13 November, 2018

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Legislators Must Legislate & Shed Executive Pretensions

By Malinda Seneviratne

Malinda Seneviratne

There was a time when ‘separation of powers’ was intensely discussed.  It was over a question of territoriality, in particular the transgressions. The focus was the Chief Justice and the debate was about executive overreach and legislative complicity. Examples of judicial transgressions were also thrown around at the time, i.e. cases when a Chief Justice played ‘executive’. Unfortunately, dispassionate intellectualism was evidenced more in its absence; personality, error, ego and expedience took center stage with the various players strutting around as public-interest litigators egged on by cheering squads who had their own agenda. 

In that particular drama the legislative branch, for all the noise therein, was reduced to ‘pawn’. Part of the reason was of course the overarching character of the executive presidency, courtesy the 1978 constitution. The 19th has done very little to ‘curb the enthusiasm’ so to speak of the executive presidency.  Even today the individual who can obtain the most amount of change with the least effort is in fact the president of the country. That said, it is not the case that the law-makers have not arrogated to themselves executive functions.  That is a ‘transgression’ that is not talked of often.  

Tilak Dissanayake and Hilmy Sally who describe themselves as ‘design engineers and concerned citizens’ recently observed that legislators see themselves as executives and not as law-makers.  They weren’t talking about ministers, but ordinary MPs and disturbingly even Provincial Councillors and members of local government authorities.  

One of the reasons for this misperception about role and function is of course the bloated cabinets became the norm ever since Ranasinghe Premadasa used portfolios as a mechanism to deal with dissent following the ill-fated impeachment led by Lalith Athulathmudali, Gamini Dissanayek and G.M. Premachandra (all assassinated subsequently). That’s how he sorted out parliamentary arithmetic in his favor.  

Later, Sarath N Silva’s horrendous ‘crossover ruling’ allowed the executive president to orchestrate crossovers; giving the particular line-crosser a cabinet portfolio was insurance enough against eviction moves by the party he/she contested from through membership cancellation.  In short there were so many ministers and deputy ministers that Parliament was executive-heavy to the point that the legislative functions were neglected.  Parliaments or rather the parliamentary group of the ruling party/coalition merely rubber-stamped laws and amendments crafted by party leaders to safeguard their interests.   Of the 19 amendments to the 1978 constitution, only one (17th) did not have the party-color painted on it.  It was done in a hurry and under extraordinary circumstances.; too quick for MPs to realize they were acting against their own interest!  The 19th was watered down and this too tells a story.  

The point is that representatives think ‘executive’ and act ‘executive’.  Worse, the public seem to expect representatives to execute!  The was budgetary decentralization evolved has not helped.  What began in 1974 as a ‘District Decentralized Budget’ where allocated funds were used under the direction of a district political authority, is now a Rs 15 million gift to each parliamentarian to be used for the most part at his/her discretion.  The truth is that honesty, competence and cognizance of overall national development thinking are largely absent in the decisions made by MPs with respect to the use of decentralized funds.  Even if this was not the case the fact remains that the authority to do so confers upon them an executive role.  Small wonder that each MP thinks he/she is a mini executive president, a yuvaraja or a regional lord!  

There are MPs of the ruling coalition who claim in private that they cannot go to their respective electorates because they haven’t been able to do anything for their voters.  They are not talking about decentralized funds and what can be done with them, but about helping voters in other ways: transfers, jobs and such.   The fault then lies as much with the people as with the MPs.  The people, in other words, expect their representatives to be executives and not law-makers.

Today, when there are elections, the candidates have ministerial aspirations first and foremost.  They are less interested in legislative functions.  

Here’s something that happened 23 years ago that illustrates the point.  In August 1994 when the People’s Alliance won the most number of seats and Chandrika Kumaratunga cobbled together a coalition that had a majority of one so a government could be formed, one man was peeved.  Jeyaraj Fernandopulle.  He got his supporters to protest.  They were livid that their political boss had been sidelined when the cabinet was formed.  

Whether Jeyaraj had worked harder for the party than someone else should have been immaterial when decisions on portfolios were made.  Whether his district or ethnicity or religious community was ‘under-represented’ is a non-issue because forming a cabinet is less about that kind of cabinet representation but getting the right people in the right executive slot. If every social group (caste, class, age, gender, region, party included in the coalition, religion, profession etc) is to be represented then the entire parliament excluding the Speaker would have to be given a cabinet portfolio or at least a Deputy Minister post and there would still be people who would feel ‘disenfranchised’!  

