By Neville Ladduwahetty Courtesy The Island

The government’s announcement that a new Constitution will be unveiled within the next few months is in keeping with one of the ten key policy commitments in the President’s election manifesto. This announcement has encouraged several prominent constitutional experts to express opinions relating to constitutional reforms, perhaps in the hope of influencing the ongoing constitution making process. However, at the fundamental level, all these opinions for governance boil down to a choice essentially between parliamentary or presidential systems with their favoured variations.

At this fundamental level the choice for We the People” is whether it is in their best interests to grant their sovereign rights to a single body of elected representatives as in Parliamentary systems, or divide them between two separately elected branches of government as in Presidential systems, notwithstanding the fact that the system in Sri Lanka is not strictly Presidential as in the USA, but one that is Semi-Presidential because of the incorporation of Members of Parliament from the Legislature in the Executive branch.

PARLIAMENTARY v. PRESIDENTIAL

In a Parliamentary system, all power in respect of Legislative and Executive powers are exercised by the elected political party or coalition with the majority to form a functioning government. Under such an arrangement, the opportunity to exercise checks and balances by the Legislature over Executive action becomes blurred despite the fact that the Executive with its Cabinet of Ministers is answerable and responsible to Parliament. Furthermore, while the responsibility for formulating Policy relating to a particular subject is supposed to be that of the Minister and administering that Policy is supposed to be the responsibility of the Administrator, the distinctions between them become seamless because administrative decisions involve policy. This blurring of responsibilities gives the Minister the opportunity to involve himself in the Administration causing administrative action to be influenced by politics.

Addressing this issue that is inherent with Cabinet systems, Sir. Ivor Jennings in his book titled THE CONSTITUTION OF CEYLON” (1949) states: The Cabinet system implies a division between policy and administration. Administration is the function of paid officials; policy is the function of responsible Ministers. The line between them is often fine, because many administrative decisions involve policy. It is the duty of the official to put before the Minister every decision about which there may be any doubt in terms of policy; but it is equally the duty of the Minister to abstain from interfering where no question of policy is raised” (p. 87).

Such idyllic arrangements do not exist in real life. This is particularly so, as presently in Sri Lanka when Secretaries to Ministries responsible for Administration are appointed by the President with no reference to the Minister. Therefore, whatever the system, since the performance of Ministries and ultimately the Government depends on the symbiotic relationship between the Minister and the Secretary, it is imperative that the Secretary should be appointed by the appointing authority in consultation with the Minister so that they could work as a team to further the agenda of the Government. Problems associated with this relationship have been the primary cause for poor Executive performance

On the other hand, in a presidential system, Legislative and Executive power of the people are exercised by two separately elected bodies. Thus, for all intents and purposes, there is separation of power between these two branches of government. While this is so in countries such as the USA, where the two branches function and operate separately, it is not so in the Sri Lankan context of the presidential arrangement because the Prime Minister and the Cabinet of Ministers that form an integral component of the President’s Executive are from Parliament.

Such arrangements are referred to as Semi-Presidential. Under such systems too, the blurring of Policy and Administration that exist under Parliamentary arrangements with Cabinet systems continue. Therefore, there is an urgent need to revisit existing arrangements to ensure that arrangements are instituted for the development of Policy and its Administration in a manner that enables the President and the Executive to fulfill their commitments to the People.

REVISITING CURRENT ARRANGEMENTS

As long as the Cabinet system exists as part of the Executive, the difference between the Parliamentary systems that had existed in Sri Lanka e.g., 1972 Constitution, and what exists currently under a Semi-Presidential system, is marginal. For instance, under the 1972 Parliamentary system a nominated President appointed the members of the Cabinet of Ministers presumably on the advice of the Prime Minister. Similarly, the elected President under the current Semi-Presidential system appoints the Cabinet of Ministers on the advice of the Prime Minister. As before, the Cabinet of Ministers is charged with the direction and control of the Government of the Republic. However, since the People expect the President they elect to exercise their executive power including the defence of Sri Lanka, it is the President as the Head of the Cabinet of Ministers who should be selecting his chosen Ministers of the Cabinet. Furthermore, since it is the President who made certain commitments to the People in his Manifesto, the direction and control of the Government should reflect what he undertook to deliver to the People. The Cabinet of Ministers thus become the President’s team to fulfill his commitments to the People. This perspective should be reflected in the revisited arrangements

