Distorted perspectives of governance

By Neville Ladduwahetty-May 21, 2015, 8:18 pm

The reason for the disenchantment with the Presidential system was because of the misguided
belief that the system provides opportunities for the Executive branch to engage in unilateral
activities independent of other branches of Government. This is incorrect. For instance, the
non-Executive branch of Government is expected to monitor and oversee Executive action. If
they DO NOT exercise their due responsibilities, the non-Executive branch should be held as
responsible and accountable for the excesses of Executive action as the Executive branch itself.
Therefore, effective governance works only when ALL branches of Government fulfill their
respective responsibilities.
The 19th Amendment is now part of Sri Lankas law thought it is considerably different from
the version originally presented to Parliament; the main thrust of the 19th Amendment was the
curtailment of the powers vested in the executive president by the 1978 Constitution. Despite
the fact that the final version did not reach the threshold intended, it has to be granted that
under the 19th Amendment the system of governance that was presidential is now somewhere
between a presidential system and a parliamentary system.
It is said that the need to abolish the Presidential system and replace it
with a Parliamentary system arose because of the perspective that the
presidential system vested unbridled executive power in a single individual.
This is a distorted perspective of the presidential system. The Sri Lankan
Constitution is based on the proposition that executive power of the people
is a collective responsibility of the president and the Cabinet of ministers
who in turn are collectively responsible to Parliament; an interpretation that
was underscored by the recent Supreme Court during its determination on
the 19th Amendment. Despite this clear and unambiguous interpretation
for senior ministers and members of civil society to make statements that
the 19th Amendment for the first time provides for the President and the
Cabinet of ministers to be responsible to the Parliament reflects ignorance
of facts because such joint responsibility has been a feature of the 1978
Constitution from Day One (Article 42).
The reason for this kind of disenchantment with the presidential system is
the misguided belief that the system provides opportunities for the

executive branch to act independently of other branches of government.

This is incorrect. For instance, the non-executive branch of government is
expected to monitor and oversee executive action. If they DO NOT exercise
their due responsibilities, the non-executive branch should be held as
responsible and accountable for the excesses of executive action as the
executive branch itself. Therefore, effective governance works only when
ALL branches of government fulfil their respective responsibilities.
SYSTEM FAILURE
Governance is all about how a society organises itself to manage its affairs.
Whatever the system, whether Presidential or Parliamentary, governments
are organised for two branches to manage the affairs of the society. This is
accomplished by arranging for one branch to execute policies and the other
branch to monitor and ensure that what is executed conforms to the stated
policies and is implemented efficiently. Under presidential systems, the two
branches are separate while in a parliamentary system both branches are
created from within the parliament. However, under either system it is the
effective operation of both branches namely, for the executive to execute
and the legislature to monitor what is being executed in addition to making
laws that make the system work.
The current preoccupation only with the executive branch has arisen from
a misunderstanding of how governance is supposed to work. If a section of
the elected representatives take on the assignment to execute policies it is
imperative that the remaining section (the non-executive) has to ensure
that the implementation of policies is carried out effectively and efficiently.
If one section fails to fulfil its responsibilities the system fails regardless of
whether the system is presidential or parliamentary. Therefore, instead of
focusing only on the executive it is time Sri Lanka placed equal emphasis
on the effectiveness of the non-executive branch of the government. For
instance, it was the ineffectiveness of the non-executive to monitor and
contain lapses in Law and Order and corruption that gave the executive
unrestrained opportunities for excesses. Dependence on self-discipline of
the executive is not advisable whether the system is presidential or
parliamentary.
The ineffectiveness of the non-executive branch is being witnessed even
under the current administration. The lapses on the part of the current
executive in regard to the Central Bank scam, the reappointment of a
former Chief Justice for 24 hours and the dismissal of another Chief Justice

in complete violation of constitutional procedures require the nonexecutive branch to intervene and oppose such arbitrary acts. Even the
revisions to the 19th Amendment were moved not by the majority in the
non-executive branch but by some in the periphery. If not for their
intervention, the 19th Amendment would have contained more
contradictions than it currently does. The consequence of non-intervention
is to sanction unfettered executive action. Since ineffectiveness of the nonexecutive is possible under presidential or parliamentary systems,
changing the system as currently being attempted reflects a flawed
understanding of governance.
GOVERNANCE THROUGH OVERSIGHT COMMITTEES
A study carried out by the Inter Parliamentary Union in 2007 of Oversight
Committees in 88 countries concluded that a suitable working definition of
Parliamentary Committees would be: "Review, monitoring and supervising
of government and public agencies including the implementation of policy
and legislation." This should be the primary function of the non-executive
branch of the government.
"Based on this definition the key functions established by the Inter
Parliamentary Union were:
* To direct and prevent abuse, arbitrary behaviour or illegal and
unconstitutional conduct on the part of government and public agencies. At
the core of this function is the protection and the rights and liberties of
citizens;
* To hold the government to account in respect of how the taxpayers
money is used. It detects waste within the machinery of government and
public agencies. This can improve the efficiency, economy and
effectiveness of government operations;
* To ensure that policies announced by the government and authorized by
parliament are actually delivered. This function includes monitoring the
achievement of goals set by legislation and the governments own
programmes;
* To improve the transparency of government operations and enhance
public trust in the government, which is itself a condition of effective policy

