Executive Presidency, Constitution, "Supremacy" of Parliament and Separation of Powers
by Dr. A.C. Visvalingam-August 19, 2017, 6:22 pm
The Citizens’ Movement for Good Governance (CIMOGG) has always been against the concept of having an Executive Presidency because the concentration of state power in a single person is a sure formula for destroying good governance. An Executive President is invariably a politician with partisan views and would place his own and his party’s interests before those of the country. The deeds of J.R.Jayewardene, Ranasinghe Premadasa, Chandrika Kumaratunge, Mahinda Rajapaksa and Maithripala Sirisena provide ample evidence to support this assertion.
It is no secret that two of these Presidents appointed certain persons to high judicial positions despite well-publicized evidence of behaviour that would have been totally unacceptable at any level in the judiciary in the early years of Sri Lanka’s independence. The damage done to Sri Lanka by these appointments is incalculable. The disgraceful packing of the Courts with compliant judges would have been much less likely if there had been a sufficient separation of powers between the executive and the judiciary, allowing the latter to develop its own rules for the appointment, promotion, transfer and dismissal of judicial officers without being dictated to by the executive.
Politically-motivated interference with the judiciary is only one of the grounds why, from the mid-1990s, there has been increasing pressure from the public for a new Constitution to replace the current one. There is no doubt that a new Constitution is desperately needed and that, inter alia, it must have the elimination of the Executive Presidency as one of its mandatory objectives, together with a clearer and stronger separation of powers than we now have.
We must be alert to the danger that, during the exercise of forging multiple compromises in writing a Constitution from among the conflicting demands of all stakeholders, we could find ourselves being unwittingly dropped from the frying pan into the fire. Most specifically, there is the ever-present danger that the Constitution would create a Prime Minister endowed with all the powers of an Executive President minus only "presidential immunity". We must not let this happen or we shall be no better off than we are at present.
A glaring instance of the immense power of an (executive) Prime Minister was that of Tony Blair of the UK, who badgered the members of his cabinet to support a declaration of war against Iraq based on a fabricated story about that country possessing "weapons of mass destruction". The colossal suffering and damage caused to the people and economy of Iraq, the Middle East, Libya and many other countries by this crime cannot be quantified. The lesson for us here is that the dominance of the Prime Minister’s office must be limited.
The foolhardiness of having a too-powerful Prime Minister would be compounded if we were also to allow Parliament to be anointed with the "supreme" label. J.R.Jayewardene implicitly fashioned this concept through the wording of Article 4 of the 1978 Constitution. Anura Bandaranaike, when he was Speaker, went one step further and declared explicitly that Parliament was "supreme" and, in particular, was not obliged to respect the views or decisions of the Courts.
Whereas Article 4 of the Constitution made the judiciary totally subservient to Parliament, Articles 30-41, in their turn, gave the President almost unlimited powers. How shamefully Presidents and Parliament have exercised judicial power can be gauged from just two incidents, namely, (a) the cruel manner in which a newspaper editor was forced to grovel before the House because an inadvertent switch of captions of two unrelated photographs, and (b) the thoroughly demeaning and crude language, and unjust procedures, that were employed during the "trial" of Chief Justice Shirani Bandaranayake, who had declared correctly that a proposed piece of legislation was not constitutionally acceptable.
It is nauseating to recall that many of those who had signed the impeachment motion against Ranasinghe Premadasa later claimed that they had not read what they had signed! In the case of the 18th Amendment, the text of it was not seen by most MPs until just before they were dragooned into voting for it. Most of the 117 MPs who signed the impeachment motion against Shirani Bandaranayake were not given the opportunity or time to examine critically what they were being asked to sign and its implications. These three cases demonstrate how little the MPs concerned would have reflected upon their obligations in respect of the doctrine of public trust. With MPs of this calibre comprising the majority in Parliament, should the people consent to this body being classified as "supreme"? Assuredly not.
CIMOGG stresses that the people are supreme. Article 3 of the Constitution asseverates that sovereignty is in the People and is inalienable. Sovereignty includes fundamental rights, the franchise and the powers of government. The people never surrender their sovereignty to anyone or anybody but, from time to time, for practical reasons, they delegate the exercise of their powers of government to the legislature, the executive and the judiciary whilst retaining their fundamental rights and the franchise. Parliament, being a subordinate body to which the people delegate some of their powers for a fixed period of time, cannot logically, morally or lawfully claim "supremacy" over the very people who have granted it such powers.
The standard picture of a pyramid with Parliament at the apex and the people at the bottom, with the Grama Niladhari Divisions, Pradeshiya Sabhas, District Council and Provincial Councils in between, is an affront to the sovereignty of the people. If the pyramid analogy is to be used at all, it should be inverted so that the people are located at the broad top face and power flows down to the point at the bottom, where Parliament may be considered to be situated. Indeed, it would be far more sensible to regard all these institutions as being located in concentric circles at one level with the people at the periphery, the Grama Niladhari Divisions in the next inner circle, and so on, to Parliament at the centre.
The Constitution has given Parliament, which should be concerned largely with legislative matters, unlimited authority over the executive and the judiciary. Those who have been brought up to think of the UK’s unwritten Constitution and established conventions as being the "gold standard" that is being followed in Sri Lanka fail to appreciate the fact that the historical processes that Sri Lanka has experienced over the past two millennia are unlike those which apply to the UK and that this "gold standard" cannot be adopted blindly. By virtue of conventions built up over hundreds of years in the UK, the executive and the judiciary cannot be bulldozed by their Parliament. There are numerous independent mechanisms in all three arms of government to ensure that the government acts with the benefit of the informed advice of highly professional technocratic and other specialists. Transparency and full accountability are the features that ensure that there is little room for corruption or gross inefficiency.
Our constitution-writers have given Ministers both legislative and executive powers but without the strong financial and other controls that members of the UK public service and the judiciary exercise strictly. In contrast, our public servants have been stripped of all independent authority and have to function at the unfettered will and pleasure of our Presidents and Ministers. Another important differentiating factor is that UK voters are far more issue-oriented and less personality-oriented than their Sri Lankan counterparts. Hence, the separation of powers cannot be left at the mercy of long-established UK conventions but must be spelled out unambiguously.
The four "subjects" mentioned in the title above are critically important and should be dealt with circumspectly and comprehensively in a new Constitution. To these must be added the burning need to include features that would help forge a truly Sri Lankan identity, without emphasizing differences of race, caste, religion, class, gender, colour, occupation and other divisive classifications. It would also be salutary for MPs to be reminded firmly and constantly by the public that the people will continue to exist whether there is a Parliament or not; but Parliament cannot exist without the people.
(The writer is the president of CIMOGG – Citizans’ Movement for Good Governance)
www.cimogg-srilanka.org
acvisva@gmail.com
