by Dr. A. C. Visvalingam
The Citizens’ Movement for Good Governance (CIMOGG) is gratified by the recent decision of the Government not to press on with unilateral constitutional changes. Equally heartening was the subsequent meeting that President Rajapakse and some of his Ministers had with senior UNP Parliamentarians to work out a modus operandi for discussing proposals on the form and content of a new Constitution.
Whilst this is a good beginning, it needs to be appreciated that there is a profusion of stakeholders, besides politicians, with an even greater interest in seeing to it that a new Constitution will be clearer, fairer, more comprehensive, and with fewer loopholes than the present one. All concerned sections of society must, therefore, be brought into the process of creating a Constitution that would not have to be re-written whenever there is a change of the party in power, however distant the prospect may appear to be at present.
That politicians working on their own are not to be relied upon to frame or amend the Supreme Law of the Land in a competent way is proven by the shortsightedness exhibited in the wording of some of the provisions of the 17th Amendment and the shameless excuses given therefor, considering that, in 2001, Parliament passed this amendment virtually unanimously. Those who have studied this subject know that there are flaws and "flaws" in the 17th Amendment.
The genuine flaws, which over 200 of our MPs, including the current President, when he was in Parliament, failed to identify are those which have subsequently permitted the Executive and almost the entire Parliamentary establishment to violate or help violate the Constitution with impunity.
The "flaws", on the other hand, are those which the incumbent President refers to when he states, for example, that he should be free to make unchallenged appointments of his choice down to even junior levels in the Public Service and the Police force. In the furtherance of this objective, the 17th Amendment has been made non-functional and the Executive now does just as it pleases without any democratic checks or balances.
The argument put forward to justify this retrograde step is that the Chief Executive Officer of any organisation (in this case, the President of the State) should be able to pick and choose his team from among those he knows and trusts, if he is expected to fulfill effectively the tasks he has to undertake. Though there is a modicum of rationality in this argument, a little reflection will show that the analogy is not a safe one.
In the words of a former Secretary-General of Parliament: "Under this Constitution, the President is the Head of State, the Commander-in-Chief of the Armed Forces and the head of Cabinet. He can prorogue and dissolve Parliament at will any time after one year of its election. He can appoint any number of Ministers into his Cabinet from among the Members of Parliament.
He appoints the Governors of Provinces, the Judges of the Superior Courts, the Commissioner of Elections, the Auditor-General, the Attorney-General, the Secretary-General of Parliament and a host of other officers who hold the most vital positions in Government. The President thus has an iron grip over the Public Service including the Elections Department and the Police. This enables him to enjoy an unfair advantage when he himself is a candidate at an election. These powers assume a dictatorial character when taken in combination with the blanket immunity he enjoys from judicial process (Article 35) and the near impossible procedure for impeachment prescribed by Article 38 of the Constitution."
Having been bitten more than once before, the public must not remain apathetic whilst the Executive President’s powers are sought to be foolishly or surreptitiously transferred to the proposed "Executive Prime Minister".
The Executive is expected to set out its proposals for the socio-economic development of the Country but it is the People’s Representatives in Parliament who have been elected by the People to fine tune the priorities and allocate funds in a responsible manner. It is Parliament which has to satisfy itself that the Executive is not acting recklessly, unprofessionally or corruptly.
It needs to control the disbursing of funds and accounting for them, and must satisfy itself that the Executive adopts merit as the criterion in the selection of persons and organisations to carry out the multifarious functions associated with administering the resources and assets of the State. It is obliged to prevent the CEO of the Country (whether Executive President or Prime Minister) from appointing persons with poor credentials to important posts, either unwittingly or deliberately.
To take just one recent example, would any reasonable person accept that the individuals who were empowered to form and run Mihin Air were competent to do so? What were the credentials of those who advised the President to create this hugely loss-making airline, in the first place? Obviously, there is a specific necessity for Parliament to protect the People’s interests by seeing to it that the Executive acts prudently and in good faith.
Mihin Air is just one case. If, as CIMOGG consistently maintains, there had been a proper separation of powers between the Executive and Parliament, it would have been quite easy to stop the majority of ill-considered and wasteful projects at conception itself. Even in the case of projects and programmes approved by Parliament, it is entitled and duty-bound to have screening systems to weed out misfits, incompetents and those with a murky past from becoming part of the Executive.
We reiterate that what is required is as complete a separation of powers as can be practically achieved - similar to the provisions in the United States - where the Legislature monitors intensively the functioning of the Executive and controls the Nation’s purse strings and safeguards the People’s fundamental rights.
Taking a cue from the US example, Parliament, not being subservient to the Executive in the new dispensation that CIMOGG recommends, would be able to ensure that all nominees for high posts are subjected to thorough grilling by its relevant specialist committees (and those of the Senate, if there is to be one) or by some other institution on the lines of the presently non-functioning Constitutional Council.
All important initiatives by the Executive should necessarily be examined by Parliament and the People from the earliest stages to make sure that they fit in with tight fiscal control, human rights practices and good governance requirements in general.
For a proper separation of powers, no Member of Parliament or the Judiciary should be a member of the Executive. The fiction of Ministers being answerable to Parliament was best illustrated during the periods when the late Minister Jeyaraj Fernandopulle " questions addressed to virtually every other Minister, most of whom kept away from the Chamber in a show of utter contempt for Parliamentary practices and traditions.
One saw recently that the Speaker had to reprimand Deputy Minister Mervyn Silva several times for making a mockery of Question Time in Parliament. This type of preposterous behaviour is encouraged by the fact that members of the Executive remain members of the Legislature at the same time. In the most extreme case, what control would Parliament be able to exercise over an all-powerful Prime Minister who is assured of majority support in the House?
There are those who will argue that the combination of Legislature and the Executive works fairly well in the UK and India, for example, but then they would have to acknowledge that this arrangement functions more or less satisfactorily in these two countries because they have a strong Public Service, in all its aspects. This safeguard is no longer available to Sri Lanka after its independent Public Service was undermined initially by Minister of State J.R.Jayewardene appointing Anandatissa de Alwis as his Permanent Secretary and Prime Minister Sirimavo Bandaranaike demolishing the independent Public Service completely in the early 1970s.
Considering the huge number of financial commitments that the State makes, it would be impossible for Parliament to act as an investigational entity that looks into every project. Consequently, it is imperative that members of the public should be encouraged to bring to the notice of their MPs any discrepancies between approved programmes and actual performance.
There is no constructive way in which they could do this unless they have free access to all non-security related information related to every programme and project costing, say, over Rs25 Million. In short, appropriate White Papers and an effective Right to Information Act or a Freedom of Information Act, whichever term is preferred, are indispensable to good governance, and long overdue.
Many well-known political actors and commentators have expressed their concern regarding the dangers inherent in the current Constitution and the ways in which it is being violated. More recently, they have expressed alarm about the vague, but anxiety-inducing, proposed amendments being leaked out from the corridors of power in bits and pieces to assess public reaction.
The citizens of this Country must now take the bull by the horns and apply increasing pressure on both the Government and the Opposition to press for a comprehensive separation of powers and as many independent institutions as may be required to assure the public that there will be much greater accountability than in the past in safeguarding and developing the Nation’s resources and other assets, and giving merit its rightful place in the administration of these resources and assets.