By 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.
In 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?
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?