‘Will you all join my government?’ President asked entire Parliament The second is deadly to more than one fly

by Usvatte-aratchi

There (were) are forms of government in which the legislature (Parliament), those who make laws, are the same as those who execute them. There are other forms of government in which disputes between the two, as well as between citizen parties, are settled by the executive. The epitome of such concentration of authority and power is an absolute monarchy/a tyranny, where a king in 18^th century France could say ‘I am the state’ or a dictatorship as we saw in Germany, in the 20^th century where legislative, executive and judicial powers were all vested in one Fuehrer. The form of government in present China, seems unique in that the Chinese Communist Party, with its countrywide presence, exerts a strong integrating force over all decisions of government.

There are still other forms of government, where the central feature is that there is a separation of powers: lawmakers (legislature), those that put those laws into practice and propose new legislation (the executive) and those that adjudicate disputes (the judiciary). Each of those parts is autonomous within spheres determined by law. It is a modern form of government. Neither the Roman nor feudal forms of government, nor ancient Chinese, Indian, nor the magnificent governments in Africa exhibited this feature, had anything like it. It is also a sophisticated form of government, because at some point, close to the top, it is necessary to unify the exercise of supreme power.

The organ at the top, which exercises such massive power, needs to be checked on the one hand and the powers exercised by one branch must be balanced with those exercised by other organs, on the other. Otherwise, one branch will exercise power over others and the regime may become tyrannical. As Alexis de Tocqueville so sharply observed in the 18^th century, the clearest functioning of the separation of powers then, was in the government of the several states in America that went ‘to form a more perfect union’ and remains so to date. The powers of the President (the executive) to appoint judges of federal courts are subject to approval by the Senate (a part of the legislature). Most recently, the Senate rejected the nomination of Justice Robert Bork, a brilliant jurist, to a seat in the United States Supreme Court.

Whenever the Appeal Court of Sri Lanka grants a plea by a defendant to release him/her from police custody, the judicial branch is checking the activities of the executive branch of government. Whenever the Supreme Court rejects or limits the provisions in a Bill before Parliament, the judicial branch is checking the activities of the legislative branch. When the executive branch stands in the way of the legislative branch of government exercising the latter’s principal lawful functions, the Constitution is in jeopardy.

The question becomes immediately urgent because the President, the head of the executive branch, who also happens to be the Minister of Finance, has refused (has failed) to ‘issue a warrant under his authority to withdraw from the Consolidated Fund a sum …’to defray the costs of holding elections’ to Provincial Councils in March 2023 or thereafter. Parliament, the legislature, in November 2022, specifically had voted to incur that expenditure in an Appropriation Bill (Budget proposal) presented by the then Minister of Finance. The reason given to the public was that the government had no funds. (As a matter of fact, governments almost never have funds.

You have to tax the public to find money!) There is no provision in the Constitution for the Minister of Finance to exercise any discretion in the matter of disbursing funds in the Budget approved by Parliament. In such circumstances as when a vote of expenditure had been approved by Parliament, it is necessary that Parliament, in a supplementary Bill, disapprove and eliminate that expenditure from the Budget for the year 2023. It is not provided for in the Constitution for the Minister of Finance (or for that matter, any functionary) to delete any expenditure at his discretion. To do so would be to vitiate completely the provision in Section 148 that ‘Parliament shall have full control over public finance’. The Minister, who is not a member of the legislature, has made completely nugatory the will of the legislature. It is the function of the judiciary to restore the constitutionally valid position.

In most countries, where there is a separation of powers, the executive branch has immediate control over irresistible lethal power. Other branches can intervene but by the time they do so, the foul deed may have been done. The executive branch of government can impose its will on the other branches, were it to so make up its mind. That it does not do so rests on a desire on the part of all parties that a liberal form of government is desirable even at the cost of some degree of efficiency.

There has been no deep respect for the principle of the separation of powers in our country. When the Chief Justice of the country was forcefully evicted from her post effectively, the legislative branch failed to stand up to respect the autonomy of the judicial branch. The lackadaisical conduct of the executive branch in investigating grievous crimes, committed by the executive branch, has made it impossible for the courts to perform their lawful functions. To tolerate the conduct of the Minister of Finance, who is not a member of Parliament, to interfere in matters of control over public finance to deny funds for legislative activities, is to give the executive branch of government power to veto decisions of the legislature.

Under these chaotic governance practices, the legislative and judicial branches must keep sharp vigil lest their powers are grabbed by a corrupt and incompetent executive branch, which has shown a pronounced proclivity to plunder and waste. Hearings at the meetings of the Committee on Public Accounts and the Committee on Public Enterprises reveal daily and weekly, shocking gross incompetence and wholly unacceptable shortcomings on the part of senior members of the executive branch.

In a way, we should expect that turnout because the Cabinet of Ministers, who sit atop the executive branch, are calumniated to have plundered government funds so much so that the crisis in public finances we suffer through are the direct result of those crimes. That no member of a previous and present Cabinet has been convicted of any crime relating to such plunder is convincing evidence of both widespread and deep corruption in the entire machinery of government.

The Opposition in Parliament and media will serve this society best, if it, in so far as it can, were to guard the community against a repetition of the plunder of public funds that threw this society into a position of a mendicant nation. Custodians cannot protect their charges by changing the coats they wear into those of criminals.

The advice of some elders in this society for Parliament to unite with the executive to build this nation arises from a failure to understand how deeply this nation has been wounded by its political leaders, since 2005, and how the structure of government we have adopted requires a separation of powers and the exercise of checks and balances by one branch of government on the activities of another. The spider invites you to his parlour to fatten itself at cost to your very existence.