qrcode.31104759After he won election, Jayewardene ignored his own political theories when he found himself in command of almost absolute power following the massive electoral victory in 1977. He was virtually unquestionable for, along with Senanayake, most of those who had held cabinet office in the 1965 UNP government were dead. Jayewardene was more senior than all those who remained and he soon dismissed his only contemporary, a cabinet minister who had been with him in the 1950s.

The fact that he did not implement his proposals was clearly his own decision rather than the result of political compromise. He probably realised that his control of parliament would be enhanced by continuing the requirement that the cabinet should be drawn from parliament. The executive would not be criticised by members of his own party if they were hoping to join it and if its senior members were present with them in parliament. Another reason may have been that he was winning over members of other parties by offering them executive positions. It would have been embarrassing if they had to vacate their parliamentary seats for this new system, in which case candidates would have had to be nominated to the seats by either Jayewardene himself or the party to which they had originally belonged.

Whatever the reasons, it has led to a situation practically unique to Sri Lanka where the head of the cabinet presides over colleagues who are all in parliament whereas he himself is not. The role of the parliament as a check on the executive is restricted because the dominant forces in parliament belong to that executive. This is, of course, a drawback the Sri Lankan system shares with political systems based on the Westminster model the world over. But the singular strength of that model, that the head of government is a member of parliament subject to parliamentary authorities and exposed to criticism as an individual, is lacking here.

Conversely, the strengths of the American or French model are also excluded. The capacity of parliamentarians to exercise their independent authority without being in the shadow of the executive, and the possibility of including in the cabinet talented candidates who are unwilling to subject themselves to electoral politics, are strengths that the current Sri Lankan system does not allow for. Thus, as the 1978 Constitution was introduced without much thought, Sri Lanka finds itself having the worst of both worlds.

Another anomaly in the Constitution is the way in which the balance of power between the president and prime minister is to be interpreted. This may not be much of a problem when the president and prime minister belong to the same party. However, when they belong to different parties the potential for conflict is considerable.

The Constitution specifies that the president shall appoint as prime minister, not the person who commands the confidence of the parliament, but the person who in his opinion commands that confidence. It could be claimed that this allows the president discretion when there is doubt regarding the interpretation of the provision. But when the situation is unambiguous the president cannot appoint an inappropriate person since a subsequent vote in parliament will make the position clear. But this simply begs the question as to who interprets and how and what doubt there might be. It seems to rule out legal challenges with regard to blatant abuse of discretionary powers.

With regard to the appointment of the rest of the cabinet, the president seems to have absolute discretion, subject to the provision that he may consult the prime minister if he thinks it necessary. It has been claimed that this means he need not consult the prime minister when they are of the same party, but should if they are not. This is clearly a matter for interpretation. Since the actual powers of the president with regard to particular areas of responsibility are not clearly defined—though recently the Supreme Court has ruled that powers with regard to defence are necessarily the prerogative of the president—the possibility of peaceful cohabitation when the president and prime minister are from different parties is extremely tenuous. The French example indicates that relatively peaceful cohabitation is possible in such a situation, but a prerequisite would be a clearer demarcation of responsibilities than the Sri Lankan constitution lays down.

It has long seemed necessary then for Sri Lanka to decide, before further confusion arises,  which system best suits its needs and to move towards institutionalising such a system with proper understanding of the principles underlying it. At the same time it is necessary also to consider the relevance of each of these systems to other tiers of government, whether provincial or local. Though a start was made on all this with the 19th amendment to the Constitution, that was not well thought out and seemed to be concerned with fulfilling personal agendas rather than establishing an effective and responsive system of government.

With regard to other layers of government, it is interesting that despite his proclaimed commitment to an executive presidential system, Jayewardene never contemplated instituting it for the Provincial Councils. He probably thought that it had failed when he tried it for the District Development Councils, in appointing a district minister as the executive authority, while holding elections to Councils to formulate policies for action. However, the reason for failure in that situation, apart from the political problems noted previously, was that the executive head was a stranger without any recognisable link to the community he or she was supposed to serve. The examples of directly-elected mayors, as in Bangkok or London, or governors, as in the United States suggest that a directly elected chief executive officer may be more efficient for units such as provinces. This is especially important for a small country like Sri Lanka as numerous governing bodies and officials without any clear cut functions could lead to an even greater waste of resources than the present administrative system entails.

In conclusion, it seems that Sri Lanka needs to work out a constitutional system that would enhance responsiveness to the needs of its people at all levels. This should be based on the study of systems elsewhere including understanding of the underlying principles. Particular attention should be paid to providing safeguards against majoritarianism. In this regard understanding of subsidiarity and the need for people at all levels to feel that they are participants in the decision-making process are essential. People also need to be empowered by the way in which their representatives are chosen and are made answerable to them. Transparency and accountability are vital for these to happen.

A careful study of past constitutions, and the errors that have been made in forming and implementing them, may help in this regard. But politicians should realise their limitations and understand that the best safeguard against the abuse of power is institutionalising in the constitution the checks and balances that will prevent accidental or deliberate abuse.