House with greater responsibilities

By Manjula FERNANDO

A distinguished political analyst and an expert on constitutional affairs Prof. Rajiva Wijesinha, MP was interviewed by the Sunday Observer on the hotly debated topic - constitutional reforms.He says 'we would do the best under a modified Executive Presidency based on the doctrine of the separation of powers but there should also be much more accountability for the President, and the Executive in general.' He voiced that the 17th amendments is a hasty and impractical bit of legislation, but agreed that there must be systems to prevent arbitrary appointments.

Q: The UPFA and the UNP leaders last week initiated a dialogue on constitutional changes. There had been positive comments from both sides on the topic since then. What is your take on this latest development?

A: I think it is very important to keep dialogues going, and I hope both sides will exchange their views in a positive spirit. I have seen some comments on the reforms made by the opposition, which suggest a desire to make political capital out of the discussions. That would be a mistake, since I think there needs to be full confidence on either side that both are looking for solutions, not their own benefit.

Q: There was a move by the Government to extend the two-term tenure of the Executive Presidency by another term. Is this still on the cards?

A: I do not know what was decided in the discussions, but it is clear that this is no longer seen as a priority. That was obviously not something on which consensus was going to be readily achieved.

Q: The main Opposition and the Government agreed to replace the Executive Presidency by an Executive Prime Minister that will be accountable to Parliament. How do you view this?

A: I have never understood what was meant by an Executive Prime Minister, and the term seems redundant for the simple reason that, if you have a President, or a Head of State, who does not have executive authority, the Prime Minister is obviously the executive head of the government.

This is what you find in India or the United Kingdom or Japan or Germany - though in that last place, a Prime Minister elected on the basis of a Parliamentary election is called Chancellor. Adding a redundant title does not make much sense.

Q: How many terms will this Executive PM have? Can the former Presidents be re-elected under the new constitution?

A: Obviously, if we are going back to a Westminster type model based on Parliamentary elections to decide on both the legislature and the executive, then there are no term limits. Equally, there can be no bars to those who have previously been the executive head of a government under another system maintaining that position under a new system which does not have term limits.

Q: The political observers say with the existing electoral system and an opposition as uncompromising as the UNP or the JVP, the country cannot do without an Executive President. Your comments?

A: I would not want to comment on the Opposition being intransigent, because such things change. However, I do believe that a system of proportional representation is essential, though obviously not the present system which is possibly the worst innovation introduced by President Jayewardene in an altogether perverse constitution. If you have a Parliament with constituencies, as I believe is essential, but with the constitution of Parliament finally reflecting proportionately the views of the electorate as a whole (this is what the German system provides), then I think you will need the Executive Presidency to continue.

My own view is that we should continue with the Executive Presidential system, but with modifications that make it more accountable to Parliament. I think we should also work towards a greater separation of powers, with the Cabinet being outside Parliament - though as in the French system people in Parliament could be selected - while the role of Members of Parliament, particularly those elected from constituencies, should be strengthened, with them having a creative role with regard to development in their constituencies.

Q: What will happen to the 13th and 17th amendments and the proposal to establish a Senate?

A: The proposal to establish a Senate based on provincial representation seems to me a reform that would help to resolve a lot of problems, and I certainly hope that will go through quickly. I believe that represents the most important part of what the President has said, and which most people and parties want, which is 13 plus.

I think there should be other adjustments made, so that devolution is based on the principle of subsidiarity. This means having effective layers of government at the appropriate level, without unnecessary duplication, but with the capacity to respond swiftly to people's needs as well as problems. Obviously we need to affirm the principle that any constitution promoting devolution contains, namely that national security should be the responsibility of the Centre. Equally we must make sure that neither the Centre, nor even the Province, hangs on to powers that prevent swift resolution of administrative issues, provided local decisions are made in accordance with principles agreed at the appropriate levels for policy-making and necessary coordination.

With regard to the 17th amendment, I have always felt that that was a hasty and impractical bit of legislation. However, I absolutely agree that there must be a system of preventing arbitrary appointments - that is even more essential in Sri Lanka, because many people ask for favours, and it is not easy to say no to friends when they know that you have absolute authority.

However, if they know that your choices are subject to ratification, they will be less pressing.

However, anybody that ratifies the decisions of the elected executive branch must have a distinct status. Under the Westminster system, it is a Head of State who has the authority derived from tradition, as in Britain or Japan, or else through having been elected by bodies representing the people as in India or Japan. Conversely, in America, which has a well thought out Executive Presidential system, it is the Senate, which represents the whole country. I would suggest therefore that such a Senate would be the best body to ratify or otherwise appointments made by an Executive President.

Q: The JVP says the constitutional proposals should be put forward for a public debate?

A: I am not sure what they mean by a public debate, because it is all too easy for a few people with extreme views to hijack such debates. However I agree that there must be transparency and time for open discussion about what is proposed. As you know, the Westminster system, to which for some strange reason all leftist parties in this country are devoted, does not encourage public debates but leaves much to the elected representatives of the people - though they are elected on a constituency basis, in which of course the party nominates the candidates.

Q: Do the Government and the Opposition have a road map to ensure the talks will not be a flop?

A: Again, I have no idea about that.

Q: In your opinion what is the best constitutional model for Sri Lanka?

A: As mentioned previously, I now feel we would do the best under a modified Executive Presidency based on the doctrine of the separation of powers, with an elected President able to select the heads of government ministries and agencies from amongst all suitable people.

This should of course be subject to ratification - with the power however to make temporary appointments to prevent arbitrary refusals to ratify, if such a situation arises. There should also be much more accountability for the President, and the Executive in general.

Parliament itself should be based on an electoral system that encourages greater responsibility, with mechanisms apart from the electoral system to encourage ties between members and the constituencies they represent. National List members should be involved in Committees on the lines of the Donoughmore Constitution committees, with encouragement also of consultations in the regions for such committees, instead of just in Colombo.

Devolution should be based on the principle of subsidiarity, and we should distinguish between administrative decision-making, which must be done as close as possible to the people such decisions affect, and policy outlines which need to come from higher levels.

We must also, in enhancing the role of the judiciary, ensure greater accountability, through insisting on performance assessments and limits as to the time that can be taken, and the increasing cost of justice. For this purpose, as well as improvement of our public service, we must ensure better training, and constant updating of both skills and reporting mechanisms.

Finally, we should enshrine both accountability and choice in our constitution, by emphasising both individual rights and concomitant responsibilities.

These should be based not only on justiciability, but on remedial mechanisms that include arbitration and mediation.