Strengthening institutions and organizational capacity:

The principle duties of the Legislature

Prof. Rajiva Wijesinha, MP

After the recent fiasco over the delay in providing Members of Parliament with bills they were supposed to discuss and vote on, I engaged in some study of practice here and in other countries, and also referred to relevant authorities. What became clear is that Sri Lanka has in essence taken away from Parliament its power over legislation, and the neglect the Speaker diagnosed in Parliamentary officials, claiming that he would have taken firm action if he had the power to do so, is not seen by them as neglect. They see Parliamentarians simply as lobby fodder, fulfilling their functions simply by speaking and voting for or against a Bill, with no responsibilities to actually ensure that Parliament produces fit and proper legislation.

I say this because a former Secretary General of Parliament has written a book which is supposed to set out the functions of Parliament, in which the chapter on making laws completely omits the role of Parliamentarians. Indeed she even claims that Bills are usually given to Parliamentarians after what is termed the First Reading – when they are placed before Parliament. She has obviously not understood that the First Reading takes place precisely when Parliamentarians have the Bill placed before them, and to see that as a sought of afterthought is a complete denigration of the Legislature as it is constituted, by Representatives of the People.

Executive and the Judiciary

The book in question is handed out as a sort of bible to new Parliamentarians, but I suspect no official in Parliament has actually studied it and set it against what goes on in other Parliaments. Perhaps no one there now has either the capacity or the inclination to engage in such studies, given the contumely with which J R Jayewardene treated Parliament and Parliamentarians when he imposed the current Constitution on the country, and also its several amendments, which subverted any possible principles the Constitution may have contained.

The chapter on Law Making in this simplistic book, which obviously was not vetted by a Secretary General who understood what Parliament is about, suggests that legislation is the business basically of the Executive and the Judiciary. There is no mention at all in the whole chapter of the need to consult Members of Parliament in preparing legislation. This is the purpose of Standing Order 109 which lays down that it is the duty of a Consultative Committee to inquire into and report on matters referred to it by the chairman or by Parliament, including any Bill and proposal for legislation.

Consultative Committees

Perhaps based on this sad perversion of Parliament, recently the Secretary to the President, having consulted the Legal Draftsman and the then Secretary General of Parliament, sent to Secretaries to Ministries a circular on drafting of legislation which confirms this error as to the responsibilities of Parliamentarians. I have therefore written to the Speaker to suggest that he asks the Secretary to revise this circular and make it clear that Parliament should consider legislation carefully, and that Consultative Committees should be used for this purpose, with proper notice being given to members of Bills which they should study and vote on with a due sense of responsibility.

I have also suggested that it would be useful for this purpose to expedite the amendment of Standing Orders, which it was noted after the impeachment of the Chief Justice had to be seen as a matter of urgency. However I still see no signs of a revival of the Committee appointed for this purpose, which has not met since 2010, following a row over the former Parliamentary official who was supposed to advise the Committee. Unfortunately, not realizing that the Parliamentarians sitting on the Committee had a better understanding of relevant principles than the supposed adviser, the Secretary General at the time decided that he did not want to proceed with the work, and sadly the Speaker did not take steps to ensure action. Even more sadly, I don’t think any of the other members of the Committee have urged the Speaker to convene the Committee as I have done.

Primary responsibilities

This is perhaps understandable in Opposition members, since the greater the mess Parliament gets itself into the better for them, but I am surprised that those on the government side have not understood the need for reform to ensure that Parliament functions more effectively.

In suggesting to the Speaker that we should spell out more clearly the responsibilities of Consultative Committees, I am hoping that we can expand on the provisions in Standing Order 109 about financial oversight. That is the principal business of Parliament, in addition to making laws, but at present nothing is done about this in Consultative Committees.

The Standing Order suggests that they should be involved in preparing estimates etc, and I believe it would be more healthy for the country if there were greater consultation in preparing the budget, as well as in laying down systems of control, so that each Ministry is accountable in a manner that we do not see at all today.

It is left then only to the two overarching financial oversight committees of Parliament to check on government spending.

Though I believe the Committee on Public Enterprises under the chairmanship of Senior Minister D E W Gunasekara has done more than COPE did since it was first set up, in the dark days of Jayewardene, when Parliament first ceased to be taken seriously, I must admit that there are still shortcomings, in that we have only produced one report in three years.

The Public Accounts Committee, which is perhaps more important since it looks directly at the expenditure of Ministries has thus far failed to produce a single report. I am not sure whether it is not too late to remedy the situation. But we should certainly try, by strengthening Standing Orders to try to ensure that Parliament develops systems that will enable it to fulfil its primary responsibilities.