By Siri Gamage –
Imbalance of Power between the Executive and the Legislature, Constitutional Dilemmas and the Need for a Community-Oriented Model
For a society to function smoothly, there has to be a commonly agreed framework of governance. This framework defines and specifies the way those who are elected to govern are to be elected, the powers they ought to have, in which circumstances and for what purposes, ability to delegate, responsibilities of various sections such as the executive and legislative branches, and more importantly the limitations. Usually the constitution of a country provides the principal blueprint of such a framework supplemented by various legislation approved by the legislature. When disputes arise about the way a given power is exercised by a given person or a body pertaining to the government, there ought to be judicial and para judicial mechanisms for resolving them. For this function to operate smoothly, the independence of such judicial and para judicial bodies, e.g. Human rights commission, labour tribunal, has to be guaranteed. All this can ensure the functioning of a society where reason, sense of fairness and justice, rule of law, transparency and accountability etc. work as governing principles rather than the application of sheer force of power itself. A society with such characteristics and a framework of governance is one that will install a high degree of confidence among the country’s population, mostly the literate sections, as well as international observers.
However, constitutional and political developments since the late 70s have taken the country as well as the governance framework on a slippery slope culminating in a situation where the rule of law, reason, justice and fair play, as well as transparency and accountability seem to have been thrown into the dustbin of history by large measure. Instead, a governance framework where one individual or his/her office is able to command a very high degree of power and resources as well as manipulate the functioning of the legislature through the party system and coalition politics plus the practice of luring opposition politicians to his/her side with impressive inducements such as ministerial posts seem to have emerged and expanded in its grasp. Thus we can see today the largest cabinet in the world. The neoliberal, free market economic system that was introduced by the UNP government in 1977 has assisted this change in the governance practices. The expansion of this system by all parties, without examining its consequences on society, culture, and the governance framework for so long has ensured various social ills as well as the loss of community rights also, e.g. encroachment of the coastline by privately owned tourism companies and other entities, large scale appropriation of state land by private sector companies by way of joint ventures with foreign entities.
What are the imbalances and weaknesses in the current governance framework that lead to the nurturing, preservation and expansion of a self serving political culture and practice since the introduction of executive presidential system by the UNP government in late 70s?
For a start, the executive president (EP) is not answerable to the legislature where elected and appointed members of parliament reside. He or she is not answerable to the judiciary also. EP is constitutionally held above the country’s law. The argument here is that as people in a separate election for a six-year term elect the EP, people transfer their sovereignty to the EP for that period to govern the country. Thus the executive power reins supreme for that period over any other power. While the legislature and the judiciary have their functions specified in the constitution and legal pundits and MPs may argue about the probity of a given action of the EP at a given time, the stark reality is that under the existing constitution, one person us allowed to accumulate, keep, and exercise so much power and by implication resources with very little accountability. Thus a very high degree of imbalance between the executive and legislative branches has been created by the constitution introduced by JRJ in the late 70s. This has been a significant structural change compared to the previously existing Westminster style parliamentary system where the cabinet and prime minster enjoying the majority in elected parliament governed the country subject to cabinet conventions of collective responsibility. Though the PM enjoyed a high degree of power within the cabinet and the parliament, his or her power was subjected to the collective desire, discussion and decision. There would have been situations where the PM exercised his/her power over the others in the cabinet and the majority in his her party and coalition but such situations must have been the exception rather than the rule.
