18 November, 2018

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The Hybrid Features Of The Present Constitution Must Be Removed

By R.M.B Senanayake – 

R.M.B. Senanayake

R.M.B. Senanayake

The most important feature of the Executive Presidential form of government which distinguishes it from the Westminster form is that the Executive is separated from the Legislature and the Judiciary and the separation of powers is followed down the line. It is not only the Executive President who is separated from the Legislature. It includes all his Ministers as well. The Executive President appoints his Ministers from outside the Legislature – the Parliament. This is seen in the U.S Presidency. In France which also follows the Executive Presidency Ministers can be appointed from Parliament but they cease to be voting members in Parliament although they could sit in Parliament. President J.R J with all his political maturity and experience failed to appreciate the need for a strict separation of powers to safeguard freedom. He adopted the practice of appointing only Members of Parliament as his Ministers and they continued to exercise their votes in Parliament. This gave the opportunity to MR to buy over all the MPs in Parliament by appointing them as Ministers ignoring the administrative rationale for the appointment of Ministers.

President J.R J crated a hybrid form of government unknown to political science in a liberal democracy. He thus dropped the principle of separation of powers and failed to adopt the principle of drawing Ministers from outside Parliament which gave the President the choice of appointing competent Ministers with administrative experience and modern knowledge. These are the indispensable features and advantages of the Executive Presidency.

Mervyn SilvaWhy is it necessary to have competent Ministers and can we obtain them by confining the selection to MPs? Because modern government is complex. This point was explained by President Wilson to justify the scrapping of the spoils system in USA where officials were appointed on political patronage. It was abolished in 1883. Persons who are appointed as Ministers should have a knowledge of modern economics science and even modern technology. They must also have experience in managing a large enterprise. Do our elected MPs have such knowledge and management experience? Most of them lack modern knowledge since in 1956 the country sought a revival of our ‘glorified’ traditional past. English as a medium of instruction was done away with. Language is not only a mode of communication and learning but also transmits social moral and cultural values. So we lost the understanding of liberal values and ignored their historical development through the 1688 Glorious Revolution in England and the 1789 French Revolution. We have failed to instruct the youth in these values and instead a half baked Marxist doctrine is imparted. So the JVP still believes in Marxism despite its failure and abandonment in Russia and China which have opted for free market economies or Capitalism. Our politicians are from rural backgrounds ignorant of modern knowledge. Are such MPs suitable for appointment as Ministers in a modern State?

Ministers are required to oversee departments and to ensure co-ordination of allied functions. The Machinery of Government Committee of 1918 called the Haldane Committee discussed various options for the grouping of departments to form Ministries. President MR has made a mockery of the role of Ministers, appointing any and everybody irrespective of the needs for rationalizing public administration. He has been careful to retain the Finance Ministry which controls the disbursement of money and other key Ministries for himself and he members of his family. The others enjoy perks and privileges but have no power. This seems to be the main reason for the displeasure of those who left the Government and formed the Common Opposition. As Maslow pointed out there is a hierarchy of needs and once the basic needs are satisfied people want self actualization which involves power and recognition.

Let us consider the nature of the electorate. We have to go back to Athenian democracy and he debates on the nature of the State and the people. Plato one of the cleverest men who ever lived, thought the State should be ruled by a philosopher king. He compared the State to a ship “[A] true pilot must of necessity pay attention to the seasons, the heavens, the stars, the winds, and everything proper to the craft if he is really to rule a ship” (The Republic, 6.488d). He thought only a philosopher could do so. But Karl Popper blamed the concept for 20th century totalitarianism of Hitler and Stalin.

But the problem is how do we get such a philosopher king? Who can be entrusted to make the selection? The ordinary people whether in the Athens of his day or in our country, are not competent to do so. In fact when people are asked to select their representatives they elect people like themselves- ignorant and with the same dispositions like themselves, who fraternize with them, kiss their babies and have similar social backgrounds to themselves. Can these people be called wise? In our country people used to believe that there was a rabbit on the moon. Village folk tales refer to the ‘gamarala’ who wanted to go to heaven by clutching to an elephants tail. They have never learnt to use their reason and instead depend on superstition and astrology. They don’t believe that then can order their lives since they believe in karma. Can such people choose their representatives wisely? But Pericles said although the people cannot choose their rulers wisely they could judge them subsequently because they would be bearing the costs and benefits of their rule. So evolved the concept that the people are good judges of their rulers although they cannot choose them wisely. Even here the people may not always be wise for they discount the future benefits which may accrue from present hardship. Economic development requires sacrifice or the foregoing of current consumption for investment which will produce a larger cake in the long run. It is the path to development. So making allowance for foregoing current consumption for future economic growth may be disregarded by the people when judging their rulers. This has happened to the UNP which introduced a sound program for economic development. The lesson to learn is that the people cannot be expected to choose their rulers wisely.

