25 August 2017

The legislator’s executive presumptions


There was a time when ‘separation of powers’ was intensely discussed.  It was over a question of territoriality, in particular the transgressions.  The focus was the Chief Justice and the debate was about executive overreach and legislative complicity.  Examples of judicial transgressions were also thrown around at the time, i.e. cases when a Chief Justice played ‘executive’.  Unfortunately, dispassionate intellectualism was evidenced more in its absence; personality, error, ego and expedience took center stage with the various players strutting around as public-interest litigators egged on by cheering squads who had their own agenda. 

In that particular drama the legislative branch, for all the noise therein, was reduced to ‘pawn’.  Part of the reason was of course the overarching character of the executive presidency, courtesy the 1978 constitution.  The 19th has done very little to ‘curb the enthusiasm’ so to speak of the executive presidency.  Even today the individual who can obtain the most amount of change with the least effort is in fact the president of the country.  That said, it is not the case that the law-makers have not arrogated to themselves executive functions.  That is a ‘transgression’ that is not talked of often.  

Tilak Dissanayake and Hilmy Sally who describe themselves as ‘design engineers and concerned citizens’ recently observed that legislators see themselves as executives and not as law-makers.  They weren’t talking about ministers, but ordinary MPs and disturbingly even Provincial Councillors and members of local government authorities.  

One of the reasons for this misperception about role and function is of course the bloated cabinets became the norm ever since Ranasinghe Premadasa used portfolios as a mechanism to deal with dissent following the ill-fated impeachment led by Lalith Athulathmudali, Gamini Dissanayek and G.M. Premachandra (all assassinated subsequently).  That’s how he sorted out parliamentary arithmetic in his favor.  

Later, Sarath N Silva’s horrendous ‘crossover ruling’ allowed the executive president to orchestrate crossovers; giving the particular line-crosser a cabinet portfolio was insurance enough against eviction moves by the party he/she contested from through membership cancellation.  In short there were so many ministers and deputy ministers that Parliament was executive-heavy to the point that the legislative functions were neglected.  Parliaments or rather the parliamentary group of the ruling party/coalition merely rubber-stamped laws and amendments crafted by party leaders to safeguard their interests.   Of the 19 amendments to the 1978 constitution, only one (17th) did not have the party-color painted on it.  It was done in a hurry and under extraordinary circumstances.; too quick for MPs to realize they were acting against their own interest!  The 19th was watered down and this too tells a story.  

The point is that representatives think ‘executive’ and act ‘executive’.  Worse, the public seem to expect representatives to execute!  The was budgetary decentralization evolved has not helped.  What began in 1974 as a ‘District Decentralized Budget’ where allocated funds were used under the direction of a district political authority, is now a Rs 15 million gift to each parliamentarian to be used for the most part at his/her discretion.  The truth is that honesty, competence and cognizance of overall national development thinking are largely absent in the decisions made by MPs with respect to the use of decentralized funds.  Even if this was not the case the fact remains that the authority to do so confers upon them an executive role.  Small wonder that each MP thinks he/she is a mini executive president, a yuvaraja or a regional lord!  

There are MPs of the ruling coalition who claim in private that they cannot go to their respective electorates because they haven’t been able to do anything for their voters.  They are not talking about decentralized funds and what can be done with them, but about helping voters in other ways: transfers, jobs and such.   The fault then lies as much with the people as with the MPs.  The people, in other words, expect their representatives to be executives and not law-makers.

Today, when there are elections, the candidates have ministerial aspirations first and foremost.  They are less interested in legislative functions.  

Here’s something that happened 23 years ago that illustrates the point.  In August 1994 when the People’s Alliance won the most number of seats and Chandrika Kumaratunga cobbled together a coalition that had a majority of one so a government could be formed, one man was peeved.  Jeyaraj Fernandopulle.  He got his supporters to protest.  They were livid that their political boss had been sidelined when the cabinet was formed.  

Whether Jeyaraj had worked harder for the party than someone else should have been immaterial when decisions on portfolios were made.  Whether his district or ethnicity or religious community was ‘under-represented’ is a non-issue because forming a cabinet is less about that kind of cabinet representation but getting the right people in the right executive slot. If every social group (caste, class, age, gender, region, party included in the coalition, religion, profession etc) is to be represented then the entire parliament excluding the Speaker would have to be given a cabinet portfolio or at least a Deputy Minister post and there would still be people who would feel ‘disenfranchised’!  

It is time to make arrangements to turn the Parliament and Parliamentarians into what they were meant to be, the supreme legislative body of the country made of people’s representatives dedicated to making laws.  

The role-confusion by willy-nilly gifting executive roles to secure parochial and short-term political objectives should be unravelled and sorted out because what’s done for purposes of political expedience quickly gets inscribed as cardinal elements of the political culture.  

One way to do this is to legislate the limits of ‘executive encroachment’ if you will; simply by writing into the constitution the ministerial subjects (Switzerland has 7, the USA has just 15, just to give perspective!).  Further, if national development is streamlined using the regional bodies (PCs and local government authorities) then the decentralized budgetary allocations should be channeled to such authorities and not individual MPs.  “Why replicate?”, is the simple question that will not have a reasonable answer and will therefore compel a more sensible approach to disbursement of funds.   

We began with the issue of power-separation.  Let’s end with it.  Let the boundaries be clear.  Let there be less confusion because blurring is an invitation for anarchy, with or without blood-letting, which in the final instance results in the people being cheated and politicians getting rich. 


Malinda Seneviratne is a freelance writer. Email: malindasenevi@gmail.comTwitter: malindasene
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