1978 දී ආණ්ඩුක්රම ව්යවස්ථා විවාදයේදි ආචාර්ය එන්.එම්.පෙරෙරා මහතා විසින් කල කතාව ගැන කඩුල්ලෙන් ඊයේ කියෙව්වා. එම කතාව කාලීනව කොයිතරම් ගැලපෙන්වාද කියා සිතුණු නිසා මෙහි සටහන් කරමි.
මෙය කියවන ඔබට මතක් කල යුතු දෙයක් තිබෙනවා. එක්සත් ජාතික පක්ෂයේ ජේ. ආර්.ජයවර්ධන මහතාට එරෙහිව ලංකා සමසමාජ පක්ෂයේ මන්ත්රි කෙනෙක් කල කතාවකි මෙය. ලංකා සමසමාජ පක්ෂය එක්සත් ජනතා නිදහස් සංධානයේ කොටස් කරුවෙකි.
The Anglo-Saxon Parliamentary system and the American Presidential system are two alternative forms of Government. The two cannot be mixed and the hotch-potch that he has presented is not workable, as I shall presently show. In fairness to his own thought and in fairness to the country he should have drafted an entirely new Constitution to replace the present one based on the American pattern. He could have, as the previous Government did, transformed the present legislature into a Constituent Assembly placed all the aspects of the new Constitution before the Assembly and the people of the country and finally enacted it as a new Constitution of Sri Lanka.
Notwithstanding his protest, the manner in which this Bill has been rushed through Parliament makes us a little suspicious. A Constitution which has been incubating in his mid for 11 years cannot carry the label of urgency. In any case, what is there so urgent about amending a Constitution? After all, constitutional amendments are potent not for a year or two but for all time. I can think of no country with a written Constitution that enables Constitutional amendments to be carried through in the headlong manner that he has done. Most constitutional amendments take years to fructify and some countries provide even for a referendum before such an amendment is made effective. There may be many in this country who hold different views on the Presidential system of Government. Why should they be deprived of the right of expressing their different viewpoints to the legislature and to the people of the country and urge that full consideration and weight be given their views?
This statement of the Prime Minister is tantamount to a rejection of Parliamentary Government for developing countries. It is necessary to remind him that this is the basis on which most of the newly-independent countries in the Continent of Africa have proceeded. Kenya, Tanzania, Zambia, Uganda, Nigeria, Zaire, Malawi etc. have plunged for one party rule. They have emasculated the whole conception of Parliamentary democracy on the ground that developing countries need stable governments to carry out the task of economic development.
The net result of this one party rule and the stamping out of opposition in terms of political degeneracy, economic mismanagement and downright corruption has to be seen to be believed. Tribal rivalries have rendered this intolerable situation inevitable. Does not Mr. J.R. Jayewardene by implication express this sub-conscious preference for a one party dictatorship in Sri Lanka? In the history of democracy, there are innumerable occasions when the people have failed to give a clear mandate to any one party or a coalition of parties.
People themselves may be sharply divided on the various issues before the country or the issues may not be so clear-cut. If one accepts the sovereignty of the people, then one must also be reconciled to the infirmities of this sovereignty. If we have faith in universal franchise, if we have faith in the ultimate rationality of the people, then we must also be prepared to accept the verdict of the people which sometimes may be given haltingly and without conclusiveness. Can we pledge our faith in democracy and yet refuse to accept its verdict when it does not suit us?
Is this not the stand taken by Mr. Jayewardene when he says that in a developing country, the executive should be stable and not depend purely on the whims and fancies of the N.S.A. Every Parliamentarian is a creature of the whims and fancies of the people in the constituencies. We are not having perfect people in the world. We accept democracy with all the weaknesses and the infirmities of the people and we must abide with them until such time as we can educate them to the contrary. Indeed this is the great merit of democracy. It is an educative process. Humanity has not progressed in a smooth upward climb. Undulating waves have carried humanity through ups and downs slowly progressing to higher levels.
Indeed for a developing country Sri Lanka has shown a stability in her democratic institutions which many other countries in the developed world might profit by emulating. With barely 50 years of experience in the use of the universal franchise, our people have shown a maturity that can only be considered unrivalled in the world.
