Monday Nov 25, 2024
Monday Nov 25, 2024
Thursday, 26 September 2019 00:54 - - {{hitsCtrl.values.hits}}
By Anura K. T. De Silva
A system of governance we all deserve
The question we need to ask is NOT if or who we should elect but how we should govern our nation.
When the model of government conceived by social and political philosopher Montesquieu had divided the political authority of the state into Executive, Legislative and Judicial powers, he asserted that the three powers must operate separately and independently as it was the key to liberty of its citizens who are asked to be governed. Furthermore, our nation has many times demonstrated to the world that any collusion among the three branches of government would be a recipe for disaster to its people.
Hence, we need to allocate power among those that make policy judgments (the Legislative), those that implement and propose new initiatives (the executive), and those that resolve disputes and render interpretations (the Judicial) as follows:
We also need to understand that possible tyranny will need to be avoided to ensure no one person or group comes to possess the power to make, enforce, and interpret the laws autocratically by diluting and separating powers in a central government. We also need to accept the reality that political abuse can be avoided only to an extent as governmental power is naturally “blended” or has a degree of overlapping for it to function effectively. With co-equal powers among the three branches in the government, a foolish law enacted by the Legislature can be vetoed by the president, but a pig-headed president can be overcome by a two-thirds majority of both the Legislature and the Judiciary. 
It is crucially important that we dilute the centralised powers of the three branches in the central government by devolving powers among the nine provinces, specifying that their governments be divided into similarly empowered Legislative, Executive and Judicial co-equal branches of governance. As a result, we will become a nation of “dual sovereigns” – to the central government and to the provincial government. The central government will be given specific responsibilities to coin money, raise armies, and regulate inter-province and foreign commerce, which should become few and clearly defined powers, while the powers in the provincial governments comparatively should become numerous and indefinite. This vertical division of authority will reflect the healthy variation and diversity of the citizens.
Coming from many lands, races, ethnicities, and perspectives, our dreams and aspirations can be different even when a level playing field is provided. One single, uniform view is seldom enough for all of us, and devolution of powers to the provinces will allow these different approaches to be tried with less imposition on others. Hence, our Constitution needs to envision unity where it is necessary for people to speak with one voice-for example, where our national security or trade interests are jeopardised – but allow countless voices to be heard on matters pertaining to the general welfare.
Most importantly, devolving power will provide less national wealth for a distant central government to misuse, giving incentives for the provincial governments to protect our liberties by checking on abuses in the central government and for governance to become more relevant to each province when decisions are made in proximity to the local citizens, communities and businesses as they impact more self-determining governments.
Therefore, devolution will provide greater freedoms and flexibilities at local levels, so provincial and local governments can work more effectively to improve public services for their respective areas rather than rely on the priorities in the central government. The outcome will be more effective, better targeted public services, greater growth and stronger partnerships between public, private and community leaders within each local area, highlighting the power of self-determination with more accountability and less cronyism.
What we fundamentally need is to redefine the roles of each branch of the government:
In case of offences or infractions of the laws by individual representatives or any branch of government, citizens will need to have the powers and mechanism to take essential measures to penalise or even remove representatives from holding office through the Judiciary.
|
With co-equal powers among the three branches in the government, a foolish law enacted by the Legislature can be vetoed by the president, but a pig-headed president can be overcome by a two-thirds majority of both the Legislature and the Judiciary – Pic by Shehan Gunasekara |
The World Bank defines good governance as the manner in which power is exercised in the management of a country’s economic and social resources for development. This includes not only the process by which governments are selected, monitored, and replaced, but also the capacity of the government to effectively formulate and implement sound policies, the respect of citizens, and the state of the institutions that govern economic and social interactions among them.
