25 October, 2020

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A Blueprint For A Balance & Equitable Governance Structure 

By Anura K. T. De Silva –

Anura K. T. De Silva

Currently, Sri Lanka comprises a top-heavy government where the President functions not only above the laws of the country but is not even answerable to anyone including the rule of law, the legislature nor the judiciary. The judiciary is governed by the legislature and the cabinet with executive power sitting in the legislature.  Therefore, for obvious reasons, excessive power and unquestionable authority within the Executive corrupts the entire institution that spreads through the Ministers into the legislature. Therefore, it’s a built-in dysfunctional system of governance which is aggravated when elected representatives are appointed among the political parties that distances the people who elected them. It is in fact a system of governance to rob from the people with immunity. Therefore, it is far from being a just and fair nor consists of democratic institutions for self-governance as we have not only concentrated excessive powers but allowed to fail. The outcome is clearly visible where every President who was elected has failed and failed increasingly by dragging the nation in a downward spiral to a serious decay with no one held accountable for failure and responsible for recovery. But it is probably the most lucrative venture for politicians in either party to gain power in Sri Lanka as it’s like winning a lifetime jackpot to consume the national wealth with immunity.

The idea that a just and fair government must divide power between various branches did not originate in recent times but has deep philosophical and historical roots in Europe. It began with the legislature and the judiciary being answerable to the Monarchy. But as people became more independent and democracy became predominant, ideas about separation of powers became foundational to a well-functioning government. Centuries later, when the exercise of absolute power, especially in a cruel and oppressive way, was accepted as the primary threat to any government, the best way to prevent such excessive power was considered through separation of powers, in which different bodies of government exercised legislative, executive, and judicial power, with all these bodies subject to the rule of law. 

Therefore, the dysfunction in our governance has less to do with the individuals (even though they are still guilty of their frauds, crimes, and corruptions) but more to do with the weaknesses in our institutions, governing processes, and our social culture, where the voters vote with their hearts rather than their minds. Hence, the people end up being easily fooled by appearances, perceptions in the loyalty to the political party, or act blindly based on the promises they make without critically questioning their means of delivery or even ulterior motives. Worst of all, we grant excessive powers, more than willing to blindly follow those we elect at every election and when they destroy the nation, we are willing to ignore, forgive and forget the national crimes.

Therefore, it is time we reform our system of governance, so that we don’t end up producing one corrupt leader after another. In order to reform our systems, it is first and foremost important we identify where our governance has become broken and reprehensible. Some of the core reasons can be identified as follows:

Excessive layers and codependences on overlapping governing structures without independent powers and authority to self-govern

Excessive power to parliamentarians to authorize own expenses and incomes

Excessive aloofness between representatives and the voters 

Excessive reliance on two major political factions

Excessive weakness in democracy in the government branches and the political parties

Excessive nepotism, lack of transparency, and weak enforcement in rule of law

Excessive unaccountability of public representatives for their actions

Excessive powers granted to elected representatives and held above the laws of the country that encourages unlawful actions

Excessive power for a political party gaining majority votes to take it all

Excessive powers infiltrated to independent constitutional council

Undefined roles, responsibilities, and accountabilities in each branch of government

Deficit in legal authorization to check among the three branches of government

Unbalance of power among the branches of government

Supremacy granted to a single religion among a multi-ethnic and multi-religious society

Lacks a single universal law to protect human and citizen rights of every citizen

Excessive poverty has depressed the dignity of a majority of the population resulting in weak and dependent voters 

Excessive powers granted to those elected to govern rather than to the general public

Endless duplication in the ministries usually offered as political rewards 

Allowed to add own privileges without any accountability to the general public

Unaccountable access to public wealth not only by the President/PM/Finance Minister but by all in power, often with the authorization by the leadership

Lack of independence in the judiciary due to the submissiveness to the other branches

As we dig deeper into our systems of governance, we can clearly observe that the most common reason for our national dysfunctions can be summarized as the following two reasons:

Excessive powers granted to the central government and to the elected representatives 

High deficiency in checks and balances among the independent branches of government

Due to these circumstances, changing from President to PM (19th amendment) or reversing it is not going to make any impact when there are excessive powers that corrupt those we elect.  Therefore, the true dysfunctions of our governance are not the post of the Executive Presidency but the unconditional power and unquestionable authority we grant to the Presidency and members of government being exempted from the laws of the country. The unaccountable access to public wealth allowed to be stolen by the mob of politicians with no transparency has developed its own dirty stock market to horse trade representatives weakening even our judiciary and the and civility of citizens. 

Hence, we first need to separate power among those that make policy judgments (the legislative), those that implement and propose new initiatives (the executive), and those that resolve disputes and render interpretations (the judicial) as follows:

Legislative branch to EXCLUSIVELY enact the nation’s laws.