Parliamentary democracy proper began in 1947 and the country gave the UNP a clear mandate which lasted till 1956. If there was instability within that period, it was due to the petty jealousies of those at the helm of affairs in that party. In 1956, the people again gave a clear mandate to Mr. Bandaranaike and his Freedom Party.
A short period of instability was inevitable with the assassination of Mr. Bandaranaike which threw the whole country temporarily into a period of uncertainty and bewilderment. The people recovered sufficiently to give a clear mandate to Mrs. Bandaranaike in July, 1960 and she governed this country till March, 1965. Mr. Jayewardene is bemoaning the fact that Mrs. Bandaranaike had to dissolve Parliament 6 months before her due date, (he is wrong when he says that it was 1 1/2 years before the due date) and provides, this as a clear indication of instability. A strange statement for a man who created this instability to make.
If he felt so keenly that it was wrong to oust a Government before its time then he could have well advised his leader to hold his hand instead of weaning away by dubious methods some of the followers of the Freedom Party and engineering a defeat of the Government. The 1965 elections gave a clear mandate to Mr. Dudley Senanayake and the coalition which he formed. In 1970 the country ousted the UNP and gave an unmistakable majority to Mrs. Bandaranaike to run a stable Government and now in 1977 the UNP has had an unprecedented majority. How can then we talk about unstable governments? Surely, this is not a record which any democracy can be ashamed of. This country has shown a remarkable capacity to change its governments and also provide clear majorities for a party in order to run a stable government. One cannot help feeling that Mr. Jayewardene is making a special pleading with an “Arriere pensee”.
We look in vain for any substantial and valid reason why Mr. J.R. Jayewardene wishes to implant an entirely new system of government in this country. What is this strange fascination for a Presidential system? Let us look a little more closely at the system that exists in the United States.
If we delve into the history of the Presidential form of government, one singular fact emerges. The founding fathers of the American Constitution devised a system under which they thought the party system could not take root or flourish. They had enough of the Party system that existed in the United Kingdom and the very mention of parties was anathema to them. So they hammered out the institutions of government with the deliberate aim of discouraging parties and they fondly believed that the President with executive powers can achieve this objective. They were also misled into accepting the wrongly conceived Montesquion dictum of the separation of powers. The adoption of this principle would further strengthen their desire for a taboo of the party system.
Montesquieu, of course, misunderstood the working of the British system and wrongly attributed the success of that system to a separation of the three key powers: the legislature, the executive and the judiciary. Actually, there was no such separation. The executive was part of the legislature and most of the superior judges were appointed by the executive. Any kind of strict compartmentalising was inconceivable. Proceeding on this wrong thesis the founding fathers of the American Constitution separated the legislature and the executive completely.
Neither the President nor the members of the Cabinet were members of the legislature. Except for delivering a message to the Congress either in person or by communication he had no place in the legislature at all.
The judiciary, however cannot be completely kept outside of the control of the executive. The superior judges were appointed by the President. The founders provided certain checks and balances. All higher appointments have to be approved by Senate. The treaties with foreign countries were a subject of the executive but they cannot be enforced without the sanction of the Senate.
Various Bills can originate either with the President or in the Standing Committees of the Congress so that the executive also has a hand in the fashioning of the legislation.
The executive may well refuse to sign a measure adopted by the Congress, but then the executive can be over-ridden by a two-third majority. In practice, therefore, this aloofness and a water-tight separateness never really existed. Indeed if such rigidity had prevailed, the Constitution would have broken down as unworkable.
Paradoxical as it may sound the American Constitution devised to prevent the growth of the party system became viable and workable because of the growth of this very same party system which the founding fathers deplored. Much as they deplored the political parties, they could not prevent their factors slow sprouting and eventually burgeoning into powerful factors in the American political set-up. The country got neatly divided into Democrats and Republicans.
This dichotomy ran through every aspect of political life in every state and not merely the central legislature. State legislatures were elected for two years and for a long time all officials were appointed by the party in power in each state and they went out of office when the party lost its hold on the state. Even to date, judicial officers are elected by the people and can be recalled and ousted by the people. Most of these actions are carried out in terms of party loyalty and in terms of party alignments.
The American system of Government has now worked for over 200 years. Over this long period of two centuries, traditions hallowed by custom have been built and their own peculiar constitutional atmosphere has been pervading this country. Presidential elections are preceded by the Primaries. Unique gatherings which are at once tamashas as well as decisive political gatherings.
