Applying the Doctrine of the Separation of Powers

Towards Responsive and Responsible Government:

Independent and Efficient Executives, Autonomous and Broadbased Legislatures

The argument of this paper is based foursquare upon Lord Acton’s dictum that power corrupts, and absolute power corrupts absolutely. I intend therefore to look at the various repositories of power in the current Sri Lankan Constitution and to show that power is concentrated wherever it exists, and that this has been the case throughout Sri Lanka’s modern history, if not its whole history. My argument is that broadbasing power will help to minimize the inefficiency and abuse and corruption that have characterized the Sri Lankan state since independence.

Acton’s observation was of course made more than a century and a half after Montesquieu’s seminal assertion of the need for a Separation of Powers in the governing system of any country. Given that Montesquieu’s claim was based on his study of the English system, which he thought much better than the French system, it has generally been assumed that the English Parliamentary system is based on a doctrine of dividing up power. In the Sri Lankan context this has led to sentimentality about the Westminster system, when what seemed the overweening powers of the Executive Presidency were criticized. Relying on the characterization by A J Wilson of J R Jayewardene’s 1978 Constitution as Gaullist, commentators decry what they see as a continental centralization of power, and suggest that an Executive Presidency is inherently absolutist. They call instead for a restoration of the previous system, forgetting that it was precisely under that Parliamentary system that the virtual dictatorship of the executive was established.

To understand why this is, we should perhaps go back in history and study the development of the British Parliamentary system. It is understandable perhaps that, in comparison with the autocracy of Louis XIV, it seemed pluralistic to Montesquieu. But we should not forget that the assertions of the independence of Parliament in that period were with regard to its legislative and monetary functions. It had no executive function to speak of then, and it was precisely with regard to the executive that its precious independence was noteworthy.

For in those days, difficult as it is to understand that mindset now, restraints on the absolute power of the ruler were scarcely thought of. The concept of democracy, almost universal though it is now, scarcely existed three hundred years ago. The practice everywhere, with a very few exceptions, was and had been that the ruler exercised power simply by virtue of that power. Whether hereditarily obtained or by conquest, that power was an entity in itself. Power was – and this is broadly true of all continents and countries – in the hands of an executive authority, generally known as a king. And it was that authority which also exercised other forms of power, in particular the powers of making laws and of administering them.

The idea that the consent of the governed was an essential constituent of governing power was a notion that was developing a theoretical foundation, but had little practical effect. The one exception to this was England, but even there, there was no question of challenging the basis of power. Rather, what had developed there over several centuries was the concept that power had to be restrained. But this restraint had little to do with the executive functions of the ruler. Thus Magna Carta placed very basic restrictions on the judicial and legislative powers of the executive authority. It was followed, after the establishment of a Parliament that the King encouraged as a counterweight to feudal lords, by the assertion by Parliament that it had an authority independent of the King. But this was with regard to certain respects only, albeit these were enlarged from its primary function, that of making law, to encompass also the raising of money, for which laws were needed.

The English Civil War then marked the first occasion in modern history when the executive authority was challenged. But we should note that this was not a conceptual challenge, to the very basis of that authority, but rather with regard only to a specific area of competence, the raising through taxation of money for the executive. Charles I however, perhaps realizing what was in store, and that such challenges, once begun, would increase in scope, fought for his prerogatives, and lost. Interestingly enough, what this meant was the emergence of another all powerful authority, in the form of the Lord Protector. But, despite this, and despite the Restoration, the upshot was, not a return to absolute power, but rather a situation in which the limitations of the executive authority were recognized and as it were enshrined in that seminal non-existent document, the British Constitution.

The next step, and perhaps the most important, was the assertion through the Glorious Revolution that there could be constitutional restraints, which meant restraints administered by the legislature, on the transmission of the executive authority. This was in a sense a claim that the consent of the governed was essential if the government were to command obedience. But that too might not have meant much, given how dominant William III showed himself to be, after that Revolution had placed him on the throne instead of his father-in-law who had relied so openly on the Divine Prerogative of Kings. Fortunately for the British, William had no children. Though Queen Anne was more decisive than she is ordinarily given credit for, the dying out of that dynasty and its replacement by Germans, Germans who knew no English, institutionalized the power of Parliament as having some sort of executive authority as well.

