Senior Ministers :

An opportunity for a new path of governance

By Prof. Rajiva WIJESINGHE

Thirty years ago, Chanaka Amaratunga proposed the establishment of a Council for Liberal Democracy (CLD). I was not enthused by the idea, because it struck me as yet another stratagem of President J. R. Jayewardene, in his cynical destruction of liberalism as well as democracy.

Chanaka was in those days a devoted member of the United National Party, and he told me that the President had encouraged the setting up of the CLD. His view was that Jayewardene was a liberal democrat at heart, but this was not true of all members of his government; the CLD would be an instrument to encourage liberal thinking which would assist Jayewardene to overcome contrary views.

I had the previous year seen the enormity of his viciousness, when he stripped Mrs. Bandaranaike of her Civic Rights. I had also noted his ruthless tinkering with his own Constitution, as when most recently he had tried to have a second member for the Kalawana seat.

Forgotten

That story will bear retelling, for I realised recently, listening to the Opposition in Parliament, old warhorses from the 1977 Parliament such as Ranil Wickremesinghe and John Amaratunga inveighing against the appointment of Senior Ministers, how much even of recent history has been forgotten. And it is also possible that I misjudged J R Jayewardene, in that it was precisely 30 years ago, about the time that Chanaka mooted the idea of a Council for Liberal Democracy, that Jayewardene retreated from a nasty initiative, for the only time in his period of power.

On January 15th 1981, Abeyratne Pilapitiya resigned as the Member of Parliament for Kalawana . He held that seat not because he had been elected in 1977, but because he had been nominated to fill the vacancy caused by his losing the seat after he was absent from Parliament without leave for three months. He had absented himself deliberately, since he was about to be disqualified by the Courts after the hearing of an election petition.

This was one of the million petty stratagems that the Jayewardene government, with the unquestioning support of its vast majority in Parliament, used to affirm its absolute authority. The original Mr Pilapitiya was disqualified, and a bye-election had been held in terms of Article 161 (b) (i) of the Constitution (with Sarath Muttetuwegama of the Communist Party being duly returned as a Member of Parliament). However the second Mr Pilapitiya remained in Parliament, since he had been nominated to fill a vacancy under Article 161 (d) (iiii) of the Constitution. This second Pilapitiya felt, with the support of the entire government, that he was totally different from the first Pilapitiya. The Pilapitiya nominated to fill the vacancy had not been disqualified, and therefore he was entitled to stay on.

Not even the Jayewardene government thought it possible to claim that no bye-election should have been held, on the grounds that the disqualified Mr Pilapitiya no longer existed, and therefore did not need to be replaced. Instead it hit on the happy remedy of proposing that there should be two members for Kalawana, one to be elected as a replacement for the original Pilapitiya, the other the reincarnated Pilapitiya who had been nominated to the vacancy. This required a Constitutional Amendment, the Third proposed by the Jayewardene government, to allow Kalawana to have two Members.

The Supreme Court had subverted the jurisdiction of the Court of Appeal by permitting the First Amendment to the Constitution, and had facilitated crossovers to government but not from government through the Second Amendment. But by 1981 even the handpicked Chief Justice, Neville Samarakoon, who had been Jayewardene’s personal lawyer, had begun to feel that enough was enough, a trajectory that led to him being brought before the Bar of Parliament a few years later.

The Court ruled, not that the proposed Third Amendment was abject nonsense, which I suppose Courts are too proper to say, but that it required not just a two-thirds majority in Parliament, but also a Referendum, since it affected the franchise. Since this would have been a truly preposterous measure to propose for Sri Lanka’s first Referendum (that honour was reserved for the Amendment that extended the life of the 1977 Parliament for six years), Jayewardene found himself in a dilemma.