From Chile at the Southern most tip of that Continent to Nicaragua in the North, the innumerable countries that dot the Continent have with unfailing regularity alternated between their short lived Presidents and longer lived military or other dictatorships. We have an example of this in the Philippines. There President Marcos is ruling with an iron fist under conditions of martial law.
One need not be surprised at these developments. The Presidential system tends itself so neatly to dictatorial tendencies. The President once elected tastes the fruit of virtual unlimited power and finds it sweet and agreeable. There are few who can resist the temptation to continue tasting the fruit for ever.
In the face of this experience why are we floating gaily to embrace an unaccustomed constitutional model? The experience of other countries bashed about by the innumerable snags in the Presidential form, we would be foolish to ignore. Coup d’etat has followed coup d’etat in these countries. And stagnation and poverty have been the hapless heritage of the masses in these countries. Are we blindly to embark into this doubtful venture and throw away 50 years of democratic parliamentarianism which with all its failings have provided a measure of stability and progress? We have certainly avoided the violent upheavals that other Presidential governments, except the United States, have witnessed.
What precisely are the changes Mr. Jaywardene intends to introduce? All the details have not been worked out. One gathers that he proposes to discuss with all parties both in and out of Parliament the details or the proposals he has in mind. One fundamental change he has set out in the bill placed before Parliament. According to this Mr. Jayewardene will become the President of the Republic. He will not be a mere constitutional head as the existing President is. He will be the executive head of Sri Lanka. He will in short be a President-cum-Prime Minister both rolled into one. Future Presidents should be directly elected by the people and he will not be a member of the House of Representatives.
The present Prime Minister will cease to be a MP once elected to the post of President and future Presidents will never step into Parliament as a member of the House. He presides over the meetings of the Cabinet. The Prime Minister and the Cabinet are appointed by him including the non-Cabinet Ministers. He has however, taken the precaution of stating that he must choose as Prime Minister one whom he thinks commands a majority in the House. It is stated that he has a right of audience in the Assembly.
Let us examine this proposal that he has made. First of all, he seems to have spoken somewhat slightingly about the constitutional head particularly because he seems to be the nominee of the Prime Minister.
“What is the use of such a Head of the State? ‘says he with all the expense involved if he has only to carry out the orders of the Prime Minister. What purpose does he serve? If as the Sinhalese nomenclature goes, he is the leader of the people, he should be in a position to lead the people and not be subject to the whims and fancies of the Prime Minister who can remove him at will although he exists for four years. What is in a name? And if he is objecting to the method of election that is also easily solved’. But one presumes that Mr. J. R. Jayewardene is concerned with the basic principle involved.
Should this country have a constitutional head such as we have had definitely since 1948 and partially so since 1931 or shall we follow the pattern of the United States which has been copied to some extent by chance and have a President, who is both the constitutional head as well as the executive head of the country.
One presumes that Mr. Jayewardene is fairly familiar than the institution known as a constitutional head. All countries which have adopted the Anglo-Saxon pattern of parliamentary democracy following the British model are adorned by constitutional Presidents or Governors-General. The exceptions are some of the newly independent countries in the Continent of South Africa where one-party rule obtains. We do not think that any constitutional experts will agree with Mr. Jayewardene that constitutional heads of states are a superfluity, that they serve no purpose, and countries are better off without them.
It will be difficult to visualise the proper functioning of parliamentary democracy based on the Anglo-Saxon model with a multi-party system without a constitutional head. A Constitution of a country must have checks and balances if it is to function properly taking to account the diversities in the country eventuating in the highest common factor of agreement. A Constitutional head provides this balancing factor. A Constitution is as good as it works. Nobody should know this better than Mr. J.R. Jayewardene. One is reluctant to believe that Mr. Jayawardene has a low opinion of the Heads of State as part and parcel of the Constitutions of the United Kingdom, Canada, Australia, India etc. And his enthusiasm as a sponsor of the new model should not reduce him to belittling the usefulness of an institution which is a vital functioning element in the Constitutions of other countries.
In terms of the Bill, the appointment of the President is for six years. Mr. Jayewardene will become the President soon after the Bill becomes law. Broadly, therefore, he should continue in office for six years from that date. On the assumption that the present Parliament will continue for at the most 6 years and fresh elections held shortly after that the elections for the President would not coincide with the elections to the General Assembly.