But when Montesquieu wrote, none of this had happened. What he analysed then was a situation in which the King, or Ministers appointed by the King at his pleasure, exercised full executive authority. Parliament had no share in this authority. It had, as Montesquieu noted, a separate area of authority. But, in terms of the totality that had existed before, the totality that the French King still controlled, the British Parliament acted as a restraining force on the English King and his Ministers. This was because it exercised power both as to the making of laws, that the executive authority needed, as well as the allocation of resources, which that executive authority needed even more. These, though limited, were crucial areas, and for Montesquieu that was enough. Given that laws were administered too by a Judiciary that had, despite Judge Jefferies, shown itself independent enough at the time of the Glorious Revolution, he presented England as a nation that had institutionalized safeguards against executive authoritarianism.

What he could not have foreseen was the manner in which, with George I and II effectively strangers in the land they ruled, a representative of Parliament, as Prime Minister, began to exercise executive authority. Of course initially this was on behalf of the king, who could in theory take the reins of power back into his own hands. This indeed happened when George III, the first Hanoverian to actually have a command of the English language, wanted to make decisions for himself. Fortunately, the debacle of the American War of Independence put paid to that, and after that the influence of the Prime Minister could only grow and grow. So what emerged during the nineteenth century was a situation in which the Prime Minister became the executive head of the country, while also being the head of the legislative branch.

But at the same time it must be granted that the continuing status of the monarch also contributed to a pluralistic form of democracy being established in Britain rather than it merely experiencing the replacement of one form of autocracy by another. Because the King was there, there was no way Prime Ministers could be treated as absolute executive authorities, nor could they plan to perpetuate their power without recourse to elections. There was the possibility of dissolution which could take away from the Prime Minister the Parliamentary majority on which he relied for his power. And in Britain indeed there was the long established tradition of the independence of members of Parliament, which meant that Prime Ministers had to be careful not to push their luck. Indeed, even though Bagehot complained that Parliament was losing its clout, and that all decisions were effectively made by the Cabinet, without Parliamentary participation, the pluralistic nature of cabinets in those days made it clear that autocracy at least was not being re-established.

It was then the long tradition of shared authority, I would submit, that established the continuing dependence, on Parliament as a whole and specifically on the Parliamentary election system, of the executive selected initially through Parliament. So Britain escaped the fate of several other countries where the deposition, rather than emasculation, of a monarch led either to anarchy or the entrenchment of the authority of whoever had replaced the monarch as executive authority. The aftermath of the French or Russian revolutions, the chaos in Central Europe after the German and Austrian Empires were dismembered after the First World War, the establishment in the Arab countries of new dynasties (Daud’s, Saddam Hussein’s, Assad’s) after the overthrow of monarchs, make it clear that executive authority when challenged creates a vacuum that is generally filled by a similar authority.

And unfortunately this has been true of the various countries in which the British established their version of Parliamentary democracy. In Britain traditions of power sharing developed in the context of a hitherto absolute monarch. But the system that developed there was established in other countries where no such monarch existed, of the sort whose excessive power would be remembered and guarded against. Inevitably then what happened was the elevation, in those other countries, of the elected Prime Minister to a similar exalted and unchallenged status. This was not inevitable, and of course it has proceeded in different ways and at different paces in various countries. But even in Britain we have seen in the last half century an enormous accession of power to the Prime Minister, in terms of his control of the cabinet as well as of other branches of government. That being the case there, it is only to be expected that, in countries where there is no well established tradition of dissent, the authority of the Prime Minister has been overwhelming.

It is significant in this context that the constitutional entrenchment of this fact took place in Sri Lanka under a Trotskyist Minister for Constitutional Affairs. Colvin R de Silva belonged to a tradition that would have seen monarchy as anathema, and even the highly centralized dictatorship of a Stalin as reprehensible. And indeed his constitutional ideal was not to elevate the office of Prime Minister to that of a virtual dictator. Yet, by asserting the view that Parliament was supreme, and supreme in all aspects of government, executive, legislative and judicial, he in effect made the position of Prime Minister supreme.

How did this happen? Colvin R de Silva would probably have been a non-Conformist in the heady days when Parliament was establishing its superiority in England, and would certainly have believed passionately in the capabilities of individual members of Parliament. With that however he combined a strong belief in party discipline, perhaps born of the conviction that a capable thinker such as himself would contribute to the formulation of party positions, which he could then naturally follow without hesitation. As a result, he forgot completely the fact that, in a Parliamentary democracy in which elections were fought on party lines, the individual member of Parliament was at the mercy of his party hierarchy, which need not necessarily engage in a consultative process. As a consequence, dissent against the party leader would be rare.