The direction and control of the government thus becomes the collective responsibility of the President and his chosen Cabinet. The responsibility of each Minister should then be to develop the Policies relating to the subjects assigned to him as part of the collective responsibility of the Executive. In the development of Policies relating to the assigned subjects, the Minister should be free to engage with anyone who in his opinion could contribute to the process. A draft Policy Paper that would be the outcome of such an exercise should be submitted to the Cabinet for review, comment and approval.

This should be followed by the Secretary to the Ministry as the Chair to determine how to administer the Cabinet approved draft of the Policy. The total package of Policies and Administrative measures should then be submitted to the Cabinet for review and comment so that any amendments could be incorporated into the final policy statement, which them becomes a collective decision of the Cabinet. The lack of attention given to the process of administering Policies is often the cause for failed Policies.

For instance, the Policy of the current Government was to use organic fertilizer and to ban imported chemical fertilizer and pesticides. Under the revisited arrangements, the Minister of Agriculture together with a team selected by the Minister would develop the Policies needed to implement the Policy of using organic fertilizer. The policies so determined would then be submitted by the Minister to the Cabinet for review, comment and approval. Having secured preliminary approval of the Policies, a working group headed by the Secretary to the Ministry of Agriculture should develop the Administrative measures needed to implement the Policies. If at this stage, serious challenges are imposed due to non-availability of material and/or resources to administer the Policy, the administrative process should be revised, or the Policy should be revised to suit capacities. Since such a decision would have far reaching political consequences the decision whether to phase out or forge ahead should be taken collectively by the Cabinet.

If the collective decision is to implement the Policy in stages, the Secretary should develop the administrative arrangements to ensure that the Policy is successfully implemented. On the other hand, if the collective decision of the Cabinet is not to phase out implementing the Policy, it is the responsibility of the Secretary to develop strategies needed to implement the Policy. The total package of Policy and the administrative arrangements needed to implement the Policy should then be submitted to the Cabinet for approval.

The approach suggested above is in keeping with the concept of the Cabinet being collectively responsible for the direction and control of the Government. The revisited approach may appear too complicated. However, the reason why good Policies have failed to meet expectations is because of poor planning and lack of due attention to effective administration. The fact remains that if what is proposed is too cumbersome some alternative has to be developed to ensure that collective decisions are reached, as long as the Cabinet systems remain as part and parcel of the Executive.

RESPONSIBILITIES of PARLIAMENT

The primary responsibility of Parliament is to exercise the Legislative power of the People. Equally important is for Parliament to oversee executive action. In this regard, Articles 42 and 43 (1) of the 20th Amendment to the Constitution state: 42. The President shall be responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution and any written law, including the law for the time being relating topublic security.43. (1) There shall be a Cabinet of Ministers charged with the direction and control of the Government of the Republic, which shall be collectively responsible and answerable to Parliament.

Apart from the question of how a President directly elected by the People could be responsible to another organ of Government – the Parliament, also directly elected by the same People, the fact is that the President and the Cabinet of Ministers are collectively responsible to Parliament means that Parliament is Constitutionally entitled to review Executive action. Although the Constitution does not spell out how Parliament is to fulfill this specific responsibility, the Standing Orders of Parliament contain provisions under Sectoral Oversight Committees and Ministerial Consultative Committees that could be modified to serve as a mechanism to oversee Executive action of the President, and the collective and individual actions of the Cabinet and its Ministers. Since the focus of these Committees is to address issues relating to Legislature, they should be revised, expanded and strengthened to oversee Executive action and incorporated in a revisited Constitution.