Indeed, there can be fair time difference between the elections for the two institutions. One can, therefore, visualize a situation where two different political complexions can prevail in the two bodies. A left-oriented National Assembly can well confront right-inclined President. This can be the beginning of a continuing and unceasing conflict. In terms of the new Bill, the President appoints the Prime Minister from among the Members of the National State Assembly. He must choose one who he thinks commands a majority in the House. With a left majority in the House, he will be obliged to choose a left Prime Minister. There is no stipulation as to the selection of the other Ministers. Can he choose the other Ministers from the other minority parties in Parliament?
Or is he obliged to consult with the Prime Minister and choose only as Ministers those recommended by the Prime Minister from his own party? Let us take note of the fact that Section 14 of the new Bill gives the power to the President “to determine the number of Ministers of the Cabinet of Ministers and the Ministries and the assignment of subjects and functions to such Ministers. This gives him unlimited power to choose the men he wants. There are no restrictions imposed on his power and there are no traditions or customs sanctified by years of experience to hold him to any particular line of conduct and since he presides over the Cabinet he would like to have Ministers on whom he can depend.
Let us examine this a little further. Since the President is the executive head performing all the functions and laying down the policy for the Government he will usurp all the functions and the powers performed by the present Prime Minister under the present Constitution. The Prime Minister under the new dispensation will then be reduced to a cypher. He will be no better than any other Ministers in the Cabinet carrying out the administrative tasks appertaining to the departments under his charge.
Let us also take note of the fact that the President has the power to assign to himself any subject or function which he chooses to take over. He is not only the residuary legatee of Ministerial functions. He can at will emasculate or remove any function already allotted to the Prime Minister or to any other Ministers. Then the President becomes to that extent a Minister in charge of the functions so assigned. In this complicated situation, what happens to the left majority in the House supporting a left Prime Minister who is saddled with a President sponsoring an opposite policy in conflict with the declared policy of a majority in the Parliament? How is this conflict to be resolved? Assuredly, the majority in the Assembly obliged to a particular policy before the country at the general election on the basis on which it has secured a majority cannot give way and compromise its position. Will that President be prepared to swallow his pride and foreswear his convictions adumbrated in his own declared policy when he assumed office? If neither is prepared to give way, there will be a deadlock. The whole governmental machinery will come to a standstill.
If Parliament has a two-third majority against the President the solution can be found by removing the President by a two-third vote of the National State Assembly. This is provided for. This is unlikely in the future if proportional representation is brought into existence as we shall see. If the Assembly is having a majority against the President it will refuse to sanction money to carry out the administration and the President in turn would refuse to certify as law any measures passed by Parliament.
Before many months are up, a disillusioned and frustrated population will make short shrift of Parliament. It can well be the preclude to a Fascist Government. Is this what we are slowly inching towards?
This ideological basis is common ground to both parties. Differences arise in the methods of solving day-to-day problems within the framework of capitalist ideology. Only nuances separate the two parties. It is not, therefore, unusual for a Democratic President to utilize the unstinted services of key Republicans and their loyalty to the Government is never questioned. The reverse process of Republican Presidents utilizing Democrats is also quite common.
The UNP with 1.3 million votes more than the SLFP has gathered in 140 seats. Clearly this seat distribution does not mirror the true political configuration in the country. On the other hand, proportional representation will have the opposite effect also. It will make it very difficult for any one party to obtain the kind of landslide victories that the SLFP in 1970 and the UNP in 1977 got.
This means in point of fact that it is most unlikely that any Parliament in the future will have a majority of 2/3 in order to remove a President who is unacceptable to the House because he peddles a different policy to that of the majority of the House. In other words the resolution of deadlocks such as we have indicated also will become almost impossible unless either the Assembly or the President or both are prepared to compromise on their political principles.
If neither party is prepared to yield ground, the Constitution might as well be scrapped. It will be unworkable. The whole country sick of Parliamentary democracy will turn to alternative forms of Government such as Fascism. It is a pity that Mr. Jayewardene has ceased to think of the future. The present Parliament may well avoid the kind of deacklock that I have prognosticated but the next Parliament will not. We would be guilty of an unforgivable crime if in fashioning a Constitution for this country we become obsessed by the advantages we can reap by the present concatenation of favourable circumstances.