It is time to make arrangements to turn the Parliament and Parliamentarians into what they were meant to be, the supreme legislative body of the country made of people’s representatives dedicated to making laws.  The role-confusion by willy-nilly gifting executive roles to secure parochial and short-term political objectives should be unravelled and sorted out because what’s done for purposes of political expedience quickly gets inscribed as cardinal elements of the political culture.  

One way to do this is to legislate the limits of ‘executive encroachment’ if you will; simply by writing into the constitution the ministerial subjects (Switzerland has 7, the USA has just 15, just to give perspective!).  Further, if national development is streamlined using the regional bodies (PCs and local government authorities) then the decentralized budgetary allocations should be channeled to such authorities and not individual MPs.  “Why replicate?”, is the simple question that will not have a reasonable answer and will therefore compel a more sensible approach to disbursement of funds.   

We began with the issue of power-separation.  Let’s end with it.  Let the boundaries be clear.  Let there be less confusion because blurring is an invitation for anarchy, with or without blood-letting, which in the final instance results in the people being cheated and politicians getting rich. 

Malinda Seneviratne is a freelance writer. Email: malindasenevi@gmail.com. Blog: malindawords.blogspot.com. Twitter: malindasene

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Latest comments

  • 4
    0

    The rot started with the first republican constitution, later exacerbated by the disgusting Jayawardene constitution. Since then, there has been a consistent and continuous erosion of the balance of power. Today, politicians who cannot tell their ass from their elbow see them selves as executives. That is the main problem. Whatever the new constitution is, it must restore a proper and desirable balance of power between the legislative, the executive and the judiciary. If not, the country will continue to deteriorate.

    • 4
      1

      It’s a fine piece indeed!

      But all what Milinda has done is used his “western-training” to analyse the “eastern” Lankan condition, little realising that the Lankan-man does not think the way the “western-man” thinks. There is a great disconnect between the Lankan “western-thinkers” and the average Lankans. It’s not that one is better than the other but the two are so different – It’s chalk and cheese. This difference – which shouldn’t be the case – is so apparent even in the hard sciences such as Medicine, Engineering ……….. the people who come from the “western-tradition” Colombo schools and the Central Schools of the provinces. Make no mistake there are very fine doctors, engineers, scientists ………. that have had their early schooling in Central Schools but the thinking is different. Not that one is better than the other but just different.
      ……………………………………

      So the question is how do we impose a western system of governance on an “indigenous-thinking” population?
      In the West, western systems of governance have had a long natural social evolutionary process to arrive at the present state – the countries we are forced to emulate because of our past colonial subjugation.
      The task at hand for the Lankan social-scientists is to find a way/method to short-circuit/circumvent the long social evolutionary process and get the people to the 21st century in their thinking. The thinking doesn’t have to be western; it can still be indigenous Lankan thinking but modern 21st century.
      ………………………..

      If not, all fine Lankan journalism will end up as …………….. Frank Zappa’s quip …………… ” Most journalism is people who can’t write, interviewing people who can’t talk, for people who can’t read.”

      • 0
        0

        This piece by Nimal Fernando really nails the issue on its head.

      • 0
        0

        Nimal F,
        “The task at hand for the Lankan social-scientists is to find a way/method to short-circuit/circumvent the long social evolutionary process and get the people to the 21st century in their thinking.”
        Yes, but many of our social scientists (at least the ones who use Sinhala) are themselves stuck in our “glorious 2000-year civilization”. Few are willing to admit that it ceased being glorious about 1400 years ago.
        We need to break free and invent a new paradigm, as other Asians have done, like China, Korea, Japan, India, Thailand. The Chinese for example preserve their core culture but have no objections to Western dress and music.
        Our present culture does not encourage innovation or questioning of “traditions”. Instead we get more and more mired in the past while the 21st century sweeps around us.

  • 0
    0

    You fail to live up to my expectation of Malinda. The topic you had chosen is the topic of the hour. However, you kill its vitality by the insipid way you present it.
    *
    When we go to the polls we convince ourselves that our choices would turn out to be excellent legislators. But, we end up totally dejected on many fronts.

    • 1
      0

      Thappu,

      Malinda has raised the issue. Someone has to. It is now left to all right thinkers to make it gather steam. If it doesn’t, then Sri Lanka does not deserve what Malinda is talking about.

