Executive Presidency or Executive Prime Minister?

By Dr A.C.Visvalingam

(November 28 , Colombo, Sri Lanka Guardian) Chandrika Kumaratunga promised the people of Sri Lanka that she would abolish the Executive Presidency if elected to that position. Long after the promised deadline, she produced a draft of a new Constitution to get this done but, at the last moment, introduced certain transitional provisions designed to help her to retain indefinitely almost as much power as before. The Opposition UNP wrecked her self-serving plan but she continued as President until the end of her foreshortened second term.

It was during her period of office, in 2001, that the 17th Amendment was passed unanimously by Parliament, with a view to eliminating political interference in appointments, transfers, promotions and disciplinary matters pertaining to the Public Service and the Police; the conduct of Elections; the safeguarding of Human Rights; the Judiciary; and similar important sectors. It did not take her very long, however, to find a technical loophole to violate the 17th Amendment to justify her refusal to appoint a retired judge to be the Chairman of the Elections Commission, as recommended by the Constitutional Council, alleging that he was sympathetic to the UNP, which he denied strongly. This was the thin end of the wedge which, subsequently, has been driven in to its full depth to make a mockery of this most important constitutional amendment that Parliament has passed in its 61 years of existence.

Mahinda Rajapaksa, too, promised that he would get rid of the Executive Presidency on becoming President but has shown no inclination to honour his word beyond making further promises. Both Kumaratunga and Rajapaksa have taken cover for their various questionable acts behind the widely held, but erroneous, belief that, not only is a President personally immune from being hauled up before the courts while holding office but that he has "blanket immunity" that renders his acts proof against judicial examination and correction. The authentic position is quite different, and was succinctly set out by Justice Shiranee Thilakawardena in her dissenting judgment in a recent Supreme Court (SC) order. She held that the President cannot rely solely on a single Article of the Constitution to justify an act of his because he is concurrently under the same Constitutional mandate to act in accordance with the Doctrine of Public Trust. Simply stated, no Article of the Constitution may be given greater prominence than or read in isolation from another without being interpreted in accordance with the pith, substance and spirit of the entire Constitution. Inter alia, a President cannot claim that his personal immunity permits him to violate the Constitution or act unlawfully. Indeed, this issue had been cleared up sixteen years earlier by a bench of nine Supreme Court judges in Visuvalingam vs Liyanage [see (1983) 1SLR p203 onwards] but their dictum has received little public attention.

The Executive Presidency, as formulated in the present Constitution, does not include straightforward provisions for restraining a President from violating the Constitution and desecrating his oath to uphold the Law. The impeachment process that is included in the present Constitution is utterly cumbersome and totally inappropriate to deal with infractions of the Law by a President. Nor would the recent Opposition proposal to have the Executive President replaced by a figurehead President, together with an Executive Prime Minister, offer a good enough improvement, even if the 17th Amendment were to be purged of its shortcomings and otherwise strengthened. What is required is that there must be a clear and effective separation of the powers of the Legislature (Parliament), the Executive (President) and the Judiciary in order to eliminate significant conflicts of interest. Such separation is indispensable to achieve good governance and establish the Rule of Law. Both Parliament and the Judiciary must be independent of the Executive, if the Executive is to be prevented from acting illegally, inefficiently or without demonstrating proper accountability.

Generally, initiating and passing new laws is undertaken by Ministers, subject to approval by the Cabinet. Once Cabinet approval is obtained, the relevant bill is forwarded to Parliament for debate and voting. Ministers then employ the power of the party whip to make sure that Parliament will not reject the bill. Not infrequently, ill-conceived bills are rushed through without the public being given an opportunity to study and comment upon them. Similarly, the Budget is made by the Executive and is only subject to nominal debate, which, for the most part, has little to do with the soundness of the proposals made therein. Hardly a single vote is examined meaningfully, so that, for all practical purposes, Parliament ends up by acting only as a rubber stamp. There is no effective barrier to prevent Ministers subsequently diverting funds to various ends which Parliament never had in mind when voting on the Budget. All this is made possible because it is MPs who are made Ministers, keeping one foot in the Legislature and another in the Executive. Thus, it becomes impossible for Parliament to monitor, independently of the Executive, the manner in which Ministers spend the moneys voted under the various headings.

In order to rectify this unsatisfactory state of affairs, the Legislature must be freed to examine stringently bills proposed by the government or anyone else and pass laws to meet the needs of the People without being overpowered by Ministers (part of the Executive) who remain in Parliament. It is Parliament that finally votes on the merits of the policies and proposals promoted by the Executive. Hence, it has the solemn duty of controlling the manner in which State revenues are collected and disbursed by the Executive. To do this satisfactorily, it should have fully functional and effective multi-party Parliamentary Committees, preferably chaired by members of the Opposition. These Committees would monitor the work of each group of related Ministries in real time to make certain that Ministers do not embark upon projects which have not been properly studied and approved by responsibly appointed and technically proficient committees, who would ensure that project evaluation and tender procedures are carried out competently and transparently, in accordance with long-established administrative procedures. These Committees would act in a timely manner and not carry out greatly belated post-mortems like COPE (Committee on Public Enterprises) or PAC (Public Accounts Committee).

The Citizens’ Movement for Good Governance (CIMOGG) considers that one of the key requirements to help attain a proper separation of powers is that any MP who joins the Executive, by being given appointment as the Prime Minister, a Minister or a Deputy Minister, must resign from Parliament and be replaced by whoever had gained the next highest number of votes from the relevant district, or on some other acceptable criterion. By adopting this arrangement, the Executive would be excluded from Parliament and thus be prevented from exerting undue political pressure on the Legislature. The procedures to be adopted to get Ministers to respond to questions raised in Parliament can be worked out on lines parallel to those followed by other countries where the separation of powers is well established.

During the present highly critical election period, the public needs to press for constitutional changes on the lines indicated above if Sri Lanka is to have any hope of becoming a truly democratic, law-abiding and prosperous nation. Political parties which update their manifestos to provide for the extensive separation of powers should be supported during the elections but, more importantly, kept thereafter under the constant pressure of public opinion to deliver on their promises. Moreover, in order to help mobilise the vast pool of knowledge and interest that the public has in maintaining good governance, it is vital that the Right to Information Act is passed without any further political bluff and skulduggery. Indeed, the Chief Justice had recently emphasised the importance of this Act in the presence of the Minister of Justice, whom we call upon to take genuinely meaningful and speedy steps in this direction.

-Sri Lanka Guardian