Part II
States exercise power through the machinery of state: bureaucracies, the bodies of state and local government, legislatures, judiciaries, police and armed forces.
To prevent abuse, this machinery must be controlled. Power must be limited in how it may be used. This requires:
a) Setting rules that circumscribe its use. It cannot be exercised arbitrarily by those in authority but only in defined circumstances and must follow set procedures. These are laid down by laws. Laws must be universal, applying equally to all including the government itself, no one is above the law (the rule of law).
b) Distributing authority, so no single organ of government has the practical ability to exercise power unchecked (separation of powers).
As the law is the principal check on power it is essential that the process of law-making itself be subject to checks.
These are the principles that must be ingrained in the constitution and the organisation of government.
How true is our system to these principles?
1. Elections and accountability to the public
The president and parliamentarians are elected which creates accountability to the public. The weakness is that once elected, voters have absolutely no control over their representatives, except to remove them at the next election. Requiring candidates to submit to regular and periodic elections is important but other checks that restrain power on a day-to-day basis are critical.
2. Separation of powers: Parliament as a check on Government.
At the apex, parliament must be a check on government. The two are not synonymous.
The political party that wins the most seats takes charge of government, until the next election. The Government is responsible for running the country.
Parliament is made up of MPs elected by voters and is there to represent citizens’ interests and make sure they are taken into account by the Government. They are not a part of government. Government ministers may have seats in Parliament but most of their work is done in Government departments.
Parliament must scrutinise the activities of government- examining expenditure, administration and policy in detail, requiring the government of the day to explain itself to parliamentarians as representatives of the citizen. This happens through:
(a) debate
(b) questions
(c) investigation
Parliamentary Debates may be about legislation, government activity (policy or implementation), or issues of public concern.
“For government the purpose of debate is often to showcase the political argument or philosophy behind a particular policy or approach to an issue, or to test opinion on it. For the Opposition and backbenchers it provides an opportunity to demand an explanation of why a particular policy has been pursued, to identify weaknesses in the evidence base or formulation of a policy, or to provide new evidence or analysis.” (White, 2009)
Parliamentary questions (in the UK tradition) allow MPs to seek information or to press for action. They oblige Ministers to explain and defend the work, policy decisions and actions of their Departments.
Investigation-drilling deep into issues, is carried out by Committees.
The ultimate form of parliamentary control is that it can force individual ministers, or even the entire Government, to resign in votes of no-confidence.
For these processes to work, MPs must be independent. It requires opposition MPs and backbenchers in government who will question their own policies but in Sri Lanka this is absent.
MPs not independent
According to the prevailing version of proportional representative system, the constituency votes for the party first and the individual later. The party hierarchy is empowered to expel any of its members who vote against the party and replace him/her with another member of the party. An expelled MP automatically loses his/her seat.
As MPs who dare defy their leaders may be ejected independence is lost. Instead of representing the citizens’ interests, they represent the party leaders’ interests.
Power of government strengthened in the legislature
MPs cannot defy party diktat but a Supreme Court ruling allows them to cross-over without losing their seat. This enables the government to lure MPs by offering them positions, securing a permanent voting majority.
As MPs fear to question, parliament becomes a rubber stamp, not a check. Laws are what limit power, but if parliament cannot check government bad laws may be passed.
Under bad laws, power is legitimately exercised but oppresses citizens, a situation of rule by law as opposed to the rule of law. The Emergency laws or the Prevention of Terrorism Act are examples.
Committees are weak
Debates and questions allow issues to be discussed but committees are concerned with fact-based investigation. They go into issues in-depth in a way that Parliament, as a whole, has no time for, collecting and examine evidence to develop an understanding of what the government is (or is not) doing under its democratic mandate.
They can examine what the outcomes of activity (or inactivity) have been, including by requiring explanation from government. They can summon experts, stakeholders, demand answers from ministries, send for papers, and documents.
In the UK, there is a strong emphasis on committee reports being based on evidence, primarily that collected by the committee. The Government is required to respond to reports.
Committees provide the greatest scrutiny but until the 19th amendment, Sri Lanka had only ceremonial “consultative” committees. Instead of opposition members chairing committees (as in the UK) Sri Lanka’s were chaired by a minister of government. The government was not required to respond to any reports, effectively rendering them useless.
The 19th amendment has charged committees with oversight and they are now chaired by an opposition MP which is a big improvement but the reforms still fall short.
Recommendations:
(a) Upper House of Parliament
A single chamber legislature, if unchecked, could become dictatorial. Creating an upper house of parliament that checks and challenges government is one safeguard to bad laws. The Soulbury Constitution had an upper house- the Senate consisting of 30 members; 15 elected by the lower chamber and the rest appointed by the Governor-General.
(b) Strengthening committees
Although the 19th has provided the framework of independence, creating a culture of scrutiny is harder. A generation of MPs who hitherto toed the official line must learn to ask questions. This requires:
(i) Specialised training
MPs (and their staff), particularly those in committees would benefit from specialised training. Even established democracies (UK, Australia, Canada etc.,) have induction programmes for new MPs. At a minimum Sri Lankan MPs must be made more familiar with their constitutional responsibilities, rules of procedure, human rights, gender equality and public finance.
(ii) Open committee hearings to the public.
One way to improve scrutiny is to open the hearings to the public. The presence of media and interested citizens will have a salutary effect on the participants and allow greater public discussion on relevant issues.
(iii) Government must be required to respond to committee recommendations.
(iv) Adequate resources including access to external specialists
Committees must have proper resources- their reports claim they are hampered by lack specialist skills (legal, accounting etc.,), equipment and research capacity. Addressing these shortcomings is a must.
(c). Creating a committee on the Constitution
Sweden has a Constitution Committee that is tasked with ensuring that the Swedish government ministers follow the rules for the government—namely, the Swedish Constitution and Swedish law.
The committee consists of forty-four members representing all parties of and has the power to hold hearings, conduct investigations, and request classified materials from Mps. The Committee can act on its own initiative or in response to complaints from MPs (not citizens) and can initiate the prosecution of crimes committed by MPs in their capacity as MPs (decided by the Supreme Court).
(d) A Constitution Committee of the upper house
The House of Lords Constitution Committee’s role is to examine all bills for constitutional implications (a check against legislation that infringes basic rights) and, even more importantly, keep under review the operation of the constitution. This prevents the constitution itself from being undermined by ensuring that changes are not made “without a full and open debate and full awareness of the consequences”.
It fulfills the second limb of its remit by carrying out investigative inquiries into constitutional issues, engaging specialist advisers (external experts) and taking written and oral submissions.
Examples of constitutional implications include:
(I) any substantial alteration to civil liberties, including the right to habeas corpus and trial by jury;
(ii) alteration to the powers of the courts or measures that would place the exercise of power beyond the purview of the courts, or which would affect the independence of the judiciary;
(ii) alteration to the balance of power between Parliament and government, including the conferment of unduly broad or ill-defined powers to legislate by order.
(e) Revisions to the proportional representation system to restore constituency ties of MP’s.
(f) Judicial review of legislation.
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