He was saved by the then Secretary General of Parliament, who had not been consulted when the then Speaker created the Second Mr Pilapitiya. Finally called on to advise, a procedure the Jayewardene government had avoided given his understanding of Parliamentary practice, he suggested Mr Pilapitiya resign. He was reminded that would result in a vacancy, and that ‘the Secretary-General of Parliament shall forthwith inform the Commissioner of Elections of such vacancy’, whereupon there would have to be yet another nomination. His response was that, in reading that section of the Constitution, the stress should be not on ‘shall’, but on the word ‘vacancy’. His view was that, if the Second Mr Pilapitiya took himself away, there would be no hole created, since he was in any case a figment of the Speaker’s imagination.

Jayewardene wondered what would happen if that view were to be challenged in the Courts. The answer was that was a risk worth running, the Secretary-General’s only stipulation being that he should defend himself in the Courts, with the Attorney-General’s Department not being allowed anywhere near.

Daring

Jayewardene thereupon accepted defeat with good grace. I gather this had happened previously too, as when he was thwarted in his attempt to have Mrs Bandaranaike condemned by a Select Committee of Parliament for bribery. But, after he became President, with few people daring to oppose him, he grew more and more autocratic. Possibly, had Chanaka set up the Council in January 1981 as an independent entity, but with Jayewardene’s backing, he might have heard dissent with sympathy, understanding that it was for his own good - but that alas was not to be.

So we went on with the dance of death that was his legacy: the District Development Council elections of 1981 with the burning of the Jaffna Public Library, the subsequent Third Amendment that abolished the fixed term Presidency the Constitution had initially enjoined, the Fourth Amendment to put off elections, the Fifth Amendment that introduced selective bye-elections, the Sixth Amendment that, if arguably reasonable in another context, had the effect of driving the TULF from Parliament and handing over the Tamil cause to militants.

And in all this he had the support of over 140 members of a 168 member Parliament (far fewer when the TULF was away, from 1983 to 1989), with well over 100 of them Ministers. There were Ministers in the Cabinet, and Ministers not in the Cabinet, and Deputy Ministers, and Project Ministers and District Ministers. They were appointed under Sections 44 and 45 and 46 of the Constitution, though the terms Project Ministers and District Ministers do not occur in the Constitution. The latter received legal substantiation with the Development Councils Act of September 1980, but they had in fact been first appointed two years before, in October 1978.

Crossing over

What prompted this proliferation of entities? It was not the reason that has often been advanced since then for increases in the size of subsequent Cabinets, namely that Members of Parliament have to be kept happy, otherwise they will cross over to the Opposition and bring down the government. After all no one then would have dreamed of crossing over to the Opposition, given the draconian penalty for losing membership of the party to which one belonged, namely expulsion from Parliament, which in those days it would have been unthinkable to challenge in Court. That penalty had been specified in the Transitional Provisions, even though the theory behind it, namely that one had been elected on behalf of a party, not as an individual, applied only to the Proportional Representation system that was envisaged for the future.

Stratagem

There is another reason too why Jayewardene need not have feared Members of Parliament from his side crossing over to the Opposition. The stratagem of engineering such crossovers is essentially a UNP device, not one readily available to the SLFP when in Opposition, when it would not have the financial resources the UNP is able to command at any time. Whilst it is generally accepted that at least one of those who left the SLFP and brought down the Government in 1964 was motivated by ideals, it is also well known that financial incentives were involved in other cases. This phenomenon recurred in 2001, but it is not something the SLFP could have dreamt of achieving during the Jayewardene years.

Jayewardene did give Ministries to a few Opposition members who joined the government, but this was exceptional. I believe it was only Mr Thondaman and Mr. Rajadurai who were so dignified, while nothing of the sort was deemed necessary for Mr. Canagaratnam, who also I believe left the TULF for the UNP, and was shot for his pains by the LTTE. He survived that attack, but remained a sick man, like Mr. Sivasithamparam a decade later. When he died, he was replaced by his sister.