Therefore, we need to grant necessary powers to strengthen each branch within the laws of the country and as a co-equal branch among the other branches of government rather than with absolute power as “absolute power has proven to corrupt absolutely”. Unless we wish to corrupt a president with absolute or excessive powers, there is absolutely no reason for the president or anyone else to be held above the laws applicable to all citizens. If any elected representative wishes or needs to proceed beyond the constitution or laws of the country, they will need to come before the citizens (not only the Legislature) and present their case in terms of a referendum.
From where the nation stands today, we will need to further strengthen the roles in each branch of government by encouraging independent representatives in to the independent branches of government. To achieve such realisation, an Executive will need to be a non-political party candidate answerable to all people instead of a single political party. The same strength can be enhanced by electing representatives to the Legislature are elected by and remain loyal to their local constituents rather than to any political party or external entity.
In order to encourage independent candidates, we will need to introduce measures to prevent representatives from having to rely on campaign funds from political parties. Therefore, it would be economical in a nation such as ours for the government to grant adequate funds to campaign as independent candidates to represent small local electorates within tightly controlled elections. In order to minimise the required funding to campaign, electorates will be made smaller with more proximity to the people and the campaigning will be restricted to the public media with no harassment to public life.
Independent branch of the Chief Executive
I sincerely hope we can all agree that there needs to be ONE clearly declared Chief Executive in the government, like in any organisation, whether we call them the PM or the president. This will keep our current President and PM from fighting over power. The role of the Chief Executive is not to declare laws but to execute the laws that are already on the books. Therefore, in order to establish minimum of three branches of government with co-equal powers held independently, the CEO will need to be a representative independent role outside the Parliament and answerable to an independent Judiciary and to its citizens.
By the definition of a Chief Executive, the president will be responsible to propose and implement policies (not declare policies) declared by the Legislature while performing a number of different concurrent roles including (1) Chief of state, (2) Chief Executive, (3) Chief Administrator, (4) Chief Diplomat, (5) Commander in Chief, (6) Chief Legislator and (7) Chief Citizen.
It is also important that the Chief Executive be entrusted with the priority to serve and protect ALL CITIZENS rather than be distracted by political parties, religious, ethnic, racial or other predatory interest groups. The Chief Executive should be without intent to use the government to extract favours. There will always be groups willing to give more to the rulers as they will expect that the rulers in return will give more to them. Because of this inevitability of corruption, we need to ensure elected presidents are focused on national priorities and not on interest groups as a president elected by all citizens as an independent candidate must be equally answerable to ALL citizens.
Priorities targeted on segments of population need to evolve from the Legislature before they can be added to the priorities of the Executive. The fundamental mandate of the president should be to lift the human dignity of all citizens by developing a safe environment with opportunities for people to find their own success by enabling people to engage their entrepreneurial energies and capitalise on their own innate human potential within the laws of the country.
Hence, it is critical that the role of the president in Sri Lanka includes strategising and coordinating with all governmental departments to develop an environment within a common set of laws to enhance the national aspirations. Success in the office of the Chief Executive will be based on developing a well-functioning progressive society with dignity and fairness to all and realised abundance and liberty for all while leaving no one behind. The role of the Chief Executive is not for the faint at heart or for politicians who may mostly be skilled in gaining popularity votes by hook or by crook; the Chief Executive must be a competent individual with critical skills and not someone who can win a popularity contest.
As an example, a competent Chief Executive will need to concurrently ensure the fundamental rights of every citizen are protected, pay off the national debt, increase growth in the economy while prioritising social progress, and eliminate poverty all at the same time. Sometimes, the failure to perform one duty can lead to the failure in another area; therefore, the skills and experience of true leadership and management will be crucial for this role.
Among other responsibilities, the president within the office of the Executive will perform the critical core role of Chief Representative of the government with responsibilities to deliver the bottom as well as the top line of the national budget. Among other Executive responsibilities, the president as the commander-in-chief, will require approval from the Legislature to exercise military powers, incur government expenses only after obtaining approval for a national budget from the parliament, and as chief diplomat with powers to make treaties with other nations only after being subject to ratification by the Legislature.
