1 October, 2020

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Comments On The Draft Constitutional Proposals

By R.M.B Senanayake

R.M.B Senanayake

R.M.B Senanayake

This is another hybrid Constitution mixing up the provisions of an Executive Presidency with the Westminster System These are two clear and separate systems of government and they require different provisions. The difference arises with regard to the Executive arm of the State. In the Executive Presidency the Chief Executive is the President who is directly elected by the people for a definite term. He cannot be changed during his term of office unless he is impeached by the Legislature for misconduct. Our present Constitution lays down the functions and duties of the President in Article 133.

Should the Executive which supervises the Administration be entrusted to one person or to a group of persons? Is the unitary executive preferable to the plural executive? The Westminster system has a plural Executive while the Presidential form has a single executive. It is discussed in The Federalist by Alexander Hamilton who argued strongly that unity in the executive can only be achieved by granting the executive power to one person. In the Westminster system the executive power is with a Cabinet of Ministers but each Minister has control over a defined sphere of activity through a Ministry which is a grouping of allied departments or function and each one is responsible to Parliament and to the electorates or the people for the proper conduct of the affairs of his department or Ministry. Their individual responsibility is supplemented by collective responsibility.

Ranil MaithriIn one line the draft new proposals say that the President is the Head of the Executive and the Commander in Chief of the Armed forces. It is not clear whether he also enjoys all the powers presently conferred on him in Art 133. A new responsibility is cast on him is to “promote national reconciliation and integration, ensure and facilitate the preservation of religious and ethnic harmony and ensure and facilitate the proper functioning of the Constitutional Council and the independent Commissions.” But in the next line it says that the President will always act on the advice of the Prime Minister- a provision common only in the non-Executive Presidency. Who then exercises effective power? What if the President doesn’t agree with the recommendations of the Prime Minister? He can ask the Prime Minister to reconsider and if the Prime Minister doesn’t vary the recommendation then he must accept it. This may be the legal position. But where the President who is the Head of the Executive, feels strongly that he is right he may refuse to compromise and then seek other avenues to vindicate himself. Wont’ this lead to a conflict? We don’t think this division of power is desirable for good administrative leadership upon which the quality of the government and the administration depends. Does he have power to supervise the other Ministers?

Presidential immunity

It does not extend to acts or omissions of the President in his official capacity. The issue is whether the President is subject to judicial actions while in office. The original intention of the Founding Fathers was that the President should be protected from vexatious private cases against him while in office. The only remedy against him was to be impeachment. In the US such constitutional provision was re-interpreted in the case against President Clinton by Monica Lewinsky and the Watergate incident involving President Nixon. The recent cases in USA have modified the position regarding judicial action against the President and should be studied by our Constitutional lawyers drafting the Constitution. Whatever the position in USA we need to allow public interest cases against the Executive President for we hear about the massive scale of corruption said to have been carried out by the former President. So while the new proposals allow legal action against the official acts of the Executive President it must also provide for public interest legislation.

This brings us to the issue of financial management and accountability of the Executive President and the Ministers. The drafters of the new Constitutional proposals should read the Canadian Financial Administration Act of 1985 as amended from time to time. It is very comprehensive and constitutes law whereas our Financial Regulations are only Treasury Rules applicable only to public officers and not the Ministers. There are also Regulations under the Act including Regulations for Advanced Account Activities which are totally unregulated under our present system of financial management. Individual Ministers and not the Secretaries should be responsible for the financial management of the Ministry and the departments under it although he could utilize the services of the Secretary to enforce his responsibility. But he cannot divest himself of his responsibility and accountability. The World Bank prepared a draft Public Finance Act 2002 which was not enacted. It needs to be brought up to date and in addition to the financial management responsibility of the Minister of Finance, individual Ministers should be responsible for the financial management of the Ministry and the Departments and held accountable.

The Constitutional Council ran into problems because the former President refused to make some appointments. This particular problem seems to be resolved in the new proposals. But it is necessary to spell out the principles that these Commissions should follow. The rationale of the Public Service Commission is not to manage the personnel administration of departments which is part of executive management. It is to uphold the principle of merit in appointments and promotions and fairness in the exercise of disciplinary powers in the departments. It should not seek to do anything more but must respect the right of the departmental head to manage the department which was the tradition of the previous PSC. The Police Commission has apparently sought to do just that- micro-manage the personnel administration of the Police Department. It is necessary to spell out the objectives of the independent Commissions. Similar qualification should apply to the National Procurement Commission. Procurement is part of executive decision making and not to be imposed by an outside body. The Commission should ensure the regulations which call for competitive offers and the choice of the best offer.

Council of State

Why such a Council over and above the Prime Minister and the Cabinet? Is it Advisory or does it have teeth? How workable is this arrangement. It is easy to be armchair critics. Criticism must derive from firsthand experience not hearsay?

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Latest comments

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    IF those constitutional reforms are approves Sri lanka become a country filled with anarchy. That kind of constitution may be tolerated in a state like Kerala. For a sovereign country it makes the country disintegrate. President becomes backbone less, powerless weakling. Prime minister and supreme court start controlling the President. If that reforms were to be approved, Country weill disintegrate and it will be Tamil, muslim, christian and catholic republic where sinhala buddhists are governed by all others.