No Ministry was given too to Mr. Samaranayake, the 2nd MP for Beruwela, who crossed over from the SLFP, nor to Mr. Wijesiri, the 2nd MP for Harispattuwa, who was an Independent who joined the SLFP, and subsequently moved over to the UNP. Interestingly enough, the three TULF MPs mentioned above also belonged to multi-member constituencies. Two of them, in addition to the two Sinhala MPs noted here, shared their constituencies with Muslim MPs, all of whom belonged originally too to the UNP. This suggests that a return to single constituencies, but with provision for multi-member constituencies in areas of significant ethnic mix, will serve the minorities well in terms of representation, in particular if they join the main parties in reasonable numbers. The manner in which Jayewardene swept them all up will have to be kept in mind however, and provision made to prevent this recurring.

But my point here is, why did Jayewardene, with no need to bribe his MPs to stay with him, with no need to provide Ministries as a matter of course to MPs who joined him, create so many Ministers? The consequence, especially given his vast majority in Parliament, was that, with the exception of a few Opposition figures, there was hardly anyone whose primary responsibility was legislative. The business of Parliament then was essentially in the hands of Ministers, whose principal responsibility was to their executive functions. Such a situation went completely against the grain of Jayewardene’s initial conception of the Executive Presidency he introduced.

His hagiographer, A J Wilson, who subsequently turned against the Sri Lankan state with venom, even though he continued at times to be sentimental about his old benefactor, claimed that Jayewardene had a mandate for the change, in that he had once claimed that a Presidency on the American model was desirable for development. Wilson’s superficial book, ‘The Gaullist Constitution of Sri Lanka’, which was in great vogue in the early 80s in Sri Lanka, did not however at all examine why Jayewardene had ignored a most important aspect of such Presidential constitutions, namely that the Executive is distinct from the Legislature.

Phenomenon

Wilson indeed notes that, in Jayewardene’s musings, which the book dignifies into a manifesto, he had wanted a Cabinet outside Parliament; but Wilson hardly looks into the reasons for placing the Cabinet firmly in Parliament, which the 1978 Constitution does, a phenomenon not seen in any country which is cited as a model for a Presidential system.

The result was total control of the Legislature by the Executive. Gone therefore was the tradition of control of the Executive through traditional parliamentary instruments such as the Committee on Public Accounts. Even if this had not always been chaired previously by a member of the Opposition, the Chair was not a Minister. Indeed, in 1970, Bernard Soysa refrained from taking up the position of Deputy Minister of Finance (though he used to act for the Minister in his absence), so that he could chair the Public Accounts Committee without being trammelled by executive responsibilities.

Tempting

However, with practically everyone of consequence in government in office, the supervisory function of Parliament simply disintegrated. And, with the carrot of easy office tempting them (and with the stick of possible expulsion), the few backbenchers there were naturally toed the line assiduously.

But, in addition to the increased control it gave him of his Members of Parliament, there were I think a couple of other reasons for Jayewardene’s multiplication of Ministries. One was, very simply, the additional resources these individuals could command as Ministers. With the new economic policies the Jayewardene government introduced, without getting rid of the controlling powers of the state, there was massive scope for profiting through executive office.

Personal electorate

And going together with this was a second reason, namely the abolition of responsibility towards a limited personal electorate. Through his introduction of District level proportional representation, Jayewardene in effect cut the link between the Member of Parliament and his constituents.

Instead of being able to concentrate on a limited area, for the development of which he was solely responsible, the Member of Parliament had to look further afield.

Whilst in theory he had a larger area to cover, the commitment he felt to his constituents, and the commitment he had to develop in them towards himself, were no longer of the essence.

And when the initial pure party PR system was changed to allow for three personal preferences, for which candidates had to compete each other, these two factors came together in a big way. Any Parliamentarian had to impact on a vast area, which meant far greater resources were needed.

Obviously the best way to command such resources, preferably legitimately, though not necessarily, was through the patronage an executive office would provide.

And so, for the Development Council elections, for the Referendum to keep Parliament going, for the Provincial Council elections, for the Presidential and Parliamentary elections, there were lots of Ministers wielding enormous resources, of course for themselves as well as their Party.