So the party leader with a majority in Parliament commanded the legislature. As Prime Minister he or she commanded the executive, and the legislative would be little inclined to question executive action. And by commanding all appointments to the judiciary – and indeed by the provision, explicit in the constitution, that Parliament too could sit as a court – he or she was in control of the administration of justice too. It was scarcely necessary then for this last that, unlike at Westminster – and unlike in the original 1947 Soulbury Constitution of Sri Lanka - the courts were under a Minister of Justice elected on party lines just like every other member of the Cabinet. The simple distinction Soulbury had made, that Justice should not be in the hands of a politician who had necessarily to be subservient to an electorate, went out of the window completely, in the institutionalization of the absolute power of Parliament.

Unfortunately the adverse effects of J R Jayewardene’s 1978 Constitution masked the fact that the 1972 Constitution also entrenched absolute power in one person, albeit selected by the people through a Parliamentary election. The latter Constitution then purported to change our system radically, in establishing an Executive Presidency directly elected by the people. So the overwhelming power the chief executive has under that constitution has been attributed to the provisions of the 1978 Constitution. That this was not so has often been pointed out, but it has not been accepted in the past in view of the emotional attachment to the British system that we still carry with us, contrasting it with the obvious excesses of Jayewardene himself, and his successors. But the present situation has made clear to us the excessive power that accrues to a Prime Minister under the present constitution, if he or she does not belong to the same party as the President.

As we can see, any conflict that arises is with regard to which of the two actually exercises power. There is no question of one being able to act as a check on the other, except in terms of possible future electoral advantage. And when there is conflict, the clear winner will always be the Prime Minister, by virtue of the majority he commands in Parliament. So the present situation should at least make clear what was obscured earlier, that the source of overwhelming executive authority is not the 1978 Constitution but rather the provisions of the 1972 Constitution, and before that the 1947 Constitution, that were kept in place in 1978. And, even more tellingly, it is the inherent absolutism of a system that confers upon elected representatives all the powers that previous absolute monarchs had that leads to the constant abuse of power we have had to experience under all sorts of governments.

So, to sum up the situation –

1. Executive Power is exercised by the executive authority, which is the Cabinet
2. This Cabinet is appointed in accordance with a Parliamentary majority
3. It is therefore appointed by the person who commands a Parliamentary majority
4. When the Parliamentary majority is that of the President’s party, the President controls Cabinet appointments and hence the executive
5. When the Parliamentary majority is not that of the President’s party, its leader becomes Prime Minister and controls Cabinet appointments and hence the executive
6. All executive authorities require a budget and this budget is controlled by Parliament
7. Whoever controls a majority in Parliament therefore controls the budget and therefore controls all executive bodies
8. Though certain appointments are in the hands of the President, for these to function effectively budgetary provision from Parliament is essential, which in effect means Parliamentary approval, whether specified or not
9. The President therefore is required to compromise with Parliament, and in any conflict is bound to come off worst
10. The President’s only significant independent power is that of dissolving Parliament a year after an election, though this power is suspended if a majority in Parliament votes to impeach the president

Of course it could be argued that the situation now is that of Britain when Parliamentary traditions were emerging, and the existence of an elected President provides a check on the Prime Minister’s power, equivalent to the check provided by a hereditary monarch. But, given that the President is a political player, and that therefore hostilities are of a political nature, that sanction – given also the provisions of j) above – is not one that will be respected. No, the fact is that, just as with the 1972 Constitution, the 1978 Constitution allows absolute authority to accrue to whoever controls the legislature.

J R Jayewardene would have argued that this was not his intention. But it should be noted that, whereas he had a chance to institute some conceptual changes in the system of authority that prevailed, he very pointedly refrained from doing so. The proof as it were of the essential superficiality of his new constitution lies in his failure to live up to the theory he had enunciated before the 1977 election about the Constitution he hoped to introduce. He had remarked there on the need to promote efficiency by having an executive detached from Parliament, on the American or French models. However, when the new Constitution was introduced it specifically laid down that all members of the Cabinet had to come from within Parliament.

The argument adduced in favour of this was that it would ensure accountability. In practice however what it ensures is the subservience of Parliament, or rather of a majority in Parliament, to the executive. To put it simply, the most forceful personalities in the majority group in Parliament are in the cabinet. Others in Parliament aspire to be cabinet ministers, and know that criticism of the cabinet will reduce their chances in this respect. The result is a Parliamentary majority that is, almost necessarily, subservient to the executive.