    Present Executive system is far better and superior and protect the country;s sovereignty.

    Only thing needed is a leader who is not a dumb – thief and loves the country.

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      Keep on hoping for such a leader to be produced in Sri Lanka! Height of naivety I would say.

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    RMB,

    I am glad you keep bringing up these issues. However finding a constitition that will work or be respected by the Sri Lankan politicians is not going to be easy. Getting something like this right this time around is also not going to happen. If we can reverse the unbridled powers that MARA gave himself and limit the term of the president for two terms only, however emasculated his powers may be, that itself will be a great achievement by the My3 government.

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    RMB

    Your article is timely and further active discussion is necessary.

    I on my part will make some more suggestions.

    President

    As per the discussion paper, “The President will be the Head of State, the Head of the Executive and the Commander in Chief of the armed forces. The President shall always, except in the case of the appointment of the Prime Minister or as otherwise required by the Constitution, act on the advice of the Prime Minister or of such other Minister as has been authorized by the Prime Minister”

    Bur this is not sufficient.

    A piecemeal and ad hoc changes to the constitution are dangerous.

    The entire Chapter VII on executive presidency should be revised and rewritten so that there will not be any ambiguity.

    Now the Public Finance is covered not by law, but by rules and regulations like Establishment Code and Financial Rules.

    It is advisable that these regulations are backed by law. A Public Finance Act is a necessity.

    Audit Commission

    The need for an audit commission is not clear.

    The COPE and COPA must be backed by law,

    If individual ministers are held responsible for financial management, then professionalism and independence of public sector will be compromised.

    The Management including Financial Management should be the responsibility of the Secretaries and Heads of Departments as Chief Accounting Officers and Accounting Officers, but a way out to be found to ensure accountability by the ministers to prevent waste, misuse,bribary and corruption.

    Accountability is a key element in Good Governance, not to be confused narrowly with accounts.

    Procurement Commission

    The need for a procurement Commission is also not clear.

    The present Procurement Manuals and Procurement Guidelines with the supplements should be incorporated into an Act of Parliament and make them binding on all from President downwards.

    I hope RMB will continue in this endeavor.

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    The writer misses the biggest defect in the proposals as reproduced in CT: The method of election of the President will remain unchanged but it will be a matter for the next parliament.

    First if the president is directly elected he WILL, de facto, be the source of power. He has a direct mandate from the people and will outshine prime minister and cabinet. We WILL NOT have an approximation to a Westminster system but a version of the French system. The drafters seem to be a confused bunch.

    Second the drafters can’t make up their minds about the future. No change; Change by the next parliament! What! Another constitutional amendment circus – 20A – soon coming to cinemas near you!

    It is these aspects that look like donkey work! When I said during the campaign “take a stand against Candidate Sirisena’s irresponsible statements by threatening to withhold support” (though finally we did support him)I was greeted by a chorus of curses. Now the chickens have come home to roost and the need for a strong independent outlook has been vindicated. The ahcharu portions of the proposals must be faulted; those who retained independence and backbone can do so now.

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    I refer to Sri’s comment that making Ministers accountable for financial management will undermine the independence of the Public Service. Two points. Firstly it is the Ministers who unofficially exercise financial powers through improper oral directions. But unlike in Britain they do not consider themselves accountable and have never appeared before the PAC or resigned from their Minister Ships when corruption is exposed in Parliament. So it is better for the Public Service to realize the reality. We have adopted the system prevalent in Britain where the Ministers are held financially accountable by Convention rather than by law.Constitutional Conventions are totally ignored in our country. In fact even Canada, Australia and New Zealand faced similar erosion of Conventions and Canada passed legislation holding the Ministers financially accountable. Australia has introduced a Code of Conduct for Ministers to be enforced by Parliament. So if the present Government wants to combat corruption it must bring in legislation making it retrospective for the Ministers to be financially accountable for any financial irregularities which almost always follow upon the violation of the Financial Regulations.The Opposition should be asked to agree to make such legislation retrospective so that the previous regime can also be held accountable. Anything less than such legislation is unlikely to be effective in bringing to book the corrupt of the past or to prevent corruption in the future. The Government should seek UN assistance under the UN Corruption Convention ( I am not sure if we have signed it)

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    I agree with Kumar David. The problem is that our politicians and even the constitutional lawyers are ignoring the principles on which the two systems of government are based. The Executive Presidency makes for a strong Executive but to hold it accountable it is necessary to allow for the Separation of Powers which President JR deliberately ignored. As Mr David has pointed out if the President is directly elected by the whole country his authority must prevail over a Prime Minister who is elected from a limited constituency. If we want a Westminster system then the President should be appointed by Parliament as the Head of State and not as an Executive President.Perhaps the current political scenario has shaped these constitutional proposals.If so why not say that these proposals are applicable only for the present regime and will terminate at the end of its term when the current Constitutional provisions will be restored

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