10 February 2020

Wither ‘Separation of Powers’?

President Gotabaya Rajapaksa’s Independence Day speech was widely applauded. Presidents usually deliver decent enough speeches on such occasions. In this case, the word resonates with initiatives, work done and general work ethic of the president. Easy enough when it’s still ‘early days’ in his term.  

There was one very interesting and even controversial observation in his speech. He said, ‘I am committed to working towards fulfilling the needs of the people of this country.’ Adding that this was his ‘responsibility and duty,’ the President stated, ‘I do not envisage public officials, lawmakers or the judiciary to impede my implementing this commitment.’

This can be read in various ways. It is, at face value, an ominous warning, couched in polite language. On the one hand he has a mandate to deliver on the vision expressed in his manifesto. He could have worded it in a different way, perhaps. For example, ‘I expect and solicit the support of public officials, lawmakers and the judiciary in the matter of implementing what I was elected for.’ He didn’t. On the other hand, there’s a context in which such statements are made. It’s not a pretty set of circumstances. He didn’t detail it and maybe he should have, but neither is it a mystery.  

The lethargy, incompetence and corruption among officials is well known. Not all, some, for this country has survived so many calamities largely due to the thousands of committed, competent and selfless public officials, from the humble Grama Niladhari to the Divisional Secretary, the foot soldier to the General, the clerk to the ministerial secretary. The errant officials, however, can wreck all the good work and they have. There’s foot-dragging, pandering to arrogant and self-serving politicians and such which could and have subverted well thought out strategies to improve the life chances of the people. The President knows this. We know this. 

The legislative. Need we even talk about what it does and does not do? This particular lot have lost the mandate to make laws or rather the majority have considering two devastating electoral defeats suffered by their party (local government elections in 2018) and party’s presidential candidate (presidential election 2019) respectively. As for the rest, the very fact that almost every MP voted for the absolutely flawed 19th Amendment to the Constitution demonstrates irresponsibility and incompetence. Therefore, asking them ‘not to impede’ is not entirely out of order. Over and above all this, the vast majority of MPs have held ministerial posts. Take performance and we can talk about it in the breach. Take integrity and it’s the same story. 

The judiciary. We didn’t need Ranjan Ramanayake’s tapes to know what’s what with the judiciary. Again, it’s not all, but at least some. Nagananda Kodituwakku has exposed corruption at the highest levels of the judiciary. 

Consequently, the President’s ‘warning’ can be understood. It’s almost as though he is saying ‘උදව් නෙකෙරුවාට කමක් නැහැ...වද දෙන්න එපා’ (udau nekeruvaata kamak nehe….vada denna epa, or ‘It is ok if you don’t want to help, just don’t throw spanners in the wheels’). 

On the other hand, the statement can be interpreted as a dismissal of the concept ‘separation of powers’ between the executive, legislative and judicial branches of the state. Institution are not perfect, but the ones flagged by the President do have glaring imperfections. The point is, if there are institutional and systemic flaws, it is necessary to point them out. There’s nothing wrong in subsequently requesting or even demanding that plans are not wrecked. However, that is not enough. Sooner rather than later the necessary corrections have to be made. If everything can be reduced to executive whim, then that’s a tool that can work AND can be made to work for the detriment of the people. 

In short, we can argue that separation of powers in name is just not enough. We can go further and say that separated powers peopled by the corrupt and incompetent are as unwholesome. It is this unwholesome institutional and systemic environment in which things have to be done or rather things tend to get derailed. 

The President could have qualified his statement or worded it differently. Didn’t happen. The context makes it forgivable, but a citizenry that makes a habit of citing context and playing relative merits essentially enhance vulnerability. 

It comes down to fixing things and not skirting issues. Cutting corners is a bad habit. Appealing to intelligence and good will is not necessarily a bad thing, but if everything is dependent on such things, it is dangerous. Bad precedents don’t make for great hope about what could happen. People come and go. The decent will, while they can, get away with ‘goodwill,’ those who are not will zero in on the chinks and wade into edifices for personal gain. 

A good example is the Financial Crimes Investigation Division (FCID). The argument for the FCID was that the regular process of the law was either slow or inefficient or corrupt. Fine. So you need a special institution to handle certain kinds of cases. Of course it turned out to be a grand kangaroo court but that’s a different matter. Even if such a body was necessary, the very necessity demands that it should be removed, i.e. the necessity should be removed. This simply means reforms in the law enforcement apparatus. It means reforming the judiciary. The previous regime showed absolutely no interest in such an exercise. 

Now that’s where Gotabaya Rajapaksa could go wrong. He has to do better than say ‘hey guys, help me out!’ Even if help was forthcoming her should not presume too much. 

Well, there’s a hitch here. He is President but he has to do his work in a given institutional arrangement that has been scarred politically by his predecessors and the parties they belonged to. Certain reforms require legislative support. It is the Opposition, being mandate-less notwithstanding, that holds the parliamentary numbers. The flawed 19th Amendment put in place a politician-heavy and UNP-favoring ‘independent’ institutions which happily buttressed the politicization of appointments. The people they ‘put in place’ are still in place. Doesn’t make things easy for the President.  

An election would change all that, but that’s not enough.  A Parliament which is made of a large number (at least two-thirds) of men and women of integrity might do the trick. The electoral system doesn’t make it easy for any political coalition to secure a two-thirds majority, but the 17th, 18th and 19th Amendments demonstrated that the numbers can be obtained under certain special circumstances.

IF the President wants a system that works and which doesn’t force him to come up with statements such as the one we are discussing here, then a two-thirds majority would be useful. Here again, there’s no guarantee that a party enjoying such a majority would do good or even do only good. History shows that when the numbers are right, laws made are typically partisan. However if the proposal is decent, wholesome and makes for more robust and effective systems that stump the corrupt and devious, then a parliament made of good people capable of seeing beyond party and election, could be a great source of strength: to the President, if he is on the right track and to the people in the event that the President’s proposition is at odds with the interests of the people. 

It would be great if the judiciary, official and the legislature operate in a manner that complements the good work initiated or envisaged by the President. It would be good if these sectors operate to stop him when he could err. It is much better for the institutions themselves to be reformed in ways that ensure they are peopled by men and women who have integrity, are effective and  courageous. In such an eventuality, President Gotabaya Rajapaksa or indeed his successors, would not have to ‘appeal’ to the ‘better senses’ of individuals in various sectors.  Simply, we would have separation of powers and we would have separated powers that make for effective representation, better government and an overall improvement in the lives of the citizenry.

This article was first published in the SUNDAY MORNING [February 9, 2020]