The governance framework under the EP system provided a complete contrast to this. It more or less took the center of power gravity away from the parliament and the cabinet and concentrated it in one individual. This has been the structural dilemma that the country has faced since such a grave decision was made by the JRJ government. Among many others, Prof. Wishwa Warnapala published a book in the 80s showing the dangers of this change. During the 82 referendum conducted to extend the term of parliament, many academics campaigned with the SLFP against the proposal while pointing out the extraordinary powers entrusted with the office of EP. The change made in the election system to form a proportional representation system away from the previously existing first-pass- the post voting system contributed to the instalment and entrenchment of the current governance framework and political culture. One would say that the introduction of provincial government system also contributed to a system and political culture where previously existing checks and balances on the exercise of power were made ineffective. Checks and balances in the exercise of power are a significant instrument for ensuring accountability, transparency, fair play and justice, as well as proportionality. Independent commissions in areas such as election commission, public service commission are examples of bodies needed to ensure a degree of distance from the active politicians when dealing with maters of importance requiring a degree of independence. The constitutional commission that was proposed in the past for interpreting constitutional issues was another example. Reducing the term of governance to 3 or 4 years as in other countries is another example of the people or electors having necessary oversight on the executive and legislature. It forces the governing parties to come before the electorate on a regular basis to secure fresh mandates from the people. Extending the period of governance to 6 years by JRJ in the late 70s was inimical to the capacity of one individual to concentrate so much power and resources and also to look for ways and means to remain in power in perpetuity as exemplified by the 18th amendment to the constitution.
Thus today we are in a situation where there is a constitutionally and structurally endowed framework of governance where the imbalance of power sharing between the executive, legislative and judicial branches has become severe and harmful to the society and it’s smooth functioning in line with cherished principles, values and norms of governance, particularly with a democratic desire. This imbalance has created all sorts of distortions in the governance framework, processes, and procedures, one of them being the relative loss if autonomy enjoyed by different branches of the government itself as under the Westminster system, e.g. Police, election commission, government bureaucracy. The office of EP has subsumed all these branches with its constitutionally mandated powers exercised with full force.
Thus when the average citizen faces mundane issues to do with everyday life, they are confronted with a governance framework highly skewed in the direction of rulers rather than the ruled. They are faced with a governance framework whose roles at national and provincial levels are occupied by people who are more interested in the perpetuation of their own power, status and legitimacy from the office of EP rather than from the citizen. Citizen has given away his sovereignty for six years for the ruler to govern at his or her whim with minimal or diluted checks and balances. In this system, any justice for wrongdoings should also come from the ruler, not necessarily the judiciary. Likewise, any compliments for obeying the prevailing governance framework and the prescribed life for citizens should also come from the ruler and ruling class. It is this governance framework that has drawn severe criticism from sections of society and political parties recently, as was the case many times in the past few decades. This is not surprising because the framework alienates and disempowers the citizen while empowering and emboldening the political class in perpetuity.
By any measure the system of governance existing in Sri Lanka can only be described as a top-down one. Atuwa –teeka are not necessary to explain why because people have experiences of the system and its imbalances since 1978. Two elections are conducted to elect the President and the parliament. Both claim legitimacy obtained through specific elections. The problem is –given the considerably long period of office of six years for the President and the parliament- there are no sufficient checks and balances in between elections to ensure transparency in decision-making, sufficient consultations with various stakeholders, and interactions between the elected and the electors on an equal footing. Once the electors elect a representative to the parliament or to the office of the President those individuals become all powerful personalities with access to enormous power, privilege and even wealth in time to come. They make decisions –with future implications- on behalf of the population without consulting stakeholder groups, associations, communities, and on the basis of so-called expert opinion or the opinion of so-called advisors. Only when there is a crisis of some sort, politicians and other professionals focus on the issue with a view to consulting people affected. This represents ‘an elitist model of decision-making’ rather than a ‘consultative, community-oriented model’.
What is the outcome of such a model? Electors become disenfranchised and disempowered. A dependency is created where the young, old, men and women, farmers, workers, fishermen, small traders, government employees, and everyone else who are not closely linked to the politicians or the middle-top level bureaucrats in the government have to go after the politicians in order to resolve issues they face in day to day living, education, employment/work and business. If there are independent or semi-independent government bureaucracy/departments where the rule of law applies, people do not need to go after the politicians to resolve their mundane issues. However, when such departments are politicised and the influence of politicians can turn decisions one way or another by-passing the laws or influencing decision makers, people do not have space to obtain justice or just solutions. When provincial level or district level or even sub-district level public decisions are made by elected politicians together with government bureaucrats without appropriate consultations with the people in the area in between elections, the elitist model of decision making continues and the alienation of people from the actual decision making processes increases. This then leads to frustrations, anxieties, anger, and even depression. However, when the elections come, people do not have much choice. They have to vote for the governing parties or the opposition parties. None of these parties propose a more consultative method of governing. They are locked into the prevailing framework, systems and structures. Thus there is a perpetuation of the elitist model of decision-making irrespective of who win the elections.
