This is a much misunderstood doctrine, and I fear that ignorance of the principle will lead to reform of the current constitution in a disastrous manner. When there was a pledge to abolish the Executive Presidency, the more unsavoury elements in the UNP immediately declared that it would be replaced by an Executive Prime Ministership.
That is an absurd idea, but I found even Jayampathy Wickremaratne dogmatically declaring that an Act was being prepared to made such a transfer immediately. I argued against this strongly, first on the grounds that it would play straight into the hands of Mahinda Rajapaksa. He, and my friend Dayan Jayatilleka, were arguing that a vote for Maithripala Sirisena would amount to a vote to put Ranil Wickremesinghe in power. Had Jayampathy unveiled his draft Act as he claimed was necessary, the government would have made mincemeat of the opposition campaign.
My second point was I felt even more important, namely that it would be immoral to ask people to vote for Maithripala Sirisena only to transfer power immediately into the hands of someone who would never have been elected on his own merits. It is to Ranil Wickremesinghe’s credit that he recognized this. When I spoke to him shortly before the Sirisena candidature was announced, I confirmed that the Liberal Party would not support Mahinda Rajapaksa, but I added that we could not support Ranil either. The reason I gave was that he simply could not win, and he immediately agreed and said that was why he had tried to persuade President Kumartunga to come forward.
That confirmed my view that Ranil, though able enough with regard to economic discipline, was simply no judge of people – as the appointments he makes testify, culminating in the selection of Tissa Attanayake as General Secretary of the UNP. I told him then that Chandrika would do even worse than he would, and we had to hope for someone more acceptable to the nation to emerge. I think we both knew by then that Maithripala Sirisena would indeed emerge, but we respected confidentiality and left it at that.
What we now have then is ideal, with Maithripala Sirisena as President and Ranil working under him as Prime Minister. But I have realized, from the manner in which the Cabinet has been constituted, that Ranil has thought of electoral considerations first, and this is no way to run a country. It is for that reason that, in the reforms we are engaged in, we must understand basic principles of constitutionality. I therefore present here only the section on the Separation of Powers from my book –
In a few countries, such as the United States, the executive and the legislature are almost wholly independent of each other. This is in accordance with the doctrine of Separation of Powers, put forward by Montesquieu, a political theorist of the eighteenth century. Montesquieu believed that the people would suffer if any one individual or institution had absolute power. Therefore, he advocated that the legislature (the body responsible for making the laws) should function independently from the executive (the body responsible for implementing the laws). These ideas were followed during the drafting of the American Constitution in the 1780s.
Sri Lanka, along with many other countries, follows the British model which does not separate the executive from the legislature. In Britain, the king initially had absolute power. He ruled with the help of a cabinet appointed according to his wishes. Gradually however parliament developed a rival authority and it became customary for the king’s first minister to obtain the support of parliament. Then, during the nineteenth century, it was established that the king could not appoint a candidate as prime minister unless he had the confidence of parliament. Now, after a parliamentary election, the monarch invites the leader of the party which has a majority in parliament to form the government.
This in effect means that the prime minister, who runs the executive branch, also controls parliament. Earlier MPs felt that their main responsibility was to the people who had elected them and therefore they often challenged the executive on specific issues, even if they broadly supported it. Now however with allegiance to a party being considered more important than the interests of the nation or the people one represents, even parliamentarians who have no executive position do not normally challenge their party leader when he or she is prime minister. In countries like Sri Lanka, it is almost impossible to question the party members in the executive and remain in the party.
In Britain and in Sri Lanka, which follows the British model, the party leader can exercise control over the legislature by offering its members executive office. As there are no limits to the number of ministers who can be appointed to the cabinet, presidents or prime ministers in Sri Lanka often ensure the support of parliamentarians by making them ministers. In Sri Lanka, a new category of ministers called ‘ministers outside the cabinet’ has also been created, to ensure that the prime minister has the loyalty of even more parliamentarians. In Britain, there are many backbenchers in parliament even on the side of the ruling party, who can be critical of some actions of the government while broadly supporting its policies. But in Sri Lanka you rarely find parliamentarians able and willing to engage in constructive criticism of their own government. It should be noted that India, which has developed a more responsible system of constitutional adjustment, has now set a limit on the number of ministers the prime minister can appoint. This ensures that a majority of MPs, which will include those supporting the ruling party, remains outside the executive.
Significantly, in other countries where there are executive presidents, parliamentarians cannot hold executive office. In the United States, the president constitutes a cabinet of individuals directly under him, though each member has to be approved by parliament. In France, which was supposed to be a model for the Sri Lankan Constitution, the president appoints a prime minister who has the confidence of a majority in parliament. This generally means a leader of a party having a majority in parliament. However, the prime minister and his ministers have to resign from parliament in order to function as executive members. This ensures that those who remain in parliament can act as effective watchdogs on the executive, on behalf of the people.
In countries which follow the British system, the most important members in parliament who belong to the governing party are also part of the executive. So they are unlikely, in their role as parliamentarians, to be critical of the executive. This is left to members of the opposition who may at times oppose the activities and policies of the government blindly. Parliamentary democracy in countries following the British model has led to a close association between the executive and the legislature, thus negating an important safeguard against the most powerful branch of government.
While it may be difficult to change this system immediately, in the long run it is desirable that the executive consists of people who can do their job effectively for the country as a whole, without having to think about pleasing a particular constituency. It is also important to make sure that parliament as a whole exercises properly its legislative and financial and financial oversight powers. For this purpose we should have only a very small proportion of members of Parliament being part of the Executive.
For that reason perhaps the most important amendment to the Constitution that should be brought – and which can be brought immediately through the proposal already tabled by Vasantha Senanayake – is to limit the number in the Cabinet. There is no reason not to do it immediately.
When I suggested this people I thought were idealists said this should be kept open to allow people to come over to the government. I made no objection then to the suggestion that the ideal number of 25 should be flexible for this Parliament. But what we did instead was lay down a figure of 25 and then flout it. And we have flouted it simply to satisfy the claims of seniority and personal predilections, without concentrating on the efficiency that would have been more advantageous electorally than trying to satisfy individual claims.