Jayewardene of course, characteristically, ensured this subservience by introducing a provision whereby any member of Parliament who lost his party membership also lost his membership of Parliament. The result was a Parliament totally under his thumb. Criticism could be heard outside, but was hardly ever voiced in Parliament, the one or two exceptions in the eleven years of the 1977 Parliament basically proving the rule, since they were old men without a political future who were irredeemably at odds with Jayewardene.

That provision has been since challenged in the Courts, and does not of itself ensure unquestioning obedience now as it did before. Still, though expulsion may not be so easy, ostracism is to be avoided, while the hope of preferment naturally burns bright in every political breast. The present Prime Minister’s assertion, that any expression of dissent should entail a forfeiture of all offices, makes all too clear his adherence to the Jayewardene view of democracy. And perhaps the idea that a member of Parliament is an independent entity, with responsibility first and foremost to the people who elected him, is incomprehensible to most of our legislators now. The assumptions underlying the Westminister system, whereby the executive is controlled by the members of the legislature, make no sense now. Instead the Parliamentary majority – except where there is enough dissent to create a new majority, with different expectations of advancement – is brought firmly under the control of the head of the executive, through hope of carrots and some fear of sticks. The final result is the reduction to a mere rubber stamp of the body which should be the repository of people’s power against the executive.

For Jayewardene of course none of this was a problem. The generous view is that he was quite convinced of his own infallibility, and the idea of checks and balances would have seemed an unnecessary luxury. Yet the deliberate ignoring of his own previous arguments, as well as the fatal expulsion provision, suggest a man who knew what he was doing, who felt the necessity of guarding against any challenge. The tragedy however is not his, it is that of all the Parliamentarians who, without demur, allowed themselves to be made the tools of his entrenchment of absolute power.

And it is more tragic in that, in that day and age, unlike perhaps now, there were a lot of people in Parliament steeped in political philosophy, who understood what accountability was, who knew about the need to separate powers. That they all acquiesced without a word is a remarkable tribute to Jayewardene’s powers of persuasion, or else a stunning indictment of Sri Lanka’s claim to any intellectual tradition in its politics.

The establishment of an Executive Presidency was, in conception at any rate, a dividing up of the Legislative and Executive functions. Jayewardene’s main argument for dissociating the executive head – and, initially, the rest of the executive - from the legislature was one of convenience, to allow them more time and freedom to get on with the business of running the country. While his preoccupations at that stage are understandable, what is sadly apparent is that there should at the time have been no examination of the theoretical underpinnings of this model of government, nor of countries where it had been implemented with a fair degree of success. Criticism from those opposed to him was matched, at less intellectually convincing levels, by adulation of someone who was seen as a catalyst for change.

Now, 25 years too late, we should begin by considering the context in which Montesquieu suggested the desirability of the separation of powers. He wrote in the context of an all powerful French monarchy. He derived his inspiration from England where the monarch was still in theory the supreme executive authority, but where he was restrained by the need for Parliamentary approval for expenditure as well as new laws.

When the American revolution occurred, more than half a century later, it was precisely in the context of the English King having imposed taxes without the consent of the governed. The success of the revolution then meant the establishment of independent Parliaments, at national as well as state levels. But while the primacy of this institution had to be guaranteed, there was also need of an executive, which could not be based on the model of a Prime Minister answerable to Parliament, for the simple reason that such a model did not exist then. Rather, the only model that existed at the time was that of an autonomous executive authority, whether that of King or Governor.

Montesquieu’s ideal then could be fulfilled completely, with an elected executive President who then appointed a cabinet that was distinct from the legislature. Accountability was maintained however by ensuring that cabinet appointments had to be approved by the legislature. But, given that membership of the legislature was important in itself, and not seen merely as a stepping stone to executive office, the legislature was more likely to perform this function independently than in a situation where its leading lights were competing for cabinet positions.

So too with the thorny question of judicial appointments, where the Presidential prerogative of appointment was tempered with the need for approval by a substantial majority of senators. And of course the independence of the Supreme Court was further ensured by the provision that appointments were for life, thus avoiding the need to please so as to attract a further appointment after retirement from the Court. This did not of course apply to Cabinet positions, given that the executive had to work together. However, arbitrary dismissals were the less likely in a context in which any replacement had to be approved in hearings which could air issues that might prove embarrassing.

