It is now the time for elections. In the excitement and with the spotlight on political personages on stage, the general public sitting in the dark audience is undergoing a fundamental social experience, that of exercising sovereignty. It was the political philosopher, Rousseau, who famously observed (to generalize what he said) that people are free only during election time and went on to comment cynically that the use it makes of the short moments of freedom it enjoys shows that they deserve to lose it. Be that as it may, the important thing is that we are sovereign once again, though for a brief moment.

Sovereignty in the Constitution

It is stated in the Constitution (and in the previous 1972 Constitution) that "sovereignty is in the People and is inalienable". Inalienability is an important facet of our sovereignty. It means that no derivative institution, be it the presidency or parliament or political party or military for that matter, can lawfully usurp this power from our grasp. On occasions when elections have not been held on due dates, or in the manner constitutionally prescribed, due to decisions taken by derivative institutions we have to consider our sovereign power to have been temporarily usurped.

The other distortion is the cult of personality that develops around individuals. There is a definite idolatry of the individual, be it a president, a prime minister or a party leader. After a decisive military victory, war heroes too can enter the exalted circle. The people need leaders to look up to, to whom they could entrust their welfare. Such leaders, in turn, acquire feelings of superiority which feed back to the people and result in a veneration of these exalted persons. If this process develops unchecked, then, our sovereignty is at risk. This is why periodic elections are valuable instruments to restore the balance and reassure us that we are the real sovereign; others are counterfeit.

The Exercise of Sovereign Power

The Constitution recognizes two secondary sources of authority (derivatives), in parliament and the president. Both derive their authority from the sovereign people, and are elected by the people in separate electoral exercises. The mandate given to one institution is in no way inferior to that given to the other. They enjoy equal and independent authority. In practice, however, these domains can impinge on each other and the situation may demand a realpolitik adjustment and accommodation.

Constitutionally, parliament exercises legislative power and president the executive power, but there are grey overlapping areas. For instance, the president needs funds to maintain himself in office and discharge his functions but these funds have to be voted by parliament. Legislation passed by parliament has to be implemented through a bureaucracy that is technically under the control of the president. Furthermore, the PM and ministers have to be chosen from parliament and enjoy its confidence, but every minister has a role to play in giving direction to the executive administration falling within his portfolio. All this is very complicated. If parliament and the president do not come to some understanding it could lead to a deadlock and a breakdown in governance. In such a situation, the sovereign is lost sight of and made to stand by helplessly as society gets engrossed in a tussle between the two derivatives!!

Enter the Political Party

In a recent interview appearing in the Sunday Island of 06 December 2009, Professor G L Peiris explained how this constitutional imbroglio is resolved. It is by establishing a close link between president and parliament through the agency of a common political party, which he described as "the cement which binds together vital components of the Constitution". This is how the system has worked in the past thirty years, except for that hiatus of co-habitation in 2001-2004.

A crucial conceptual issue arises from the above rationalization. Up to this point we were dealing with the sovereign and his creations, the derivatives. Now, we are asked to concede constitutional significance to another institution, the political party, which cannot derive its authority from the sovereign for the simple reason that it derives its strength from only a segment of society. The political party is not of the same kind as a derivative that draws its authority from the sovereign. Furthermore, its composition is not democratic as there is little internal democracy in political parties; they are mostly dictatorships.

To add insult to injury, political parties have infiltrated the very processes of the making of derivative institutions. In parliamentary elections we are not free to choose our own candidates, they are pre-selected for us by political parties. We are gradually losing control over the quality of persons entering parliament. What is more, such MPs entertain a greater loyalty to their party than the sovereign. Presidential candidates have to be nominated by political parties. The ultimate repository of power becomes the political party through its control of the presidency and parliament. It becomes more than "binding cement", it transforms into the de facto pseudo-sovereign. The legitimate sovereign gets pushed aside and a pseudo-sovereign gets enthroned. It is this pseudo- sovereign that reigns in-between elections under the democratic facade of parliament and presidency.

The net result is that formal constitutional arrangements are set aside, and an extraneous entity, the political party, is surreptitiously introduced on the specious argument that at elections, both parliamentary and presidential, people actually vote for a political party and its nominees. People do so because they have no choice in the matter, and because the system has been so manipulated to give primacy to political parties. Whatever may have happened since the first general election of 1947, the constitutional statement today is still clear. Executive power is to be exercised by a person chosen by the people, not the political party to which that person may belong. Similarly, legislative power is to be exercised by parliament acting as a whole, not by a political party that commands the loyalty of a majority within it. Party government as we experience it today is a constitutional aberration. Much that is ill in society can be traced to this perversion. It is time to indulge in a bit of constitutional fundamentalism and try to regain at least a little of our lost sovereignty.

