By giving parties the right to expel members from Parliament, Jayewardene destroyed an important principle of parliamentary democracy—the independence of members of parliament. The main justification of parliament is that it acts as a check on the executive. In the British system members of the ruling party generally support the government, but they are free to criticise and question it. Turning them into mere lobby fodder, programmed to support the government under any circumstances, makes them redundant.
In Sri Lanka, as time passed, MPs realised that they could invoke the authority of the Supreme Court against arbitrary expulsions. But such a move set them in a position of hostility against the party. This usually meant they had to cross over to the opposition if they wanted to assert their independence even on a single issue. So Sri Lanka has been deprived of one of the great benefits of the parliamentary system, which in other countries allows members who think on similar political lines to maintain basic loyalty to their party while criticizing anything they find aberrant. In Sri Lanka, on the contrary, any dissent leads to oppositioning. So it is rare to find members willing to express different opinions, which happens usually only if sufficiently large numbers could be brought together for a change of government. But since most parliamentarians are not likely to change loyalties on appeals of conscience alone, financial incentives and promises of future office would have to be used to lure them. Instances of this approach have occurred recently, leading at the end of 2001 to a premature election.
When Jayewardene introduced the system of preference votes, he realised that some capable people might be alienated by the system and not want to come forward for election. He, therefore, introduced the National List, in which the strange figure of 29 seats is allocated to political parties according to the proportion of votes they receive nationwide. This was meant to ensure that a few capable people obtained entry into parliament. In some cases it has fulfilled its objective but again often such seats are given to individuals who have made more concrete contributions to the party or its leadership such as financial contributions or who have offered unswerving and indiscriminate loyalty.
Finally, Jayewardene devalued the position of the member of parliament still further, by reducing to negligible proportions the number of those who were just members of parliament without any executive office. He had ministers, project ministers, deputy ministers, and district ministers so that MPs with little competence, and several with none, were part of the executive branch of the government. Meanwhile, the main opposition party was in disarray, having only eight members. The party leading the opposition (the TULF) deliberately avoided national issues on the grounds that they represented a region requiring separate treatment. Thus, the capacity of parliament to function as an independent entity was virtually destroyed.
The precedent set by Jayewardene has been continued by several of his successors. In 2001, there was an attempt to limit the number of those in the cabinet by matter of agreement. The failure to institutionalise such a provision in the Constitution (as has happened in India, where executive office is confined to no more than ten per cent of the legislative body in question) led to grave abuse by the government elected shortly afterwards. The following regime, if to a slightly lesser extent, also continued the same practice in that it had fewer ministers but more deputy ministers.
Given the cost of such excesses to the country and the subsequent incapacity of parliament to fulfill its functions properly, it would be desirable to specify in the Constitution the number of ministers that should be appointed and their areas of responsibility. This is the case in the United States, where the cabinet is restricted now to fewer than 20 persons, each with a specific role. There will be changes as social requirements change, and it would be advisable to initially permit two or three extra ministries for particular tasks that may arise. But the principle of restrictions based on rational assessments, rather than appointments made for political and not national considerations, should be introduced and strictly upheld.
This principle was agreed by those who supported Maithripala Sirisena for the
Presidency, and his manifesto says clearly that ‘The number, composition and
nature of the Cabinet of Ministers would be determined on a scientific basis.’ But
this has been ignored, and though the new Constitution does have a provision limiting the number in the Cabinet, there is allowance for exceptions which may well lead to abuse.
Constitution of 1978 and Executive Presidency
Jayewardene’s 1978 Constitution was introduced simply as an amendment to the previous Constitution, without even pretence of consultation as had occurred after the 1970 election. The main feature of the Constitution was the introduction of an executive presidency. Jayewardene had mentioned the idea during the election campaign and he, therefore, saw his electoral victory as a mandate for this radical change.
One reason for his critique of the 1972 Constitution was the anomalous position of the president. The Soulbury Constitution gave full power to the prime minister as he or she commanded the support of a majority in parliament. Again the 1972 Constitution, in basing itself on a mandate from the people, as opposed to a Constitution granted by the British King and his Parliament, asserted the sovereignty of parliament in the Constitution. Its basic philosophy was that power belonged to the people but it was exercised by the parliament chosen by the people. Thus, the legislative power of the people was exercised directly, its executive power through the cabinet selected by parliament and its judicial power through courts appointed by parliament.
At the same time, like all other republics, those who framed the Sri Lankan Constitution recognised the need for a president who was officially the head of state. But they did not think of appointing the head of state in a manner that established his connection with the people (either by direct election or through election by parliament). Instead it handed over the duty of appointing the president to the prime Minister. This was a continuation of the situation in the past when the prime minister recommended a governor-general to the king. It also represented the actuality of the situation since the prime minister had greater powers by virtue of his commanding the support of a majority in parliament. But by leaving the appointment of president in theory as well as in practice to the prime minister, the 1970 Constitution removed the essential dignity of the office, however subordinate the position might be in practice.
Jayewardene, while criticising such a presidency, also suggested that for ease of administration too the president should be outside the parliament and should exercise executive powers. He proposed a system where the president would be directly elected by the people. In his reflections on the subject, he followed the logic of the American and French systems and proposed that the cabinet too should be outside the parliament as this would increase efficiency. Parliamentary control of the executive would, however, be maintained through the legislative and budgetary powers of parliament, as well as the right to summon ministers before it to respond to questioning.