This separation of the functions of the executive and the legislative has of course made the former more efficient. The Westminster model was developed at a time when the tasks of government were much more limited than they are now, and also when gifted amateurs were more likely to take to politics. As the situation changed, Britain built up a professional Civil Service and, when that too seemed inadequate for the jobs to be done, it introduced systems of recruitment to administrative positions that encouraged professionals to join for shorter or longer periods as was necessary. Sri Lanka however has treated the public service as a social service, so that it is now proportionately one of the largest in the world. At the same time it has allowed length of service to be the single most important deciding factor with regard to promotions, with the result that excellence or even capacity are difficult to find in most departments. When this is combined with Ministers appointed for political reasons – with length of service again being elevated into a sacred principle – the result is an almost dysfunctional executive.

In America, the President can seek out professionals for his Cabinet. And just in case he sees fit to reward his cronies at public expense, these appointments are subject – unlike special appointments in Sri Lanka – to legislative scrutiny. Indeed, even in France, though most cabinet ministers are politicians, there is provision for outsiders, while the politicians have to give up their positions in the legislature if they accept executive office. This of course means that legislative scrutiny of their performance is less constrained than if the leading lights of the legislature are members of the cabinet.

My argument with regard to Sri Lanka however is that, because they have to perform two additional functions, most Ministers are unable to fulfil their more important executive role properly. The fact that they are not even chosen according to their suitability for this role makes clear that we cannot really expect any positive results from the executive in this country when taken as a whole. A few Cabinet ministers may do well, but this is an accident, rather than a necessary part of their role. In short, even though we have a Constitution that suggests the primacy of the executive function, it is not surprising that government in Sri Lanka is scarcely worthy of the name any longer.

But there is another problem connected with this, and that is the abnegation of the legislative function too. As mentioned earlier, members of Parliament see appointment to the cabinet as the summit of their ambitions. Therefore preparing or scrutinizing legislation, or the budget, or public accounts, is not something a member of the government majority is likely to do in a critical frame of mind. Conversely, the opposition members are likely to do this purely critically, because their functions are more widely political rather than merely legislative in scope. The coming together of legislators across political divides, in order to defend the interests of the people they collectively represent, is a pipe dream. And those who are supposed to be the best and most authoritative on the government side simply cannot bring to bear any objectivity to the process of legislative scrutiny, because they, as ministers, are part of a cabinet that has proposed legislation to fulfil an executive purpose.

I spoke above also of a second function of ministers, in their legislative capacity, that also is at cross purposes with their more important executive function. If they do not legislate in any serious sense, given that they have always to give priority to the view they as executives have of any proposed legislation, what then is this second function that they fulfil as Members of Parliament? Unfortunately it is the purely political one of keeping an electorate happy. Whereas executives in other countries with Executive Presidencies, the United States or France, can concentrate on their executive responsibilities, Ministers in Sri Lanka concentrate on their constitutencies – or rather on the much larger districts that they have to nurse. Questions of policy or of implementation are secondary to the problems of the masses who visit Ministries and homes at all hours of all days of every week.

My argument then is that there is really no point in complaining about the inadequacies or the inefficiencies of particular governments or politicians. The system we have ensures that the executive cannot function. Unless and until that is constitutionally addressed, this country will continue, as the ‘Economist’ put it, to underdevelop. On the positive side, we do not need to look very far, given that models based on irrefutable theories are available to us if we only choose to look. The negative factor is that, instead of learning from others, we seem always to want to reinvent the wheel, in a manner that ensures it runs crookedly.

My argument then is that, though the present system is disastrous, it is precisely because of those elements deriving from the Westminister system, rather than from the introduction of an Executive Presidency. In any system of government, the executive is bound to be the most important branch. It must therefore be isolated from the other branches of government, the independence of which have to be established and institutionalized. Of course there will always be opportunities for influence, but limiting these as far as possible, and removing any institutionalized mechanism for such influence, should be a priority.

In that respect the Westminister system is almost necessarily disastrous. Though in theory Parliament selects the executive authority, once that is done Members of Parliament – or rather of the majority that has done the selection – are immediately subordinated to it, simply because membership of Parliament is seen primarily as a stepping stone to executive office. It is essential therefore, if we want to encourage all branches of government to fulfil their responsibilities properly, to exclude members of Parliament from Executive office as is the case in the United States or in France. This will restore to Parliamentarians their primary function of legislators, and watchdogs through budgetary provisions of the actions of the executive.

