Sep 16

Six CIMOGG articles, under the generic title “Inadequate Constitutional Proposals”, have appeared in the SUNDAY ISLAND of 9 June, 23 June, 30 June, 14 July, 28 July and 18 August 2013.  They may be accessed at www.cimogg-srilanka.org.

There is a hugely impressive section in the 1978 Constitution (comprising Articles 27 & 28) which sets out the “Principles of State Policy and Fundamental Duties” which should be followed by the President and the Cabinet of Ministers “in the enactment of laws and the governance of Sri Lanka for the establishment of a just and free society”.  However, in a typical piece of politico-legal chicanery, everything that is said in Articles 27 & 28 is negated immediately and totally by Article 29, which states: “The provisions of this Chapter do not confer or impose legal rights or obligations, and are not enforceable in any court or tribunal.  No question of inconsistency with such provisions shall be raised in any court or tribunal”.  In short, the People cannot call the President and the Cabinet of Ministers to account for not conforming to the basic principles which are required to be adhered to in order to establish “a just and free society”.  In similar fashion, there are many other laws where similar “loopholes”, big and small, have been provided by our lawmakers to help pull the wool over the eyes of the People.

The public should not be so negligent as to allow politicians to pass laws that, inter alia, violate Articles 27 & 28.  Hence, Article 29 should be deleted from the Constitution and all laws, before being presented to Parliament, should be subject to prior scrutiny by the Supreme Court to ensure that the aforesaid Principles are not violated.  Without such a safeguard, the Doctrine of Public Trust becomes all but meaningless.  A new Constitution should contain in-built provisions for such “judicial preview” of all laws before they get into the statute books.  Logically, such “judicial preview” would be far superior to “judicial review”, because the latter has too many of the characteristics of closing the stable door after the horses have bolted.  There is no reason why this process should not be initiated automatically by the Attorney-General without putting the onus on duty-conscious citizens to appeal to the Court of Appeal or the Supreme Court, at great expense, inconvenience and even personal risk, as is now the case.

The paramount importance of a thorough separation of powers has been referred to in some of the preceding articles of this series.  It has been made clear that, as a corollary, that the President should be independent of the three arms of government, though obliged to act on the advice of Parliament, which is the institution that is elected by the People and is meant to be the voice of the People.  The sixth instalment of this series elucidates how a suitable national figure could be elected to this position.  However, there is another key change that has to be effected to ensure that the separation of powers is properly secured.

No one who has his foot in one arm of government should have a foot in either of the others.  The grossest violation of this principle (other than having an Executive Presidency) arises as a consequence of having persons called “Ministers” who are elected as MPs to the Legislature and then appointed to head executive Ministries.  This anomaly lends itself all too readily to the abuse of power, nepotism and corruption on a scale that can be exceeded only by an Executive President (especially when the latter is further empowered by the 18th Amendment).  Thus, apart from doing away with the Executive Presidency, we must discard the concept of elected executive Ministers.  As already explained in the third instalment, it is CIMOGG’s position that, if there are 25 five-man Permanent Parliamentary Committees (PPCs) to formulate national policies and programmes, each of them would automatically replace the corresponding Minister in Parliament – and do a far, far better job.

The 25 Ministries that we have proposed for the Executive can be run professionally by Secretaries as the bodies that implement the programmes approved by Parliament, within the approved budgets.  This is what Secretaries of Ministries have always striven to do, when not interfered with by Ministers with private agendas and hangers-on.  The Secretaries, as the Chief Accounting Officers of their Ministries, shall be answerable to Parliament.  They shall submit monthly reports of progress and appear before the PPCs at least once in three months to answer oral and written questions put to them.

Thus, there will be no need for “Ministers” either in Parliament or in the Executive.  There would be no Prime Minister, subject Ministers, Senior Ministers, Deputy Ministers or Project Ministers.  For convenience of nomenclature, however, the units headed by the Secretaries will continue to be called “Ministries” so as to differentiate them from Departments, Authorities, Boards and Corporations, all of which will be subsidiary bodies. The Ministries would then function in a similar manner to US “Departments” but with one difference, namely, that they will not be headed by appointees from outside who would have to defend political decisions taken by a President, Prime Minister or Minister.  Serendipitously, vast amounts of time will be saved by public officers because they will not be forced to tag along with their Ministers to attend so many non-productive meetings and self-adulatory functions.

The existing Departments, Authorities, Boards, Corporations and other governmental bodies will be re-assigned to the most appropriate of the Ministries.  Thus, there will be hardly any disruption to the functioning of any part of the administration during the transition from the existing Constitution to the type of Constitution proposed here.  However, it would be necessary to create a Central Executive Council (CEC) that would oversee and ensure that all the Ministries follow the same norms of procedure and accounting of public funds.  One of the initial tasks of the CEC would be work out an overall mission statement to guide all branches of the Executive.  Another basic function would be to set out criteria for selecting personnel to fill the upper layers of the administration and to do whatever is necessary to see that the best available personnel are given the authority, targets and adequate means to carry out the responsibilities with which they are charged.

Another of the CEC’s primary tasks would be to create management and monitoring systems (including confidential peer reviews) to help improve the performance of personnel in the more responsible positions in all State institutions.  The CEC shall carry out a comprehensive study of the performance of all governmental entities within its area of responsibility, commencing with those that show the greatest losses.  It shall then take

whatever steps are called for, within the law and the administrative regulations, to rectify the shortcomings identified.

Where the requisite legislation, if any, has been passed and money allocations have been made by Parliament, it shall become the responsibility of the CEC to guide the administration to have the approved programmes implemented within budgetary and time constraints.  It shall direct the diverse administrative entities under its authority to investigate, plan, design, prepare the required detailed documentation, award contracts (where applicable), and monitor implementation.

The CEC should be an autonomous institution consisting of persons with proven experience of running large organizations successfully, in the public and/or private sectors, in order to cross-fertilize public sector and private sector expertise.  What is proposed here is to have the CEC give the administration professional leadership.  The CEC shall function in a manner similar to that of a Board of a large public company or group of companies though its responsibilities would be substantially greater.

The CEC shall consist of, say, seven members who shall be persons recognized for their senior management achievements from both within and outside the public sector.  The CEC would be very effective if it were to have three top Ministry Secretaries, recently retired, and four Chairmen, Executive Directors or Chief Executive Officers, also recently retired, from four of the top 50 public companies in terms of assets, turnover and profits.  The slightly greater emphasis on “outside” talent is to bring in fresh vision and the latest management techniques.  The persons chosen should not all be from the same background (eg. financial institutions only) but from a wide range of disciplines so that there is a good balance in the CEC.

Just as much as one can only choose a doctor, an engineer, a lawyer or some other professional but is not qualified to tell him how to treat a disease, design a structure or draft a contract document etc, Parliament shall not interfere with the CEC’s methods and day-to-day decisions in working to achieve the targets set for it, except to the extent that the relevant autonomous monitoring institutions created by Parliament (eg. the Committee on Public Enterprises, Public Accounts Committee, Attorney-General’s Department and Auditor-General’s Department) shall have the duty and the right to follow all phases of the Executive’s work to ensure that conformity with the law, the approvals given, and accountability are strictly maintained.