In this sense, it is disheartening to see that some discussions are being held among political and civic leaders about the abolition of executive Presidency, bringing back the Westminster style parliamentary system of governance, holding provincial elections on the same day and more. Recently, Rev. Athuraliye Rathana spoke about the decline in people’s morals and the soul due to the prevailing political culture, consumerism, and the spread of vices. Sri Lankan literati had known for a long time that the spread of materialism and material development do not bring spiritual emancipation. His speech available via several web sites is an important one to listen to.
But what is needed is a system of governance that allows local communities-whether in the city or village- to make their own decisions about the matters that affect their lives on ground in between elections and reduce the power of elitist politicians at the national level when it comes to decisions affecting local levels. In this sense, for example local governance can be strengthened by allowing more powers and responsibilities for city councils and local government area councils –irrespective of who lives in these areas. A decentralised budget can provide necessary resources. Local Councils can be allowed to raise their own funds by way of Council rates like in other countries. Matters to do with garbage collection, water supply, parks and public utilities in local council areas could be delegated to such councils. Powers of the central government and provincial government in comparison to local councils need to be specified clearly. This involves a degree of sharing power rather than monopolising power by one individual or by the elected representatives at the national level.
Whether a country of the size of Sri Lanka needs three levels of governance –national, provincial, and local- is a question that needs to be addressed also. In my view, we can do without the provincial level government if there is a vibrant local government system that empowers local communities and stakeholders. Considerable waste, overlapping, and even corruption could be prevented thus. An elected body of Councillors should run the local Councils.
Whether the country changes from a Presidential system to a Parliamentary system of governance is an important question to discuss. However, if the existing model of elitist decision-making and the political culture that is built on nepotism, all-inclusive power granted to politicians, and corrupt tendencies are maintained, I do not think a simple change from the Presidential system to a parliamentary system will produce the intended results for a fair system of governance. A bottom up social movement with grassroots support need to be developed to canvass support for a significant change in the existing political culture and practices that disempower the people/electors. A structural change in the system ought to be coupled with such a movement whose leaders could raise awareness of the population about the weaknesses in the existing system and a way forward. It is a giant task that requires goodwill, commitment and dedication of many leaders who have a civic consciousness about the way the country is heading towards a total collapse of its core values in the face of growing globalism, neoliberal economic and social policies, and the exposure of our young people to a plethora of evil habits by the lacklustre attitude of those who are responsible for governing, legislating and administering the law.
The greatest challenge facing the country is not ethnic separatism-as some would like us to believe. Greatest challenge is how we steer the next generations of young people in a direction where they are not compelled to destroy their lives along with the others in a situation of despair or by following not so healthy prescriptions coming from abroad in the name of globalisation. Globalisation, which is the current phase of imperialism, is creating further inequalities among peoples all around the world-even though some have been able to move above poverty in countries like China, India and elsewhere (See Gamage, S. Journal of Developing Societies, Forthcoming). There are powerful arguments to show that the very same globalisation (neoliberal economic development) creates larger gaps between the rich and the poor. Such arguments are important to be examined in the case of Sri Lanka also. The forthcoming national election is no doubt a crucial one in the evolution of Sri Lanka’s governance framework which is skewed toward an elitist political culture and entrenchment of privilege under globalisation, and all shades of opinion may come forward during the short campaign period. However, the result will determine whether it will mark the dawn of a new era with a reformed framework of governance or the continuation of 1978 constitution and its lop-sided power imbalance for another six years!