It will also permit the elected chief executive a free choice of cabinet members, so that suitability can be the hallmark rather than the political skills that ensure election to the legislature. In the Sri Lankan context the appointment to ministerial office of those who have not engaged in electoral politics will also remove one of the most serious problems to have overtaken Sri Lankan politics since the massive rise in the cost of election campaigns. Naturally those elected seek to recover the cost of their elections, and executive office is often the key to doing this quickly. Selecting cabinet ministers who do not begin their term of office with the need to pay off electoral debts, financial and otherwise, will in itself be a boon. When to that is added the capabilities that will be the main criterion once politicians are removed from eligibility, the benefits to the country will be incalculable. At its simplest, we have to recognize that the days of the gifted well meaning amateur who succeeds in politics as well as in administration are over. The history of successive Sri Lankan administrations suggests that they never existed, since the number of able ministers to hold office in any cabinet could generally be counted on the fingers of one hand. Now that more destructive negative factors have entered into the picture, the idea of continuing with this aspect of the Westminster system is preposterous.

Of course expecting this sort of change to be voted in by Parliament may be optimistic. Yet given that Parliamentarians seem without question to have voted for the provision that they would lose their seats if they were expelled from their party, it is possible that a measure of this sort could be passed by a capable leader. And perhaps it could be introduced in stages, through initiating some such mechanism at Provincial Level to begin with.

In that respect certainly there is general agreement that the present structure of Provincial government needs radical revision. At its simplest, the present Provincial Council system reduplicates the worst aspects of legislative and executive authority that we see in the central government. More seriously, the political system ensures that positions in these bodies are seen merely as stepping stones to positions in the central government. As a consequence, their members are as subservient to powers at the centre as members of Parliament are to the central executive. The anxiety of Provincial Chief Ministers to obtain even a nugatory portfolio at the centre indicates in what comparatively low esteem they hold even the highest executive post in a Province. With such a mentality almost universally in evidence, the idea that Provincial self government can lead to positive measures for the Province seems laughable.

And such attitudes will be difficult to change if we continue with the current system, based on the Westminster model, of creating a Provincial executive selected from the Provincial legislature. The Chief Minister of a Province is now in effect the nominee of the party hierarchy, which means the central party authorities. His primary allegiance is to them, rather than to the inhabitants of the Province in which he exercises executive authority. And the members of the Provincial Council, in turn, see themselves as party members first, without any obligation to scrutinize the initiatives of the Provincial executive from the point of view of the people they represent.

Provincial Councils in fact, as now constituted, are simply additional, and not quite necessary, pawns in the game of chess played by central party leaders. Yet for productive devolution, what is desirable is distinct powers exercised on a basis that does not reinforce structures at the Centre.

I would argue then that, to build up responsive local government, we need much stronger local government bodies, operating in reasonably small areas so they can be thoroughly familiar with the relevant issues, with clearcut administrative responsibilities and distinct decision making powers in specific areas. The actual scope of such powers can be debated, but once power is devolved it should not be subject to interference from other bodies.

Thus, for areas in which policy making and administration need a wider provenance to be effective, we should have governors elected for each Province, similar in their authority to the Executive President. The executive officers who work with them should be appointed, rather than being drawn from elected politicians. To check on them however, both in terms of laws and regulations that need to be passed, as well as with regard to financial provision, there should be a Provincial Assemby. This however need not be elected directly, since to add on yet another tier of politicians without a distinct function would be counter-productive. Instead, since decisions should be made in terms of local priorities, such an Assembly could consist of delegates from the local bodies described above, which would have their own distinct identities.

The governors then, by virtue of being elected direct, as in the case of American governors, would have their own authority which would not be subordinate to that of their party leaders at the centre. They would clearly have a greater stake in the area they govern than the present sort of Chief Minister, whose main goal seems to be the obtaining of a cabinet post in Colombo. At the same time they would not, as at present, have a Provincial Council generally subservient to them as their source of funding. Rather they would have to work out a mutually beneficient programme of action with an independent assembly that represented the different areas in the Province. Instead of relying on a majority that necessarily reinforced the executive, the Governor would have at least to pay some attention to a wider range of interests, while having professional administrative assistance rather than ministers appointed for political reasons.

