Checks and balances are necessary to ensure freedom. At the same time, there is the need for effective governance. We cannot have checks and balances reflected in a constitution to an extent that would seriously erode effective governance. That would produce a situation of gridlock and bring governance to a grinding halt. These competing values are of importance. Each is important.

It is not a case of preferring one to the other. It is rather a question of striking a practical balance between these competing postulates. In striking that balance, there is no universally applicable recipe. A balance has to be struck with regard to the circumstances of each case, the culture of the country for which the constitution is being made, historical antecedents, social attitudes - all of this would determine the way in which this balance should be struck.

Having these considerations in mind, it would be of immediate relevance to us in Sri Lanka to look at what is happening in the Maldives, and to understand how the Maldivian dilemma arose. The basic cause of the problem, is the fact that the opposition groups dominate the Maldivian parliament – the Majlis. In the Maldives you have the president belonging to one party and a parliament dominated by the opposition.

This is not totally unique in a presidential system. In western cultures, this happens often. In the USA, it is frequently the case that the occupant of the White house belongs to one party and the other party has a majority in Congress. France has had to deal with situations like that from time to time. In Sri Lanka too we have had experience of that situation under president Chandrika Kumaratunga, between December 2001 and April 2004.

However in the Maldives there are certain features which derive from a certain constitutional approach which can be identified as the cause of some of their problems. Some of these issues are directly relevant to the current debate on constitutional reform in our own country. The constitution of the Maldives contains several unusual characteristics. One of these is that the president when he nominates his cabinet is required to send the names of the cabinet ministers to parliament within a week.

And Parliament is required in terms of the Maldivian constitution, to approve each of those ministers. There are no such provisions in South Asian constitutions with the exception of Afghanistan. In Afghanistan as well, this provision has led to serious problems. In the Maldives the problem was aggravated due to the composition of parliament where the opposition commands the majority. The opposition insists on its right to virtually veto some of the appointments. Apart from that, the way in which the constitution is drafted and the basic values underpinning the constitution, necessarily lead to problems of a practical nature. It would have been surprising if that situation did not arise.

Constitutional gridlock

Today, there is general agreement in the Maldives, that their constitution in its present form is likely to lead to gridlock. The constitution of the Maldives recognizes in an explicit form, the doctrine relating to the separation of powers. The executive power is vested in the president, the legislative power in parliament and judicial power in the courts. One of the issues involved in the present crisis, has to do with the scope and dimensions of the legislative function. Recently, the opposition used its majority to amend the Finance Act of the Maldives in order to give parliament the power to review on a case by case basis all actions proposed by the president, with regard to the use of state assets.

The immediate reason for the present crisis was the refusal of parliament (Majlis) to give approval to a transaction involving the lease of the international airport. Each transaction proposed by the president had to receive the approval of parliament. Parliament in several cases refused to approve the transaction and in other cases, wanted to modify the transaction in a manner that was not acceptable to the president. Important pieces of legislation which the executive regarded as essential had been held up in parliament.

Another such example is the Taxation Bill. Maldives at this moment has no taxation at all. But in the interests of raising government revenue, the president decided that it would be useful and necessary to introduce taxation. For this purpose, a bill was drafted and presented. That has not been debated or passed by the Majlis. Then there was action taken by parliament to bring motions of no confidence against the ministers one after the other. Two ministers were specifically targeted. There was the issue of the sword of Damocles hanging over ministers of the Maldivian cabinet.

In these circumstances, the view of the executive branch of the government was that they were being prevented by parliament from carrying out the executive functions vested in them by the constitution of the Maldives. Parliament was on the other hand arguing that this was a necessary part of their oversight function – that they have a duty to assert their point of view, and to curtail and restrain executive power in a manner which they thought was in the interests of the Maldivian people. That is the gist of the conflict that has arisen in the Maldives between the executive and the legislature.

Another important aspect of the current controversy in the Maldives has to do with independent commissions. This is of particular relevance to Sri Lanka because of the current controversy revolving around the 17th amendment. Several Maldivian ministers have made the public complaint that in practice they are deprived of any real authority. One minister made the observation that even if he were to catch somebody red handed in his ministry committing a fraudulent or dishonest act, the minister is not immediately able to take action against that officer.