The role of Parliament under the presidential system is mainly that of holding the Executive including the Ministers to account. The present Parliament is unable to do so satisfactorily The COPE and COPA reports are ignored. No one is punished for the financial misdemeanors. What then is the point of having these Committees? Several years ago Hon Wjedasa Rajapakse presiding over the COPE issued a detailed report on the frauds and irregularities committed in the State Corporations. But no action whatsoever has been taken against those responsible nor has remedial action been taken. A new Public Finance Act was suggested by a UN organization several years ago. But it was never taken up and passed by the Government. The lack of it allows those responsible for financial irregularities to do so with impunity. Also needed is a new audit Act to safeguard the Auditor General’s independence from the Executive branch of the State. The Parliamentary Powers and Privileges Act also need to be amended to allow for greater public access to the hearings of COPE and COPA. Their hearings should be published in the media. The U. S Constitution provides Congress with the power to impeach any public officer elected or appointed on tenure. A similar provision is required to haul Ministers and Secretaries before Parliament and impeach those found guilty of financial malpractice. It is the lack of financial accountability of the Executive to Parliament that has led to the President treating public funds as his personal funds. This must be stopped and abolishing the Executive Presidency alone is not enough to do so. The President or the Prime Minister must be accountable to Parliament. Hiding under Cabinet responsibility will not do. The Cabinet is a collective deliberative body to decide on new policies and not an executive body to cover up for financial malpractices and fraud. The Minister responsible should be accountable and he should not be permitted to take cover under Cabinet decisions to evade responsibility.

It is also necessary to punish those guilty of fraud and financial irregularities. Unlike in the West we think such action is vindictive. Nonsense. Those who commit crimes including financial crimes should be punished whichever the government in office. There is no prescriptive period for the investigation and punishment of crimes and however long ago the criminal offence was committed there should be punishment meted out to the culprits. Unless we do we cannot hope to eliminate fraud and corruption in the actions of the Executive branch of the State. In the proposed reform of the Executive Presidency our leaders should not throw the baby out with the bathwater. It is better to have a reformed Executive Presidency rather than the Westminster system where governments were frequently brought down by the whims and fancies of politicians, and not often with any noble motives.

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Latest comments

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    One of the excellent piece of writing on the executive presidential system and the practice in Sri Lanka. We need people like Mr RMB Senanayake to educate the moderate thinking people of Sri Lanka – especially in the south and the hills.
    Nanthan

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    Dear Mr.Sananayake,

    Thanks for this presentation. You have made a good case for a professionally qualified cabinet, separated from the legislature , but answerable to it. I hope we will set about making a lasting constitution also in a very professional and wise manner. Constitution making should be left to the ‘ Philosophers’ yet left in this country and its drafting to the lawyers. The elected politicians should be permitted to only debate it and approve it. Their concerns should be referred to the Constitutional Commision only for consideration. The qualified public and civic associations should be widely consulted during the process. The Constitutional Commission should be the final arbiter on what the new constitution should be.

    Dr. Rajasingham Narendran

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    RMBS,

    You talk of Plato and his promotion of a ‘Philosopher King’ to guide the ship of government. The two ‘Philosopher Kings’ for Sri Lanka that immidiately arose in my mind are, a) Kekille Rajjuruwo and b)Mahadanamutta.

    This is Sri Lanka that we are talking about – a country of profound modayas.

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    Nothing wrong with the ‘glorified’ traditional past, but it should tally with the last 1, 000 years. Sinhala-Buddhist majority can’t simply hanker after living Mahavamsa times as it is too far gone in history with much mixing and interaction with other races, cultures and concepts. Without overdeveloping the county along foreign lines, modern government can look at traditional past as the blueprint that progenitured an ever changing variety of Lankans, and then deal with the United Lankan concept for a modern and sophisticated nation.

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    I hope, JHU is kept out of drafting of the Constitution…

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    As Popper saw it, the question in politics has too often been, Who shall we make our ruler? The real task is to use all our cunning to devise methods and structures that will prevent misrule by whoever inveigles herself or himself into positions of power.

    Let us all keep hoping with RMBS…. but the possibility of establishing and vigilantly implementing such methods and structures seems however very fanciful in a society where no depth seems too low to which intellectuals, opinion leaders and public “servants” are willing to sink at the bidding of a king.
    Any king for that matter, as the briefest look at the history of these men makes plain.

    Plato’s Philosopher-King is a dangerous dream that Popper rightly denounced. Let us never look for one for we are certain to end up with a pretender.

    When we turn away from the obvious realities around us to indulge in theorising, we must never stop reminding ourselves of what Acton pointed out: Power corrupts, absolute power etc…..

  • 0
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    Very good presentation, apt and timely.
    “President MR has made a mockery of the role of Ministers, appointing any and everybody irrespective of the needs for rationalizing public administration”. The disgraceful picture of Mervyn Silva, who has always acted with impunity, prostate before Rajapaksa is very appropriate to this observation. The question is why Mervyn has been able to blackmail Rajapaksa to this extent. Bensen

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