delivery".
(Tools for Parliament Oversight, Inter Parliamentary Union, 2007)
PROPOSED STRUCTURE
1. Oversight Committees should be Permanent Committees. Such
Committees should be formed by grouping together related government
ministries and agencies thereby ensuring that oversight functions are
carried out by related sectors.
2. Composition of each committee should be on the proportional basis of
majority party to minority parties in Parliament with a chairperson selected
on the basis of seniority by the majority party in Parliament and a deputy
chairperson selected on the basis of seniority from other parties in
Parliament for each committee. The benefits and privileges of the
chairperson and the deputy should be on par with that of a cabinet
minister and deputy minister to lend prestige and importance to the work
of oversight committees.
3. Oversight committees should be equipped with staff and required
resources to fulfill its objectives in respect of legislative and executive
action. The staff to assist the work of each committee should be both
permanent and consultative.
4. Each committee should have the authority to seek opinions and views of
persons both within and without the public sector, to examine documents,
papers and records of government agencies to ascertain administrative
and fiscal efficiencies and performance of all government agencies.
5. Meetings of Oversight Committees should be open to the public except
during the discussion of sensitive issues.
FUNCTIONS
1. Oversight functions in respect of Legislative action would mean
reviewing proposed Bills before Parliament and initiating Bills that would
arise in the process of reviewing ongoing Executive action.

2. Each committee should review ongoing Executive action in respect of

administrative and fiscal performance of established Government agencies
within its sector.
3. Recommending proposals to improve administrative and fiscal
performance of established government agencies.
4. Review of performance of projects and programmes in terms of
government commitments and ensure conformance to procedures in the
implementation of projects.
5. Evaluation of suitability and relevance of contemplated projects and
programmes including strategies for their implementation and costs and
benefits to intended beneficiaries.
6. The transparency of the process of review, monitoring and supervision
of government and public agencies including the implementation of policy
and legislation" should be such as to deter corruption and improve
administrative and fiscal efficiency and overall performance of the Public
Sector.
7. Each Oversight Committee is required to submit a quarterly report of its
activities to Parliament.
ALTERING PERSPECTIVES
Current perspectives of how government operates need to be altered to
ensure transparency and accountability whether the structure of
government is presidential or parliamentary. For instance, under the
current setup where the rump of the SLFP is in the Opposition and the rest
is with the UNP-led government party loyalty prevents the SLFP majority in
Parliament from holding the executive headed by a SLFP President
accountable for executive actions. Even under the former administration
the SLFP President could count on the SLFP-led majority in parliament to
support the agenda of the executive without question. Under these
circumstances it is natural for the non-executive to remain passive not
realising that in doing so they are condoning the transgressions of the
executive.
One way to hold executive accountable is to transform and empower

existing consultative committees into effective oversight committees as

proposed above.
The next step is to acknowledge that all elected representatives at all
levels have an equally vital role to play irrespective of whether they are in
the Executive or the non-Executive branches of the government. The
notion that the executive is the more prestigious of the two branches of
the government and, therefore, above the non-executive is flawed. The
opposite notion is equally flawed. All branches have an equally important
role to play and if one prevails over the other the system fails regardless of
whether the structure is presidential or parliamentary. Politicians and
members of civil society who are driven on changing the structure of
government are under the notion that the problem is in the system. The
truth however, is that it has less to do with the system but much more to
do with how it is organized.
CONCLUSIONS
A combination of several amendments initiated by a committed band of
Opposition members and the determination by the Supreme Court resulted
in bringing sense and sensibility to the 19th Amendment. The lesson from
this exercise is that without vigilance and reasoned intervention excesses
are inevitable. This is what happened during the former administration. A
combination of lack of transparency and accountability on the part of the
executive and apathy and accommodation on the part of the non-executive
branch of the government had permitted unwarranted excesses.
A correct understanding of how governments work would have made them
realise that both the executive and the non-executive are collectively
responsible and answerable for transgressions as it was under the former
administration.
The lesson that Sri Lanka should learn from the recent past is that the
interests of the people should not be made to depend on the self-discipline
of the executive. Instead, they are best served not by permitting one
branch to outperform another branch but by ensuring that the nonExecutive branch reviews, monitors and oversees executive actions
through oversight committees to ensure transparency and accountability of
the executive. It is through the collective action of the executive and the
non-executive that the interests of the people are best served.