Such a radical change with regard to power at local levels is, I believe, essential if devolution is to be at all meaningful. Without devolution clearly we failed miserably to address the problems at the periphery. The present system of devolution however has provided few solutions, in part because most elected provincial authorities see their local responsibilities as secondary. I can think of only one case of a Chief Minister who was truly involved in the Province he was responsible for, and that is Jayawickrema Perera in Wayamba when Provincial Councils were first introduced. There is no doubt that, beginning with its now universal name recognition, he put Wayamba on the map. But before long he was withdrawn to politics at the Centre, and that Province too now languishes in mediocrity like all the others.

Yet my argument is not that there should be more people like him, or that the central party leaders should choose more able men to run Provincial Councils. My point is that this is theoretically and practically impossible, so long as elections to Provincial Councils continue as dress rehearsals for what happens on the larger canvas. Rather, these should be ends in themselves, and that will only happen when the chief executive authority elected for a Province has a distinct individual identity. The British model has thus far proved wasteful and inefficient. An alternative model, the American, is easy to understand and to implement. Unfortunately we have to go a long way to overcome the determination of central authorities not to allow any potential rivals to emerge, even if the field these rivals function in remains comparatively tiny. Yet the present situation is so obviously unsatisfactory that I hope there will be some willingness to look at least at a radically different approach.

But instituting more responsive systems of government at the periphery will not of itself be enough. There is also need for assuring the periphery that its concerns will be noticed at the Centre. Unfortunately, given the metrocentric attitudes of most of our politicians, the problems of more distant areas have been largely ignored in the period since independence. Apart from D S Senanayaka and Premadasa, no leader planned or implemented proactive development policies in distant parts. Occasional enterprising members of parliament worked actively on behalf of their constituents, but changes were piecemeal, a school here, a hospital there, not the sort of fundamental restructuring that would have helped the bulk of the population. The dominant ethos of our parliament was urban, dedicated to the western seaboard, with little trails going south to Matara, east to Kandy, north east to Kurunegala, along the narrow ribbons that constitute our main roads and their catchment areas.

This is not surprising, given the vast preponderance in parliament of MPs from these areas. Of 196 elected MPs now, over 50 are from the three Districts of the Western Province. Nearly 50 more come from the Kandy, Kurunegala, Galle and Matara Districts. With a clear majority from 7 districts – and a greater majority in terms of stature, as can be seen from the allocation of cabinet portfolios, even for instance the recent elevation of several bright young things to the cabinet – these areas are bound to be the focus of attention. And as a result, other areas, particularly those that seem distinct in terms of race or class (categories that one should extend to include language and religion and occupation and education and also caste) are likely to feel neglected – with the actual experience of the last fifty years confirming this feeling.

What could be done to restore the balance? Once again we have models to emulate, not only from the United States but from several countries that developed such models from different perspectives. The United States, Germany, Australia, India, to name but a few, have two chambers of Parliament, the second of which is specifically intended to provide representation for the regions. There are different systems of choosing these representatives in these different countries, and the weight given to the regions differs, but the basic principle at least is one that should be considered.

Unfortunately in Sri Lanka the concept of a Second Chamber is treated with scorn, not least because Sri Lankans with their characteristic Anglo-centrism think of Second Chambers either in terms of the Senate the British bequeathed to us, or in terms of the British House of Lords. Neither represented any part of society that clearly deserved a voice in Parliament, neither was elected by the people, and therefore it was assumed that all Second Chambers were necessarily elitist and undemocratic.

This position may seem so ridiculous that I might well be accused of making it up. But one has only to look at the notes inflicted upon thousands of students, notes written under the influence of the proponents of what they termed Parliamentary supremacy who framed the 1972 Constitution, to realize the terrible truth of the adage that a little learning is a very dangerous thing. The notion that a Second Chamber is an antediluvian colonial legacy will die very hard in this country.

And of course there is some sort of reason for this belief. The Senate with which the Soulbury Constitution saddled us is indeed difficult to beat for sheer uselessness. It consisted of 30 members, with 10 being replaced every 2 years. Half of these were elected by Parliament, which meant they reflected the composition of Parliament: three usually would support the government, two the opposition. The other half were appointed by the Governor General on the advice of the Prime Minister, which meant they would support the government.

This meant that, when there was a change of government, there was a hostile senate, which turned supportive generally within two years. Then after the next election the process started again. Since the Senate had hardly any power, except to delay legislation for a brief period, this scarcely mattered. Given the various considerations that had to be taken into account in selecting people for the Senate, personal and financial, caste and creed, little attention was paid to the capacity to contribute to legislation or debate. A more useless body can hardly be imagined.