      It is all about Sri Lankans growing up….

      • 0
        0

        J&F, In my comment I have clearly stated that Malinda has taken up quite a pertinent topic.
        My disappointment was that Malinda, although capable of a more articulate presentation, had delivered a listless piece. His baby is still-born! The day we all said good bye to English is the day we stopped growing. I understand from where nimal is coming. I understand from where you are coming. But I do not concur with either of you. That discussion is for another day.

  • 2
    0

    An excellent and well-thought out piece by Malinda. I think Malinda is a cut above Dr. DJ in that he cannot and will not stick to stereotypical writing driven by personal ambitions.
    “One way to do this is to legislate the limits of ‘executive encroachment’ if you will; simply by writing into the constitution the ministerial subjects (Switzerland has 7, the USA has just 15, just to give perspective!)”
    But then, this is like asking the self-same legislators to sign their suicide notes. Do you think this has any more chance of being passed than an anti-crossover bill?

    “The fault then lies as much with the people as with the MPs. The people, in other words, expect their representatives to be executives and not law-makers.”
    Yes, this is exactly the source of the problem. We have an allegedly literate population who nevertheless can be depended on to vote bovinely for the candidate who offers the most goodies. Free, of course. We want free education, free universities, free healthcare, cheap transport, non-contributory pensions, but nobody wants to know how these are paid for. Except for a vague idea that taxes on the “rich ” will do it.
    The day that the electors decide to vote for a candidate who promises a balanced budget will be the day this country turns around.

    • 1
      0

      Old codger:
      Have to disagree when you say, “An excellent and well-thought out piece by Malinda. I think Malinda is a cut above Dr. DJ in that he cannot and will not stick to stereotypical writing driven by personal ambitions.”
      Unfortunately, this monumental Rajapaksa sycophant’s track record provides an example of anything but objectivity. Only self-interest and hypocrisy personified.

      The only thing worse than the “hurrah boys” of the last regime are those that pretend to some b.s. objectivity. Malinda is, on his track record, one of them. The only difference is the quality of his English grammar and syntax.

      • 0
        0

        MS has always been like that.
        He is so made as he cant see it beyond.
        It is pitty to see a man who got education at Harward too to have been mainpulated by a Mafia King.
        These men are the curse for this country.
        They are not unbiased even when it goes for highly alarming issues.
        His not being able to call a spade a spade makes me so sick each time reading his so called novel like expressions about lanken politics.

      • 0
        0

        EVP,
        I agree Malinda had a hand in bringing M.R. to power. But unlike the obnoxiously self-serving Dr. DJ with his one- track formula of praising MR and throwing in a few quotes from obscure Marxist theoreticians, Malinda does not stick to hackneyed themes making his writing more interesting. Nobody is perfect. Some are less perfect than others. So let’s pat him on the head when he gives us a chance!

  • 1
    0

    There is another way. That is material benefits of every MP to be identical regardless of back-bench or front-bench, Minister or opposition coupled with strict prohibition of interfering in the “job market”.
    Soma

  • 0
    0

    Malinda: You say that MPs are asking I did not get any money to anything to my voters. I think, that is a lie, not from you from the people who make policies. first, the country is an island, are the problems of people the same or similar?. So, why we don’t go back to the KAchcheri system like something instead of giveing Rs 15 million and a Super luxury car permit to each miniter ?. should not we have national policies and not what the minister wants for his area ?

    • 1
      0

      Jimmy,
      You say: “So, why we don’t go back to the KAchcheri system like something instead of giveing Rs 15 million and a Super luxury car permit to each miniter”
      Easier said than done. Once you give privileges, it is almost impossible to take them back. Didn’t you see those fat women on TV protesting about their Samurdhi allowance being removed?

  • 0
    0

    what can you expect from our m. p,s when the PM who calls himself a Theravada Buddhist goes to a kovil , not kataragama in sri lanka but one in Karnataka
    is it because that god is more powerful to fulfill his vow to become president one day
    malinda and nimal are correct but with the present guys it is only a pipe dream
    what a pity.

    • 1
      0

      Ranil wickramsinghe did something very funny. He offered to renovate the Golden net in the Temple of tooth relic, then went to the near by Meera Makkam mosque and prayed. Besides a good buddhist who knows buddhism would never go toa kovil in South India asking help from some unknown god because every powerful god, every so called yakkas kneel in front of budda. So, Ranil is a dumb leader who does not know what he is doing.

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