INDEPENDENT COMMISSIONS

Appointments to Independent Commissions were made by the President on the recommendations of the Constitutional Council under the 19th Amendment and now by the Parliamentary Council under the 20th Amendment. The Constitutional Council consisted of ten members of which seven were from Parliament. The present Parliamentary Council consists of five members and all of them are from Parliament.

The question that arises is how realistic is it to expect Councils made up of either a majority or its entirety from Parliament, to be objective enough in the appointment of Independent Commissions. If the intention is to create an independent and productive Public Service, the arrangements that exist today are a far cry from what were intended, because what Sri Lanka has inexorably and unwittingly ended up is to politicize the Public Service and weaken its motivation for effective administration. The temptation to politicize was in the misguided hope of the political establishment that administering policies with hand-picked officers who would personally be loyal to them would enable them to achieve their objectives. The consequence of this trend was to demoralize the rest to a point of believing that without political patronage there is no future for them in the Public Service. In such a background, complaining about them would not get the political establishment its desired outcomes. Instead, they should realize that it is in their own interest to have an effective Public Service without which their policies would not be implemented. Therefore, it is imperative that the prevailing trend is reversed.

To do so the arrangements instituted to set-up Independent Commissions should be scrapped, and the existing Presidential Council should focus on setting up an effective Public Service Commission vested with executive powers of appointment, promotion, transfer, disciplinary control, dismissal of public officers including addressing of grievances of the public. The fact that the 20th Amendment has deleted The Audit Service Commission and The National Procurement Commissions that had existed in the 19th Amendment, attest to the fact that the functions of these Commissions could be transferred to the Public Service Commission. A further development is that the Police Commission only handles public grievances. The rest of the functions of the Police Department have already been transferred to the Public Service Commission. In keeping with this trend, other Commissions too should be scrapped except for the Human Rights and Judicial Commissions. An effective Public Service Commission means that even the role of the Ombudsman becomes superfluous, because it should be possible for the Commission with expanded executive power to address grievances of the Public more effectively, since grievances of the public are invariably due to dereliction of duties of public servants.

CONCLUSION

The need for a new Constitution is based on the premise that the Constitution in its present form is a fetter to the progress and development of Sri Lanka. How valid is this perception? The material presented above, if viewed objectively, demonstrates that the real impediment to progress and development is the form and manner in which the Constitution operates.

The Constitution in its present form is not a true Presidential system that is based on the separation of power as in the United States. Instead, it is a Semi-Presidential system because of the inclusion of members of Parliament in the Executive Branch as members of the Cabinet. What is proposed herein is to retain the existing structure for practical reasons, but amend the form and manner in which it functions so that predetermined Executive Policies could be effectively administered.

This approach is predicated on the premise that the reason for poor performance is because of the mismatch between Policy and Administration. A match between the two could be initiated by formulating fresh procedures and revisiting existing constitutional provision through amendments, instead of a new Constitution.

Another concern of major importance is the lack of Constitutional provisions to address Executive performance despite the fact that constitutionally the President and the Cabinet are collectively responsible to Parliament. What is recommended is to use existing provisions under Standing Orders relating to Sectoral Oversight Committees and Ministerial Consultative Committees, and adapt them to address Executive action as a constitutional imperative.

Finally, the concept of Independent Commissions whose origins could be traced to the Youth Commission, have not served their intended purpose, primarily because appointments to these Commissions by a Presidential Commission consisting of Members of Parliament have a political bias. What is proposed instead, is to scrap them and transfer all functions that were handled by Individual Departments to a seriously empowered Public Service Commission with sufficient executive powers to address grievances of the Public as well. This means that even the role of Ombudsman becomes superfluous.

The political establishment as a whole is dissatisfied with the public servants and the services they offer. The primary reason for this belief is that without political patronage their future advancement is bleak. If this perception is to change for the sake of an efficient and committed public service, the political establishment has to give up the practice of using hand-picked favourites for key positions at the expense of more senior and experienced members of the service. The independence of a Public Service Commission becomes their shield. The irony is that the success of a Minister’s performance depends on the commitment of the public servant, and if the Minister is to garner the full commitment of the public servant, he cannot afford to treat some as being more equal than others.