The essence of a principled Presidential constitution, as laid down in the first of its kind in the modern world, the American one, is the separation of powers. Executive power is vested in a President who, indeed, does not have Ministers, but appoints a number of Secretaries to head the various Departments created to assist him in his responsibilities. The number of such Secretaries is limited by the Constitution, though in recent years there has been some increase as new and sometimes old subjects increase in importance - thus Education was hived off from the old Health, Education and Welfare portfolio, while Veterans’ Affairs has now its own Department.

In the British tradition, on the other hand, everything belonged to the King, and therefore he could himself decide how many advisers he needed.

That indeed is why Ministers collectively are called the Cabinet, which refers to the private room in which they met. Their membership of Parliament was almost an accident, springing from the fact that, when the King chose people from outside the ranks of the nobles, who were anyway in the House of Lords, he ennobled them.

With the Revolution of 1688 - the great Liberal Revolution, which the French Revolution was supposed to emulate, before it turned bloodily radical - and then the end of the acceptable Stuart line, which led to a German king who spoke no English, the Cabinet acquired greater independence.

Old principle

Having in itself however no independent authority, it had to be rooted in a statutory body, and this was Parliament. Since Parliament however had nothing to do then with democracy, as we now understand the term , selection to ministerial office still went on the old principle of, not quite merit, but what the sovereign or his representative, the Prime Minister, saw as merit. And of course, with the Industrial Revolution, the need for oversight of a vast range of activities led to the expansion of the Cabinet, with a concomitant need to increase the pool, as it were, from which Ministers were drawn.

Electoral terms

Correspondingly, with the need for Parliamentary majorities, other criteria apart from merit or supposed merit came into play. There was a need for representation from all parties, or interest groups, whose support was necessary for the survival of a government. And individuals who had made their mark in electoral terms had to be considered, in particular, with the strengthening of party politics in time, those who contributed to the electoral success of their parties.

These considerations were not important in the Presidential system as initially envisaged. Sometimes American Presidents coopted their opponents by appointing them to the Cabinet, but that had nothing to do with electoral politics as far as the incumbent President was concerned . And when a different Presidential model emerged, in France with the Gaullist Constitution, which added on a Prime Minister who had to have the support of the Legislature, the Cabinet was also divorced from the Legislature, even though deriving its authority from that Legislature. Ministers who had been elected to Parliament resigned, while there was provision for appointments from outside politics - the most obvious example of this is Bernard Kouchner who was French Foreign Minister until recently, after coming to fame as a Non-Governmental activist, but there have also been many capable Civil Servants and businessmen.

Expertise

It should be noted too that the traditional Westminster system, where the Cabinet is rooted in Parliament, also permits for expertise from outside to be brought into the Cabinet. Britain has continued with its House of Lords, with Lord Amos being a recent example of an influential Minister who had not been elected - and we cannot forget, given her seminal role in getting rid of GSP+ while head of Foreign Relations in Europe, Lady Ashton, who came there via the House of Lords.

India of course has its Rajya Sabha, to which experts suitable for Ministerial office can be appointed, most obviously Manmohan Singh - which is similar to the precedent set in 1960 when Mrs Bandaranaike became Prime Minister, though she was also made leader of her party.

And in Thailand, which has a fully elected Senate, members of the Cabinet do not have to be members of either House of Parliament. In Sri Lanka however, when he introduced a Presidential system which he had argued was necessary to divorce the Executive from legislative responsibilities, Jayewardene deliberately continued with the principle that Ministers had to come from Parliament. He also introduced the notion of Ministers outside the Cabinet, which made no sense at all inasmuch as he did not at the same time restrict the size of the Cabinet.

Optional

There was a difference, inasmuch as Cabinet Ministers had to have Ministries, whereas non-Cabinet Ministers only needed to have subjects and functions, with Ministries being optional. However there was no definition of Ministry in the Constitution, and Jayewardene characteristically created Ministries at will, bifurcating and joining as he pleased, as in the preposterously named Ministry of Women’s Affairs and Teaching Hospitals .

