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| Sunday, 5 January 2003 |
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Important aspect of Federalism : Separation of Executive from Legislature Sri Lankans are presently looking at federalism as a method of resolving our national crisis. It is important to remind ourselves that an important aspect of federalism in countries like the USA and France is the complete separation of the executive function from that of the legislative function. This note will argue that, such a separation is essential if Sri Lanka citizens are to be able to protect their rights in an effective way. Lord Acton, of the British House of Lords has famously said, in a judgment in a leading case that "Power tends to corrupt and absolute power corrupts absolutely". We Sri Lankans, who have suffered the intermittent abuse of power by our elected politicians over the last 54 years since independence will heartily endorse Lord Acton statement. Why don't we take the opportunity where Federalism in being seriously discussed as a constitutional principle to be implemented in our country to argue for a complete separation of the executive from the legislature and build in the necessary checks and balances to bring this about in our new constitution. We seem to be only talking of Federalism in a "geographical" sense, that is dispersing power between the centre and the periphery so that people living in the regions will have more power over their lives. This paper will argue that we need a centrifugal federalism too, at the centre and at all levels between the executive function and the legislative function. What is proposed is as follows: (i) The Legislatures, Parliament, Provincial Councils, Municipal Councils, Pradeshiya Sabhas and other Local Governments will confine themselves to making laws and regulations in conformity to the constitution and other existing laws. The legislative power of the people will be vested in such legislative bodies. (ii) The Constitution will provide for a fixed number of departments of State Executive Units (now referred to as Ministries - say between 12 to 14) a fixed number of Provincial Ministries etc. (iii) The Legislatures will have committees, which will supervise the functioning of all these executive units. Elected members in proportion to the party's representation in the legislature. As in the Donoughmore Constitution, the Committees will elect their own chairpersons, who with the Committee will hold public hearings on the working of the Executive Units and monitor the implementation of law and policy by the Executive Units. For example there will be a Defence Committee in parliament, the chairperson of the Committee will supervise on behalf of the electorate the operations of the Defence Department through public hearings. (iv) All the Chairpersons of the Committees in the Legislature will meet as a Committee and elect a Chairman who will be the "Head of the Legislature", the Chairpersons Committee will be the highest level policy making body in Sri Lanka. It will apply to other levels of Legislatures. The Executive will be headed by a "Chief Executive" who will be appointed by the Public Service Commission in accordance with a scheme of recruitment prescribed by law. (a) The Chief Executive in accordance with the Law in consultation with the PSC appoint Executives heads for other Departments of State, or Executive Units, number prescribed by the Constitution. (b) The Executives under the Chairmanship of the Chief Executive will form an Executive Committee and be vested with the Executive Power of the People. (c) The work of the Executive will be supervised by Committees of the Legislature, the PSC, the Judiciary and the Human Rights Commission Ombudsman, etc. The Judiciary will be made more independent and autonomous than at present. e.g. The Judicial Service Committee will consist of the three most Senior SC Judges. In this manner, the functions of the governing, executive, legislative and judiciary will be completely separate. Elected representatives will be limited to the legislative function. But their laws will govern the conduct appointment and operations of the executive. Committee of the legislature will closely monitor the implementation of policy set down by the legislatures by the executive, which will have to be according to law and subject to judicial review too. The "Fourth Estate" the media will have to be given more freedom and released from state domination and be made accountable to law for their reporting. Civil Society will have to be strengthened by allowing class actions by aggrieved parties and more effective legal aid for redress of grievances alternative methods to the courts such as arbitration, mediation and conciliation should be institutionalised by law and made more effective. The rights of the citizen will be protected from the abuse of power by anyone arm of government or by the Media only if there is such a strict separation of power of the Legislative power from the Executive power. The Judicial power is at present separate, its autonomy must be strengthened. - A Reader |
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