Background: Separation of Powers
Concept of the three separated branches of the government was tried and tested for over thousands of years. The first most successful implementation of such in recorded history was in the Roman Empire. The key assumption of the distribution of power in such a system is that each branch is inherently power hungry therefore other branches would have to balance the power.
Basic principle is simple. One branch, The Legislator, will define the laws of the land. However they do not have any power to execute laws or operate the government. The executive branch (President) can operate the government but has to adhere to the laws (Legislation) established by the legislator. The Executive don’t have any power to write laws. However the president is given the ability to propose new legislation that would aid the executive to operate the government. Judiciary is the third branch that glues the executive and the legislator. Judiciary ensures that legislator does not make laws that would endanger the balance of power. At the same time it will ensure that the government and the people adhere to the laws of the land.
In addition to this many governments use two house approach to the legislator. This was a recognition that one legislator can easily be manipulated to create legislation that always does not reflect the will of the people.
So what is wrong in Sri Lankan System?
We all agree that the constitution of Sri Lanka is flawed. But what is really wrong with it?
The 78 Constitutions
Its important to understand the context in which the current Sri Lanka constitution was created. This was the first attempt to move away from the traditional Westminster system that has assumed the power of the executive branch under the legislator (as Prime minister act as the executive of the country). The Westminster system works well in the UK as it has an all powerful executive at the top of the pyramid (The Queen). Absolute power the queen of England has over the nation is the one key that keeps the balance of power in that system. In the nations that adopted Westminster system without an absolute monarch has failed miserably achieve any significant economic and social development without moving to a significantly different structure.
When the president J.R. Jayawardene introduced the new constitution he had his mind in the right direction. However he needed to keep some of the executive power that the politicians traditionally enjoyed in the legislation. After-all most of the politicians in JRs parliament ware coming from the Aristocratic runt of the colonial era. They are not ready to let go the hand they had in operation of the government. At the same time the JR had to make sure he maintain the power in the executive and the parliament. He has introduced few features into the constitution that opened room to gradual degradation of the Sri Lankan constitution over the years.
No fundamental requirement to segregate the powers
One key aspect that is missing in the Sri Lankan Constitution is Establishing the key fundamental “Segregation of Power” as a primary directive in formation of Government. This has given the room to transfer the powers between Legislator and the Executive without a referendum. In some rear occasions even the Judiciary has over extended its arms in matters related to Legislation and Executive Branch.
Parliament has too much executive powers
Ministers has to be appointed from the Parliament. hence melding the responsibilities between the legislation and the executive branch. Ministers that introduce the new legislation tend to keep much room for the discretion of the executive, rather than establishing strong legislative framework.
This on the other-hand results in Executive Being able to paw too deep into the legislation process. This is done in two ways,
- President has the ability to “Bribe” the MPs with ministry posts. This provides a strong hand to the president within the legislator. This furthermore enables president to bring any legislation to the parliament and push them through with no resistance at all
- President has the ability to “Punish” the MPS through the political party mechanism. There are currently no regulations in the country that limits the presidents influence on the political party. In most political party legislation s president has absolute authority over party matters. This coupled with political parties ability to remove the MPs that does not support the legislation they support.
Sad reality is that average voter in Sri Lanka believes the MPs has to follow the president / party leadership. Often the MPs that stand by his or her own convictions treated as traitors. The voter does not understand the MP has to represent his constituents not the “Political Party”.
The political party has too much power
Structure and the operation of Political parties in Sri Lanka and its link to the government is opaque in the Sri Lankan political system. As stated above the Political party has too much power over the Members of the Parliament. Introduction of the preferential voting system has made this control even more absolute. Today the Members of the Parliament don’t represent their constituents. The just represent the power of the political party in the parliament.
Consecutive degradation in “Power of Public” in the legislative process
General public has no means of making significant contribution to the legislative process. Progressive degradation of the system was supported by the introduction of the fast-track legislative process, removing the public’s ability to question or challenge the legislation s that come through the parliament or the process of making such legislation s.
Especially the Sri Lankan legislation does not allow the public to challenge the legislation s after its finalized. This allows the legislator to change proposed legislation after the initial judicial challenge process. We have seen examples of this in the past.
Parliaments ability to reward itself
Parliaments ability to support itself by building benefits and privileges has blurred the accountability and the legitimate conduct of the MPs. This has resulted in loosing the credibility of the MPs.
Limitations on Independence of Judiciary
The Judiciary and the Independence of judiciary are always treated as an afterthought. The power over the matters related to management of judiciary is being pushed around between legislator and the executive with no regard for the power of the people. This results in limiting the ability of the judiciary to act interdependent.
This maybe a result in people not understanding the basic covenants between the various branches of the government. For example the people expect a government to punish people that did something wrong in the past. They have no recognition that government does not / and must not have the ability to punish or vindicate anyone.
This current system needs to be revamped to build a modern democratic state that will have the agility in administration and equity in legislation that is backed by the Independence of judiciary.
Guiding Principles for a Future Constitution
Any new constitution development process will have to be build on basic principles of
- Parliament members represent the constituents, accountable in-front of his/her constituents for each and every decision that she makes in the parliament
- Ensure the legislator has no conflicts of interest with the executive. Remove the provisions that force MPs get engaged in executive branch. Establish the parliament as a governing body for the executive branch than a department of the executive branch
- Executive must have the complete power, authority and accountability for the operation of the government. This authority has to be absolute and specific.
- Executive should not have the ability to meddle in the Judiciary and/or legislative branches (example: Use of party hierarchy or power over members of judiciary)
- Independence of the Judiciary has to be designed from the ground-up that should not have the ability to get compromised over ongoing legislative changes
- Segregation of the powers and strong preventive measures to prevent encroachment of powers by different branches
- Independence of the elected officials has to be guaranteed. Elected officials should only answer to the constituency and the people must have the power to control the actions of and recall elected officials
In following articles I am trying to establish a framework for the future legislation of Sri Lanka.
Read the Sinhala Translation of this article following the link bellow