Subsequent Presidents then inherited a situation in which it was assumed not only that they could, but also that they should, appoint Members of Parliament to Ministries ad infinitum. Meanwhile the perks of Ministers had been increased, with the power to appoint vast numbers of individuals at will to their personal entourage . It became even more desirable then to become a Minister, while it was also obvious that it was easier to make a mark as a Minister than as one of a collective in a District. The credit Members of Parliament could obtain in the past by working in their electorates had been diluted by the presence of colleagues who also had a stake in obtaining preferences from that electorate .

Along with this incentive to request Ministerial office, there was also the added bargaining power that Members of Parliament possessed. With the abortive impeachment attempt of 1991, Presidents realized that they had to work much harder at keeping their Parliamentarians happy. And, as indicated above in the different criteria considered relevant for Ministerial office when the Parliamentary system develop in Britain, there were several aspects that had to be taken into account in privileging Parliamentarians. Merit was one, and seniority was another, but also the ability to succeed electorally - which often required abilities that were not necessarily those required by Members of a Cabinet.

And above all there was the fact that there was no good reason in Sri Lanka after 1977 for refusing a request to be a Minister - there were precedents for large Cabinets, and there could be no question of caliber being of consequence, given the systems on which Cabinets had been appointed in Sri Lanka from practically the very beginning.

There were efforts to limit the size of the Cabinet, but these never lasted long. The most important attempt was in 2001, when President Kumaratunga was put on probation by the JVP, which agreed to support her after the exodus to the Opposition of a few of her Parliamentarians. One of the conditions was a Cabinet limited to 20, which she nearly achieved.

Foolishly - or perhaps cunningly, in anticipation of their own electoral victory at some point - the JVP failed to get this entrenched in the Constitution, which might well have been possible at the time, given Kumaratunga’s eagerness for support and the willingness of the Opposition to support reform. Unfortunately the focus at the time was the 17th Amendment, yet another example of a good idea perverted through insufficient attention to constitutional principles (as with the Presidential system, proportional representation, a second chamber and devolution).

Mrs Kumaratunga’s small Cabinet promptly disintegrated, with some members crossing over to the Opposition, almost immediately after they had been appointed. At the subsequent General Election, Mr Wickremesinghe obtained a majority with the help of the defectors, and became Prime Minister. He followed the trend Mrs Kumaratunga had set on the instructions of the JVP, and started with a small Cabinet, but he had as many Ministers outside the Cabinet. It was also apparent that he had simply followed a formula, for he managed to leave his Minister of Human Resources Development, Karunasena Kodituwakku, who was supposed to be in charge of Education, outside the Cabinet. This may have been deliberate, since it allowed the Ministers of Education and Higher Education to set themselves on a par, and take control of various aspects of education which Mr Kodituwakku never got back into his hands. But in theory a mistake had been made, and Mr Kodituwakku was soon afterwards elevated to the Cabinet along with several others, while even more Ministers were appointed.

A measure of the cynicism involved can be seen in the fact that some of these Ministers had no operational budget at all, but simply funding to run an office. Since one of the clarion calls of that government was for fiscal discipline, with public spending being cut left, right and centre - most notably in Education - the fact that Mr Wickremesinghe introduced new Ministries with no actual functions suggested that he had the same attitude to the Executive as his uncle President Jayewardene.

One reason for Ministries to keep multiplying year after year, whoever was in Government, was that no one ever ceases to be a Minister. A reshuffle in Sri Lanka does not mean, as it does elsewhere in the world, that some Ministers go to the back benches and others are elevated to executive office. Rather, all old Ministers continue, most of them in the same position, and therefore new Ministries have to be created for those who are deemed, or deem themselves, worthy of portfolios.

