members of Parliament to do their main duties as Parliamentarians better, and thus better serve the people who elected them. I refer not only to their legislative functions, including financial provision and oversight, but also their representative functions. They can concentrate on serving those who elected them, rather than having as Ministers to work for the country at large.
And this, I should add, will help overcome one problem, when Ministers supposed to work for the country at large concentrate instead on serving their own electorates. I know umpteen stories from Secretaries about Ministers who provided facilities disproportionately to their own areas, who provided jobs and special facilities (including trips supposedly for training) to a small proportion of the population. Such stratagems are difficult to stop when the Minister believes that his return to Parliament depends on them – but they make a joke of the responsibility to the country at large that membership of the Cabinet should entail.