The Island: Features: by Dr. B. S. Wijeweera
In a refreshing departure from his English Literature tutorials published in The Island, Professor Rajiva Wijesingha (RW) published a five-part essay on The Role of Parliament in Promoting Good Governance. What is more refreshing is that he placed good governance as the end objective, the ultimate purpose, with Parliament serving as an instrument to achieve such end.
Under the Soulbury Constitution Parliament was required to make laws for the “good government of the Island”. At that time the term governance was not in vogue. The 1972 Constitution had as its guiding objective the progressive advancement towards a socialist democracy with an increased role for the state in production, distribution and exchange. The 1978 Constitution held out as its goal the achievement of a democratic socialist republic in which the means of production, distribution and exchange are not concentrated and centralized in the state. Thus, RW’s reference to “good governance’’ as the ultimate goal is very refreshing and should find a place in a future Constitution.
Flaws of the Present System
In the early parts of his essay he identifies certain serious weaknesses in today’s parliamentary system. He points out that Parliament does not serve the needs of the country; qualities required of politicians who can win elections are very different from those who can perform effective legislative scrutiny on behalf of the people; coherent discussion of policy issues is very rare; the current practice of MPs voting according to party dictates may serve the purpose of getting legislation passed but is not in the national interest; parliamentary questions are mostly on parochial issues not policy issues; very few MPs bother to wait for Adjournment Motions that are intended to promote discussion of issues of current national interest.
In relation to the behavior of ministers he is equally critical. Ministers are not present in the House to answer questions, that is invariably done by the Chief Government Whip. There is a tendency for ministers to use the resources at their disposal not for the well-being of the country as a whole, but to nurse their electorates.
His other observations are: that there are too many ministries for Consultative Committees (CC) to be really elective; often CCs cannot get a quorum to start proceedings; very few members of CC take the trouble to attend their respective meetings. He goes on to comment that though the two Committees on Public Accounts and Public Enterprises respectively made a good contribution in the past, in recent times they have achieved very little.
The Proposed Reforms: Electoral Reform
In the final part (Island, 07 April 2011) he presents his ideas on what should be done to remedy the situation. There are certain “house-keeping” matters that need not detain us, but his contributions on electoral reform and the relationship between legislature and executive are very pertinent.
In regard to electoral reform he endorses the current thinking of doing away with the district as electorate and reverting to the old smaller constituencies in which the voters elect one representative. However, he deviates from the 140:70:15 formula put forward by the Dinesh Gunawardana Committee on Electoral Reform by opting for a “dual vote system”, whereby people vote for individuals to represent them in constituencies, and cast a second vote for a party to represent them nationally. He explains that “the final composition of Parliament is proportional to the votes cast for parties, but people can vote for individuals not belonging to the party of their choice” at the constituency level. Since the final composition will be dependent on the votes cast for the respective parties, appointments on a “Party List” will be used for the topping-up exercise.
The “Party List” will not only provide for those who may not be willing to contest at constituency level but also for those individuals with “expertise” needed for the more sophisticated parliamentary functions of financial oversight and scrutiny of draft legislation. These proposals on electoral reform are worthy of serious consideration vis a vis the 140:70:15 formula, but the present writer would prefer to move on to the next item which deals with the relationship between Legislature and Executive.
Separating the Executive and Legislature
In seeking a separation of the Executive from the Legislature, RW acknowledges the inspiration from Montesquieu’s doctrine of separation of powers. He argues that MPs should not be ministers, but that the President should be free to select his Cabinet from whatever pool of expertise that is available to him. If a MP accepts ministerial office he should resign forthwith from membership of Parliament.
In this advocacy, RW maintains that the President will be able to cast his net far and wide in the search for talent to fill ministerial positions. It would also enable the MPs to better perform their parliamentary (legislative and financial oversight) functions and also their representative functions.
This idea of separation has been in the air for a long time. In fact, it is already there in the Constitution in Article 4, but has been mutilated by Article 44(1)(b) which requires ministers to be also MPs. The idea was proposed by the OPA during the presidentships of Mr. Elmore Perera and Prof. Indraratna. The CIMOGG, under Dr. Visvalingam, has been advovating this for quite some time. The present writer has contributed several articles on this theme. More recently Mr. Neville Ladduwahetty in supporting the idea has argued that Article 44 should be made subordinate to Article 4 (Island, 19 March 2011). There is thus a wealth of informed opinion behind RW’s proposal for separation of powers.
Parenthetically, it has to be pointed out that there is a well informed body of opinion that maintains that we should revert to the parliamentary executive system that prevailed under the Soulbury Constitution. However good this opinion may be it should not detract from a serious consideration of separation of powers as proposed by RW and others.
Separation of powers has two important facets: the separation of personnel running the three arms of government and the manner of arranging the three arms so as to act as mutual checks on each other. The first aspect is not difficult to achieve and has been partially commented on above.
The second aspect of having mutual checks is a very complex operation in constitution draftsmanship. For instance the higher judiciary is accountable to the Legislature for good behaviour. Proposed legislation can be examined by the judiciary for consistency with the Constitution. Executive acts are subject to Writs and FR jurisdiction of courts. However, there is an anomaly in the presidential immunity from legal proceedings. Then, legislative, expenditure and tax measures proposed by the Executive have to be approved by the Legislature.
Devising checks is easy, the real difficulty lies in bringing about that fine balance that would not inhibit effective governance but provide sufficient space for each arm of government to function effectively. Without any pretence to being exhaustive a few pitfalls to be avoided are discussed below.
Pitfalls to be Avoided in Separation of Powers
A useful point of reference is Professor GL Pieris’ critique of the Maldivian Constitution, which incorporates the doctrine of separation of powers (Island, 14 July 2010). The critique is based on the specific Maldivian situation, but two general issues can be raised here.
The Legislature has the power to approve expenditure and taxation proposed by the Executive. Should this be used to frustrate the Executive (as happened in the Maldives) in implementing its fiscal and monetary policies ? Certainly general limits on deficit financing are in order to avoid uncontrolled profligacy, but on specific items of expenditure or revenue the Executive should be persuaded rather than stopped.
Another danger point is the use of an Impeachment Motion against the President or a No-confidence Motion against a minister. There are in our Constitution adequate safeguards to keep an Impeachment on track. With regard to a No-confidence Motion, we can gainfully introduce the additional feature of judicial review to examine whether the minister concerned is guilty of an act involving moral turpitude. Upon such a judicial finding he loses his office ipso facto.
Our primary concern should be to make the Constitution work, not to get it in a gridlock. The cardinal principle on which the Constitution should be based is the principle of popular sovereignty. It is the People that is sovereign. The arms of government are derivatives that derive their power from the sovereign People. Hence, these derivatives should enjoy equal authority. Checks and balances should not be incorporated in such a manner as to place one derivative in a superior status in relation to the others. To take an illustrative example, why should the President have the power to dissolve the Legislature? Both derive their authority independently from the sovereign People. If so, why should one wield arbitrary power over the other’s tenure?
The precise details of checks and balances will have to be worked out with extreme care, the Maldivian experiment serving as a useful reference. However, the cardinal principle that the three arms of government enjoy equal status and are supreme only in respect of functions assigned to each should serve as the guiding light.
In all this discussion on the relationship between the Executive and Legislature there is something that is fundamental that is missing. That is the role of the political party in the polity. To borrow an expression from Susil Sirivardana it may be called the “absent fundamental” The political party and its pervading influence on the polity has to be factored into the discussion on the separation of powers. This will be attempted in the next part of this essay.
(Part II will appear tomorrow)