It is wrong to presume that the antagonism between the President and the Parliament will spring only from the political complexions of the two bodies diverge. This is not the experience of the United States where the Presidential system continues to function albeit with cracks and groans. The tendency over the years is for the legislature to become suspicious of the power welded by the President and his entourage. President Carter is finding this to his cost. Mr. Jayewardene thinks that he has improved on the institutional arrangements in both the United States and France by providing for a Cabinet chosen from among the members of the legislature and removable by the legislature.
No member of the American Cabinet has access to the legislature except through the Standing Committees, of it more anon. By his new device, has Mr. Jayewardene improved the position? The antagonism between the Prime Minister and the President is likely to be increased. A strong Prime Minister is not likely to be subservient and play subordinate role in the government of the country.
The President will find it extremely difficult to get his policy carried out. The President as Mr. Jayewardene points out is elected by the people not on personal grounds but on the basis of a policy that he intends to carry out as the leader of the people. The Prime Minister can equally well claim to the leadership of the people and can with equal justice assert that he has a mandate from the people to carry out the policy of his Party which has received the sanction of the people. Who is to prevail finally and which policy is to prevail? These are unresolvable problems which will end in the discrediting of democracy itself. As I have adverted earlier on this hotch-potch of a Constitution will not work.
Can the dissolution of Parliament resolve a deadlock such as we have envisaged? We have already pointed out that the President is there for six years and is unlikely to be removed because a 2/3 majority will not be forthcoming easily. But presumably the Prime Minister if rejected by the House can ask for a dissolution of Parliament unless a President thinks an alternative Government is possible. Where the divergence is on a matter of policy because the political complexions are different an appeal to the Electorate may not resolve anything at all. The people that elected the majority party may well continue to endorse that policy. If so, the deadlock cannot be broken unless the President himself decides to climb down.
One of the unredeeming features of this new set-up is the diffusion of responsibility among those at the helm of affairs. Under the present Constitution, the Prime Minister and the party in power are fairly and squarely held responsible for the acts of omission and commission while they were in office. They cannot shake it off and put the sins on other individuals or subordinates. Under the new dispensation of Mr. Jayewardene, the President can very well blame the legislature for any vacillations, procrastinations or omissions. The legislature in turn can accuse the President as the head of the executive of a failure to carry out efficiently and effectively measures passed by the legislative body.
The Ministers can very well shield behind the absence of a policy directive by the head of the executive. This diffusion of responsibility will make it more cumbersome and uncertain where the masses of the country have to register their verdict on the performance of the Government. If a parliamentary democracy is to work satisfactorily, the responsibility of the governors must be direct, clear and precise. If the institutions are so fashioned that responsibility is vague and unnamed and prevarications become plentifully easy, then the fabric of democracy itself will be seriously undermined.
Mr. Jayewardene is wrong in his assertion that the constitutional amendment he has advanced do not affect the sovereignty of the people. It is only partially true. This new Constitution will erode into the sovereignty of the people. I do not think it is constitutionally possible to distribute the sovereignty of the people through a number of institutions. Section 4 of the present Constitution categorically states: “That the sovereignty of the people is exercised through a National State Assembly of elected representatives of the people”. In other words, the sovereignty of the people is delegated from time to time to those chosen by the people to exercise this sovereignty on their behalf.
By including the President as a separate entity who shares the exercise of the sovereignty of the people, he has striven to dismember this sovereignty. It cannot be shared by different people at different times. The people cannot devolve their sovereignty on the legislature as well as the President because the two are not on a level. The President in this situation carries a superiority which vitiates the concept of sovereignty because the sovereignty cannot be developed at different levels. The devolution of power by the people must be on the basis of equality. In the exercise of that power, differences can arise but the distribution of power must be on an even basis.
We have already stated that what Mr. J. R. Jayewardene has conceived is a mixture of the Presidential-cum-Parliamentary system. It is a mixture that does not mix. Presidential system carries with it an entirely different internal legislative structure. The main burden of Parliamentary work falls on the permanent committees also called Standing Committees.