Executive branch to EXCLUSIVELY implement and enforce the laws, policies, and projects enacted by the legislative branch.

Judicial branch to EXCLUSIVELY interpret the laws in reference to the Constitution and apply its interpretations to legal controversies involving the laws.

Secondly, we need to dilute the centralized powers of the three branches in the central government by devolving excessive powers among the nine provinces, specifying that their governments be divided into similarly empowered legislative, executive, and judicial co-equal branches of governance. As a result, we will become a nation of “dual sovereigns”- to the central government and to the provincial government. The central government will be given specific responsibilities to coin money, raise armies, and regulate interprovince and foreign commerce, which should become few and clearly defined powers, while the powers in the provincial governments comparatively should become numerous and indefinite. 

Therefore, government would end up being able to focus on relevant areas of responsibilities with limited power, restricted access to public funds and operate within stronger and reputable democratic institutions of government. Furthermore, devolving power will provide less national wealth for a distant central government to misuse, giving incentives for the provincial governments to protect our liberties by checking on abuses in the central government and for governance to become more relevant to each province when decisions are made in proximity to the local citizens, communities and businesses as they impact more self-determining provincial governments. 

Therefore, devolution of power will provide greater freedoms and flexibilities at local levels, so provincial and local governments can work more effectively to improve public services for their respective areas rather than rely on the priorities in the central government. The outcome will be more effective, better targeted public services, greater growth and stronger partnerships between public, private and community leaders within each local area, highlighting the power of self-determination with more accountability and less cronyism. While diluting the centralized powers with power devolution, our objective should also be to establish smaller governments that performs a limited and well-defined number of roles to which it is suited and has the requisite capacity, rather than trying to manage everything or become an employer for everyone. 

Thirdly, we need to strengthen the democratization of our legislature away from the PM and the leader of the opposition monopolizing the branch of government. The prevailing divisive nature of our parliament that has existed for the past 71 years has not served the people; it has personally served the politicians and their political parties due to the weaken democratic functioning of our legislature. Therefore, legislature needs to be represented mainly by independent representatives from smaller electorates rather than as representatives from majority and minority political party factions. Furthermore, elected representatives need to be confined to legislating (to enact laws), have no access to the treasury, nor be able to hold Ministerial positions. Legislative representatives of the people are elected to legislate and should be restricted from running our government with access to the national wealth. In addition, we need to open up the legislature for the general public to introduce ideas/bills, speak on the bills in the parliament they wish to change, or introduce policies and laws through the legislature. 

The 3rd branch of the government currently under the Ministry of Justice within the legislature should be totally isolated from the legislature and the executive, to stand independently while expanding its role not only to interpret the laws (traditional role) but also to administer the institutions of law and order and the court system (new role).  With devolution of powers to the provinces, the individual police stations will need to function under the purview of the Provincial Judiciaries while the centralized body of the police will overlook and support the provincial policing, establish strong integration among other police stations to share intelligence, and focus on national policing. 

This initiative will also transform the police departments from bureaucracies to more professional departments who will be answerable directly to the local citizens.  It is also important that the administrative arm of the Judiciary be expanded to include an Office of Public Legal Counsel (PLC) within each province to enable access to the general public to receive legal counsel against the government or any organized entity (businesses, religious organizations or the media) and as an avenue to prosecute as class actions. Therefore, the PLC can act as a true Attorney General to represent the interest of the people.

Forth and most importantly, we need to introduce a strong system of checks and balances among the 3 branches as well as the public citizens as it was intended. In that transformation, the greatest challenge will be to transfer and enable the necessary powers to the people not only to elect but guide and recall their representatives than rely on the respective political parties. As checks and balances will not function on its own, we will need to introduce the balance in power for self-control, contrary to the excessive and unquestionable powers we currently have granted to those we elect while eradicating the powers of the people once they are elected.  

As diluting and separating power alone will not be sufficient, we will need to introduce necessary processes in our governance to build a system of checks and balances designed to guard against tyranny that no single branch would grab too much power when assigning the responsibility to function as the oversight of the other branches of government. 

The system of checks and balances has been tested numerous times throughout the centuries in many nations which helps us avoid loopholes in creating the checking and the balancing of powers. We can go one step further to strengthen our institutions by ensuring the representatives are elected from smaller electorates in proximity to the people and with necessary judicial powers granted for the general public to recall any representative.

As the 5th step in the transformation of our governance, we would need to introduce necessary systems and processes for the media to act independently than as propaganda machines of candidates. Media should seek the truth independently to provide clarity to the people actively participate not only to oppose or as political scrooges but independently understanding and lobbying for changes that will benefit all citizens.

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