Nevertheless it survived 25 years, and it was only got rid of with the Republican Constitution of 1972. Understandably, this caused no regrets. And so the myth developed that Second Chambers were imperial, anathema to lovers of freedom. At a slightly more sophisticated level the theory was advanced that a Second Chamber that reinforced what the first did was unnecessary, whereas allowing it to contradict the First was undemocratic, since it was not elected.

The idea that members of the Senate could contribute to legislation was glossed over, since it was fairly clear anyway, from proceedings of both houses of Parliament over the years, that Parliamentarians contributed nothing to legislation. Laws – and budgets – were prepared by the executive, with assistance from the administrative service, and the business of Parliament was to pass them, with opposition Parliamentarians being expected to vote against them and use the debates to criticize any aspect of government they pleased. The time needed therefore for a Senate to look at legislation was time wasted.

Also ignored was the idea that perhaps a Senate could be elected. After all Parliament was elected, and it was Supreme, so there could be no reason to have any other elected body that might challenge this Supreme Entity. In the monolithic approach to Constitution making that was Colvin R de Silva’s hallmark, the idea of different types of electorates, or of weighting for groups that were left without representation on the first past the post election system that obtained, was not to be considered.

J R Jayewardene introduced proportional representation, which went some way towards ensuring that Parliament was more representative of the people as a whole than it had been previously. But given his own monolithic mindset, and the measures he took to subordinate Parliament totally to his own authority, he was not likely to think of setting up yet another body that had to be controlled.

Later however, when the Constitution was amended in 1987 to allow some autonomy to the Provinces, there was an opportunity for rethinking the relationship of the Centre and the periphery. Just as the periphery required power in certain respects to look after its own interests in a way the Centre could not, so too it could be granted greater involvement in decision making at the Centre through weighted representation there. But such considerations never arose, understandably in that the Provincial Councils Bill was simply a response to Indian pressure, not a measure designed to satisfy the many problems Provinces had faced over the preceding years. And of course, if and when anyone suggested a Senate, the almost Pavlovian response was the emotional one outlined above, that invoked democracy and opposition to colonialism, with no serious attempt to look at practices elsewhere.

Now however it is generally agreed that it would be desirable to restore to Parliament some of the capacity it is essentially meant to have. This concerns discussing and amending new legislation, planning and monitoring public spending, and generally keeping the executive on its toes. In such a context it would make sense to reconsider the whole question of a Second Chamber. Obviously there is need of improving the calibre also of legislators in the main Parliament, but this too would be helped by the establishment of a different authority that maintained a watching brief with regard to the other. And of course the Second Chamber could be weighted towards the Provinces that are less influential now, by allocating the same number of seats in it to each Province, regardless of size or population. Election to it should be on the Single Transferable Vote system, which would provide for broadbased representation, while ensuring that individual candidates have to have personal appeal.

Since this Chamber would be small, those elected to it would each exercise more influence than members of a Parliament which numbers over 200. The representatives of each Province, even the smaller ones, would have a status that representatives of the periphery rarely achieve in the main Parliament. This is more likely to attract high calibre contestants than the present dispensation, in which members elected from the periphery rarely have to undergo wider public scrutiny. It is to be hoped therefore that the Senate would emerge as a responsible and highly regarded body, representing a range of interests.

Underlying this proposal, as all others above, is the belief that dividing power up as widely as possible is the best way of ensuring that the interests of the public are safeguarded and furthered. The legislature, which is the most important body in terms of the longer term rights and interests of the population, should concentrate on such responsibilities without involvement in day to day executive activities. To fulfil these responsibilities well, and responsively, it should not be a monolith, but should include representatives chosen in different ways and at different times. And correspondingly there should be such autonomous legislative bodies not only at the centre, but in the Provinces too.

The Executive on the other hand should be constituted in such a manner as promotes its effectiveness. It should be free from legislative responsibilities, so as to concentrate on its primary function. At the same time it should be monitored by the legislature through that body’s supremacy with regard both to the making of law as well as the provision and monitoring of finance.

With these two branches of government separate and autonomous, the judiciary too, which is now seen as subordinate, will be able to affirm its own independence more easily. Further provisions may of course be necessary to affirm its independence, and its primary allegiance, not to executive or legislature, but to the Constitution and the laws. Similar provisions may also be necessary for the Public Service. But by and large the breaking down of the monolith that an executive power rooted in the legislature presents will I think serve, in the broadest possible sense, to set all institutions as well as the people free.

Rajiva Wijesinha
2003