The president as the Chief Administrator will be fully responsible and accountable to incur expenses to each item in the budget and perform all actions within the government with transparency to the public. The president will also act as the head of state, the chief public representative of the sovereign state, and function as the public face of the nation. The Chief Executive will be responsible to execute various policies and laws approved by the Legislature and is expected to perform a number of different concurrent roles. The president will elect his or her preferred cabinet of professionals and subject master experts (not politicians) in charge of clearly defined Ministries signified by the constitution.
As the head of the Executive branch of government, the president will function with equal power and oversight among the two other independent branches to make major national decisions within the laws granted by the Legislature. When necessary, the president will be authorised to have powers to make proposals and exercise Executive orders to push through policy changes during critical times (ex: emergencies), but the president will not be able to create new laws or appropriate funds from the treasury until the Legislature authorises them. Therefore, the powers and limitations of Executive orders will need to be declared in the Constitution, stating that the president “shall take care that the Laws be faithfully executed and report back within a pre-determined period of time to the Legislature”.
Independent branch of the Legislature
Currently, the Parliament acts like a disorderly and wilful board of directors while the general public, as the shareholders, are compelled to observe how no one is being charged for unlawful behaviour that was broadcast in broad daylight. It is vital that the representatives are elected from smaller electorates where the people will hold necessary power to not only elect but guide and recall their representatives rather than rely on the respective political parties.
When representatives are elected through political parties, loyalty to the political party becomes much greater than loyalty to the people for their own survival in spite of them being elected by the general public. Therefore, it is paramount that we build a Legislature mostly with independent representatives tightly knit to the people who elected them. As resources are a major concern for a candidate to be well-represented independently, the nation will find it more economical to constrain campaigning to shorter time spans and level the playing field by confining broadcasting of campaign materials to the public media. And the government should incentivise and promote the entrance of independent candidates through allocated governmental resources.
Such independent representatives will propose ideas directly beneficial to the electorate and its people, present independent views, and support policies in the parliament to protect and serve the people without conflicting allegiance to any agenda of a political party or party leadership.
Today, even though we call our Parliament a democracy, there is often only one opinion/perspective from the majority party leader on any bill in spite of 255 representatives of the people present in the Parliament. Opposing views are primarily from the minority party who often oppose for political partisan reasons and when they are unsuccessful, they usually lead to character assassinations and even revolts in the chambers.
The divisive nature of our Parliament has existed for the past 71 years, but it has not served the people; it has served the politicians personally or their political parties as a whole by weakening the democratic functioning of our Legislature. The Legislature needs to be represented mainly by independent representatives from smaller electorates rather than as representatives from political party mobs of majorities and minorities.
Furthermore, elected representatives need to be confined to legislating (to enact laws), have no access to the treasury, nor be able to hold Ministerial positions. Very clearly, Legislative representatives of the people are elected to legislate but not run our government with access to the national wealth. In addition, we need to open up the Legislature for the general public to introduce ideas/bills, speak on the bills in the Parliament they wish to change, or introduce policies and laws through the Legislature.
Independent branch of the Judiciary
The third branch of the government currently under the Ministry of Justice within the Parliament should be totally isolated from the Legislature and the Executive to stand independently while expanding its role not only to interpret the laws (traditional role) but also to administer the institutions of law and order and the court system (new role).
With devolution of powers to the provinces, the individual police stations will need to function under the purview of the Provincial Judiciaries while the centralised body of the police will overlook and support the provincial policing, establish strong integration among other police stations to share intelligence, and focus on national policing.
This initiative will also transform the police departments from bureaucracies to more professional departments who will be answerable directly to the local citizens. It is also important that the administrative arm of the Judiciary be expanded to include an Office of Public Legal Counsel (PLC) within each province to enable access to the general public to receive legal counsel against the government and as an avenue to prosecute the government on class actions. Therefore, the PLC can act as a true Attorney General – an office of the people.
(The writer can be reached via email at [email protected].)