There are as many committees as there are important subjects. These are the bodies that initiate legislation. Ministers can only sponsor legislation through these committees. They have the power to make or mar. They can kill legislation by just pushing them aside or pigeon-holing them. The chairman of these committees are, therefore, men who wield considerable power and influence. The Speaker of the House, the Floor Leader and the Senate Majority Leader are the key powerful men in the Congress. From the point of view of enacting legislation, they are much more powerful than any other Ministers of the Presidential Cabinet. The Congressional work is, therefore, centred in these committees. All the discussions and all the oratorical triumphs are in these committees. The plenum debates are scrappy, irrelevant. There are many speeches adorning Handsards or the Congressional Record even though they have never been delivered. They are with the consent of the House entered in the Record as delivered.
The life and soul of the Congress are in the Committees. They are not merely instruments for legislation but much more important they are investigating bodies. They have the power to summon the Ministers as well as the Heads of Departments or any official of the Department. They cross-examine; they beat and badger Ministers and officials in a manner inconceivable under the Anglo-Saxon system. They grill them into submission. This is part of the expression of the legislative superiority-complex vis-a-vis the executive. This is a continuous process. This is not confined to the occasion when a Minister pleads for legislation which he has in mind. The departments under a Minister can be the subject of continuous investigation by the appropriate Standing Committees.
To carry out their purpose, these Committees are well equipped with men and material. In addition to these Standing Committees the Congress is teeming with Select Committees investigating all manner of topics. These special committees run into a hundred or more. The most famous of which was the committee that investigated the conduct of President Nixon. They are not respecters of persons and they cover every activity of the Government.
The Senate, the second Chamber of the Congress wields power which does not belong to the House of Representatives. All high officials, heads of departments, ambassadorial appointments, judges of the High Court can only be appointed with the approval of the Senate. This is not a formality. It is a searching inquiry not merely into the public life of the person nominated by the President. His private life is dragged into the limelight. It is a trying experience for the doughtiest public men. Mr. Rockefeller had to face the gauntlet of a torrid examination over his financial transactions with Kissinger when he came up as the Vice-President nominee. Mr. Lance has learnt to his bitter cost that an earlier approval did not immunise him from subsequent devastating probes into his earlier financial transactions.
Can we visualise this type of committee system being planted into the Parliamentary set-up we have in this country? The American system has grown over 200 years to reach the present stage as a powerful investigating complex without which the Presidential system of Government can deteriorate into an irresponsible bureaucratic machine. The system of Advisory Committees Mr. Jayewardene is thinking of will not serve any purpose. These decisions are not mandatory on Ministers. The initiative still lies with the Ministers to introduce or not to introduce legislation. Similarly, the institution of an all-parties committee to vet high appointments would be a camouflage behind which Ministers, can cover up questionable nominees. Will such a committee be given power to reject a nominee of Government or will it be in a position to probe into the private lives of the nominees concerned? It looks very much as if Mr. J. R. Jayewardene has not made a deep study of the implications of the Presidential system.
Mr. Jayewardene’s new dispensation has created a piquant situation. Under the existing Standing Orders of the House the President is immune from any criticism whatsoever. He cannot be brought into debate either directly or indirectly. His conduct cannot be the subject of any discussion. In the new set-up can the President enjoy the same immunity?
He is the originator of policy. Various measures are introduced in compliance with the policy that he has adumbrated. Can a criticism of that policy be separated from any animadversions on the author or sponsor of that policy? The more so if there is a divergence in the policy formulation between the President and the Prime Minister. There can well be a situation when the Prime Minister will act in defiance of the policy of the President owing to ideological differences. The President can be the subject of strong criticism by a majority of the House. Yet, since he is outside the House he cannot defend himself. This is not an edifying picture.
From the foregoing analysis, it should be abundantly clear that this constitutional change that is being introduced by Mr. J.R. Jayewardene is illconceived and inapplicable to the political situation in this country.
The sudden transplanting of an entirely new system of Government is fraught with danger to the stability of our institutions built up over nearly half a century of political experience. We need refer only to the manner in which he has removed the declaration of emergency and the process of emergency rule from the purview and control of the legislature to realise how slowly we are drifting to the abyss of dictatorial government.
It is said to think that Mr. J. R. Jayewardene should have rushed through this vital change in the Constitution without a full and proper deliberation by all sections of the people of this country. I can only hope that even at this late hour, wiser counsel will prevail. And Constitutional changes should be made the subject of more prolonged and profounder deliberations.