It is in that context that we must consider the recent innovation of Senior Ministers being appointed. One of my elite acquaintance, who normally has no good word to say for the government, mentioned that she took her hat off to the President, in that he had finally found a way of retiring people. This is a line the Opposition plugged during the recent Adjournment Debate on Senior Ministers, since it was obviously in their interests to suggest that the Senior Ministers had somehow been got rid of, and should therefore feel annoyed, annoyed enough to cross over to the Opposition in time. This is one way of looking at the innovation, though I suspect the UNP has no reason to be particularly hopeful at this stage. Its tactics in 1964 and 2001 only worked because there were particular issues that could be played up with the electorate - and those who cross over know that, even on a District PR system, it is not easy to get elected, which is why so many of them end up on National Lists. The term Senior Minister and the concept that many of them have accepted gives them a very real task, if they are willing and able to undertake it.

For what has been missing in the proliferation of Ministries over the last three decades has been coordination. If you have several Ministries concerned with similar subjects, there has to be some way of preventing duplication of work, of expenses, of initiatives. This is not easy, given our administrative system, which privileges the autonomy of Ministries, given centralized accounting systems and the absence of mechanisms for consultation except with regard to overarching projects. Indeed even the Treasury finds it difficult to keep track of the work Ministries do, in particular the funding they get from external sources, though a valiant attempt to introduce some order into this was made in recent years through the Ministry of Plan Implementation.

The picture is simply too big for coherent monitoring and coordination.

Hence the broad but important areas which have been allocated to the different Senior Ministers. I do not of course know all of them well, but those I do know have the analytical skills, and the conceptualizing ability, to obtain overviews of their areas of responsibility. Of course transforming the picture that emerges into a tool for targeted action is another question, but that is where interpersonal skills will have to contribute as much as the authority born of seniority to regular and productive consultation.

They should also be able to use the tools the Parliamentary system puts at their disposal, the Committees on Public Accounts and Public Enterprises, the Consultative Committees which, after lying dormant for some years, are now being revived in at least some Ministries as instruments of policy making and consensus building. These Committees have an invaluable role to play in recommending streamlining, the abolition of redundant government departments, the establishment of new norms for public servants, in the struggle for fiscal responsibility that the whole world now realizes is essential. Reforms however need, as the latest budget illustrates, a human element as well, which is why coordination to safeguard essential public services, whilst cutting what is wasteful, is necessary.

Senior Ministers then have a vital and innovative role to play, though it remains to be seen how many of them will fulfil expectations. Obviously not all will, but it is best to give them all an opportunity since, for the reasons discussed previously, selectivity is no longer possible in the appointment of Ministers. Given the catch all situation that obtains, what is important though is monitoring, and this is a task that, given their experience, Senior Ministers should be able to perform, not necessarily in any critical way, but to ensure productive use of resources in the areas under their purview.

Indeed, if the Senior Ministers, or some of them, are successful, they may be the precursor to a more rational Cabinet system than we have at present, based as it is on British practices along with Jayewardene stratagems, which are no substitute for the Constitutional conventions Britain developed over the centuries. Ideally, the portfolios the Senior Ministers have, together with essential offices of state, and departments essential for all aspects of development, would add up to a Cabinet of about 20.

Whilst of course Cabinet Ministers could then have other Ministers for support, the executive capabilities of Members of Parliament could also be exercised in their constituencies, on the new electoral system that all parties see as a priority. Needless to say, the benefits of office Ministers now have could be extended to all Constituency MPs, since they would have wide-ranging responsibilities in the limited geographical area that had been committed to their charge.

My argument then is that, instead of seeing Senior Ministers as a threat, as the Opposition does, or pretends to, if only to dragoon those Ministers into seeing things the same way, we should see this as an opportunity. It is the first important variation for years on the theme Jayewardene began playing when he gave himself the power through the 1978 Constitution to appoint Ministers as he pleased. If used imaginatively, it could be the basis for ensuring better accountability on the part of the executive, not only to the people, not only to Parliament, which represents the people, but also to the President, as the head of the Executive elected by the people.

(A lecture delivered last week to mark the 24th anniversary of the founding of the Liberal Party of Sri Lanka and the 30th anniversary of the founding of the Council for Liberal Democracy)