Reining-in the Political Party

The first task is to rein-in the political party. It has an important role to play in society: to mobilize, articulate and aggregate public opinion, and also to serve as a recruiting agency of political talent. It oversteps the social need when it becomes the kingmaker and metamorphoses into a pseudo-sovereign. The Youth Commission of 1990 (of which Prof. Peiris was a member) echoed what it felt was scepticism about the role of political parties and a "disenchantment with traditional political parties across the national spectrum". It warned that such disillusionment "cannot but strike at the very root of our democratic system". Twenty years later the situation today is no better, perhaps worse.

The second imperative is to juxtapose the constitutionally decreed derivatives in such a way as to act as a check and balance on the other. To do this we have to release ourselves from conventional mindsets and think "outside the box". Two specific models commend themselves for consideration.

The First Model

This consists of a political president and an "independent" parliament. The president is essentially a party man, whose party has a clear manifesto, a good track record, and a programme to be implemented. He is the Chief Executive, is free to select his cabinet from outside of parliament. It he selects an elected MP for ministerial office, such person has to first resign his seat in parliament. He will be Head of State, Head of Government and CinC. His government will be answerable to parliament. He will not enjoy immunity from suit. He will hold office for a fixed term, but will be removable from office on an Impeachment Motion. His ministers will similarly be removable on a Motion of No Confidence. Very strategically, he will not have the power to dissolve parliament at will.

The "independent" parliament is an innovative concept, first suggested by the late Dr. Chanaka Amaratunga, the essence of which is that MPs should be free to exercise their vote according to their conscience and not on party dictates, and parliament as a whole should be independent of the executive. To ensure this, members should be elected on their individual standing in an electorate and not on political party tickets. A corollary would be that the controversial PR system would get automatically abolished and the electoral system would revert to the first past the post system. Parliament, like the president, will function for a fixed term, but will have the flexibility to shorten its tenure on a Motion of Dissolution passed in parliament.

How can this system work without the "cement"? The two crucial elements are legislation to support executive policy and funds to finance government programmes. The point to be appreciated is that parliament will not have an Opposition that is obstructive and determined to topple the government at any cost. They are all independent legislators who will scrutinize the Bills, introduce necessary modifications, and pass them into Law. This is the ideal of a microcosm of society discharging its responsibility towards the nation in a non-partisan manner. The annual budget will be scrutinized by the various consultative committees of parliament well in advance of the Budget Day. Budgetary allocations will be negotiated in a spirit of cooperation (not confrontation) and the end result will be a collaborative effort involving both the executive and legislators. The Budget will not get stymied in parliament because independent legislators will not want to engage the wrath of their electors by starving the government of funds necessary to maintain public services.

Often, politicians talk loosely of evolving a new political culture. The above model can serve as a method of putting such ideas into practice.

The Second Model

This consists of an "independent" president and a politically led parliament. Parliament will be formed much the same way as today with political party competition. The majority will form the government with the PM and his cabinet chosen from parliament. The PM will be the Head of Government and direct the affairs of the country including defence. Legislation and finances will not be an issue because the PM controls parliament. Parliament will function for a fixed term, unless it decides to shorten its tenure.

What is the role of an elected president in this model? First and foremost he is elected on his individual standing without political party affiliation. So, he will not have a particular axe to grind. He will hold office for a fixed term, subject to Impeachment by parliament. He will not have immunity from suit and will not have the power to dissolve parliament. He will be Head of State and CinC, responsible for law and order.

His main responsibility will be to maintain an efficient, impartial and corruption- free administration (we have seen from experience that a politically led government cannot foster these qualities). The main instruments at his disposal would be the power of appointment to key posts, offices and Independent Commissions in terms of the 17the Amendment, appointment of Secretaries of Ministries and Ambassadors subject to approval by the Committee on High Posts, and conducting Commissions of Inquiry on matters of national concern. Moreover, since he has no portfolio responsibility, his hands cannot get soiled.

Conclusion

The analogy of "cement" to describe the role of the political party is very apt. It can bind, but it can also have a corrosive effect on everything with which it comes into contact.

Our society is riven by political parties. The public service is polluted, the police service has been driven to a point where it has lost credibility. Even the respected Maha Sangha is divided on political lines. Of late political rivalry appears to be rearing its head in the armed forces. This is a very dangerous trend.

When both, parliament and presidency, fall prey to the machinations of one political party, corruption and misgovernment set in. When they are controlled by two different political camps, then, friction and petty rivalry undermine governance, leading to a constitutional deadlock. The sovereign’s strategy should be to balance these two derivatives so as to serve as a check on the other without being mutually antagonistic.