The minister does not have any real power he argues, to issue instructions to officials of the ministry, because real power resides in the commissions, such as the Public Service Commission and the Judicial Service Commission which are an integral part of the Maldivian constitution. So the minister also has to refer these matters to the commission. The commission carries out its own inquiry, uses its own discretion and makes its own decisions. The result is, as the case was put by members of the executive, ministers do not have the authority and clout to function effectively and this has brought about an atrophy of government.

Checks and balances

Of course you need checks and balances. This goes back to Montesquieu’s doctrine which he classically expounded in the famous work, The Sprit of the Laws. The gist of his argument was that the preservation of human liberty hinges on the separation of powers of the functions of the three branches of government – the executive, the legislature and the judiciary. That is the doctrine on which the constitution of the USA is founded. In some political systems, the separation of the executive from the legislature is taken so far as to require that members of the legislature cannot sit in the cabinet.

The cabinet has to consist of persons who are outside the legislature. That is the opposite of the Westminster system which requires all ministers to sit in parliament. The essence of the British system is that ministers must sit in parliament to answer questions that are put to them in parliament and to take part in debates. That is the way the British system ensures that ministers are susceptible to pressure exerted on them by representatives of the people in parliament. The continental theory is the opposite of that. The Maldives follows the continental theory according to which members of the cabinet cannot be members of the legislature.

Each of the branches of government must have sufficient authority to carry out their functions. The particular relevance of this for Sri Lanka is in considering the role and purview of the commissions. How much power should they have and where do you draw the line with regard to the powers they exercise? Where does the power of the minister end, and the power of the commission begin? If the dividing line is blurred or is demarcated in a manner that makes effective government impossible, then you necessarily produce the result that is visible in the Maldives. This is why the issues with regard to the 17th Amendment also have to be considered very carefully. Nothing comparable to the 17th Amendment is to be found in any South Asian constitution. This is exclusively a Sri Lankan construct. It found its way into our constitution in 2001.

The 17th Amendment throws up several issues. One is the relationship between authority and responsibility which was one of the themes that dominated the thinking of the Donoughmore commissioners when they formulated the constitution of 1931. They acted on the premise that it is totally unacceptable and indeed dangerous to have responsibility without authority. When you take for example the provisions of the 17th Amendment with regard to the national police commission, you have a situation in which the country’s president and minister of defence will not have total control over the police force.

The president according to the Sri Lankan constitution is the head of state the head of government and the commander in chief of the armed forces. But if the 17th Amendment is fully operational, and the national police commission exercises all its powers, then you have a situation in which the president can give direct orders to the army and Navy but not to the police force. In the police force orders will have to come from the national police commission. Even with regard to transfers, promotions and disciplinary control, the minister in charge of the subject will not have control. At a time of turbulence, this can result in a breakdown of law and order. The member of the executive who is charged by the constitution of the country for upholding law and order, and ensuring public tranquility, will find himself thwarted in the exercise of those powers by the fact that the commissions are the repository of authority but the minister continues to have responsibility.

This will lead to problems even in the best of times. But in times of unrest, you will have a real crisis on your hands because law and order cannot be effectively maintained. These are the issues that were thrown up in a very clear form by the current developments in the Maldives. For us the value of that experience lies in looking at the manner in which a proper balance has to be struck between constitutional principles and values, all of which have validity but which have to operate comfortably with one another. There has to be a holistic approach. Are these elements working harmoniously with one another, or is a jarring note struck by too much emphasis on some elements resulting in the disregard of certain other elements? These are not abstract issues. The Maldivian experience shows how relevant they are to contemporary constitutional and political practice.

In a situation where in Sri Lanka we are looking at structures which although formally part of the constitution, have in practice broken down, and we are now looking at ways of finding some practical solutions to these problems, the whole question of checks and balances vs effective government, and the striking of a proper balance between these competing postulates are matters that should engage the minds of the public. The experience of the Maldives can give us some valuable insights into the dangers that are to be avoided in formulating the constitutional structures that are appropriate for Sri Lanka at this time.