• The question of the ethical limits of conscience and democratic governance  

BY Sumudu Chamara The Yugadanavi power plant deal has already caused too many controversies, and it is discussed in many contexts such as national security, sovereignty, the power sector’s future, and corruption among politicians. While the political arena seems to have become divided over the advantages and disadvantages of the deal, the Government’s main decision making body, the Cabinet of Ministers is also divided. While the contents of the deal itself are debatable, the manner in which it was passed at the Cabinet of Ministers has also been questioned and it has been raised before the Supreme Court (SC) as well. It was questioned by three prominent Cabinet Ministers – Energy Minister and Cabinet Co-Spokesman Udaya Gammanpila, Industries Minister Wimal Weerawansa, and Water Supply Minister Vasudeva Nanayakkara – who, in a submission to the SC in support of the petitions filed against the Yugadanavi deal, said that the Cabinet paper with regard to the Yugadanavi deal was not presented to the Cabinet and was not discussed at the Cabinet. They also made several more statements about the alleged adverse outcomes of the said deal.  Meanwhile, President Gotabaya Rajapaksa, on 27 December, expressed disapproval of the three ministers supporting the petitions.  Addressing a meeting with newspaper editors, the President stated that the Cabinet has a collective responsibility, and pointed out the importance of every member of the Cabinet working as a team. He opined that any member of the Cabinet wishing to legally challenge a decision made by the Cabinet must do so after quitting the Cabinet. At the meeting, the President also cited a judgment given by SC Judge, Justice Mark Fernando in a case involving the late Lalith Athulathmudali, Gamini Dissanayake, and former President Ranasinghe Premadasa.  In response to the President’s remarks, Ministers Gammanpila and Nanayakkara said that they are not willing to resign, and that they opposed the Cabinet decision on the Yugadanavi deal for the betterment of the country.  Speaking to the media, Gammanpila said that the President can remove them anytime, and that they revealed the truth to the country about the Yugadanavi deal and to the Court, taking and knowing full well that risk. He cited the SC Judgement the President referred to, and opined: “The SC stated that if Cabinet ministers did not get an opportunity to voice their opinion at the Cabinet, they can do so outside. It is that right granted by the SC that we exercised.”  When Nanayakkara spoke to the media, he talked about the collective responsibility the President mentioned.  “The Cabinet’s collective responsibility is a topic that is being discussed these days. What it means is that when we are in the Cabinet, we have to abide by a decision taken by the Cabinet whether we agree or not. That is a policy in England. We have a much older practice, which includes convocation, discourse, and consensus.”  He added that he was of the view that according to the said policies, everyone should discuss the pros and cons of matters collectively and reach an agreement that is beneficial to the country.  Collective responsibility  According to President’s Counsel (PC) Singhanathage Tharapathi Jayanaga, even though the Cabinet’s collective responsibility is recognised in many countries, it is not always legally recognised, and is sometimes a mere tradition. According to him, in both cases, governing systems have assigned a certain value to this concept and tradition. Speaking to The Morning, he explained: “The Cabinet’s collective responsibility stems from the Westminster system of the parliamentary system of governance, which started in England. There are several conventions attached to this system. Conventions are traditions, and they are not stated in legislation. In Britain, there is no written Constitution; what they have is what is called an unwritten Constitution.  Therefore, even though some laws are unwritten, they are followed. Collective responsibility means that when the Cabinet takes a collective decision, all the ministers who are the members of the Cabinet, even though they may privately disagree with such a decision, must support it publicly. When they come out of the Cabinet room, they have to support that decision. For example, if a Bill is presented in Parliament, based on that decision, members of the Cabinet who do not like that decision will have to nevertheless vote. Also, when that piece of legislation is challenged in court, all the members of the Cabinet are expected to support it. Such practices come from the concept of the Cabinet’s collective responsibility.”  He stressed: “The accepted tradition is that if certain members of the Cabinet openly object to a Cabinet decision, they are obliged to resign from their position in the Cabinet.”  He noted that there are several countries such as Finland where collective agreement has been established constitutionally and that when it comes to countries like Canada, even though collective responsibility is not legally identified, it is strictly followed. He further said that in some countries and in some situations, when a highly controversial matter is discussed in the Cabinet, members of the Cabinet are permitted a “conscience vote”, where they are allowed to vote according to their conscience and are not forced. This method, according to him, also allows them to come out and discuss.  Advantages and disadvantages  According to Jayanaga, irrespective of the legal recognition or value as a tradition, collective responsibility within the Cabinet has advantages and disadvantages.  Speaking of the need for collective responsibility, he explained: “One reason is to avoid conflicts. When the public knows that there is a debate going on in the Cabinet, it weakens the Government. The expression of agreement is an expression of loyalty to the President. Formerly, it was loyalty to the Prime Minister.  Also, collective responsibility expresses solidarity and strengthens the Government, or the ruling party. This is based on the notion that the Executive ought to appear as a collective entity, and display political strength. If the people of the country feel that the members of the Government or the Cabinet are debating and are going in different directions, the people will lose faith in the Government.”  With regard to the disadvantages of the concept of collective responsibility within the Cabinet, he added: “This tradition forces ministers to agree to and publicly support Cabinet decisions against their conscience, which is a very difficult exercise. Also, it hinders political debates, especially internal debates. If a minister has to say something, an opportunity should be given to say it. In a way, debates and discourses are a hallmark of democracy. Also, when there are disagreements within the Government, negotiating collective agreements can be very difficult. In addition, it depends on mutual agreement and unity within the Cabinet.”  History  The concept of collective responsibility has been discussed in Sri Lanka on several occasions in the past. While several ministers such as the late Gamini Jayasuriya have resigned due to disagreements with decisions made by Governments and Cabinets, there have been instances where ministers were expelled due to the same reason. The matter has also been discussed in the SC.  One notable case that discussed collective responsibility within the Cabinet in its verdict is the 1991 Gamini Dissanayake vs. M.C.M. Kaleel and Others case, which the President and Gammanpila also cited. The case was heard by SC Justices Fernando, Kulatunga and Wadugodapitiya.  The case was filed after a group of Parliamentarians, including United National Party (UNP – the then ruling party) Ministers Dissanayake, Athulathmudali and G.M. Premachandra, tried to impeach the then President Premadasa over a number of alleged violations of the Constitution and concerns regarding his suitability to perform his duties. After a UNP committee recommended to expel several MPs of the party, including the said three ministers, they sought the assistance of the SC regarding their expulsion. In this case, the SC took up eight petitions together (all filed by expelled MPs against the expulsion).  In the verdict, the SC said that disagreement among members of the Cabinet must first be raised within, before being ventilated in public, and that collective responsibility and confidentiality are not artificial rules but practical norms essential for proper functioning. It also noted that that obligation exists quite independent of express provisions in the party rules.  The SC held that the expulsion of six petitioners was invalid, while the expulsion of two petitioners, namely Ministers Athulathmudali and Premachandra was valid as the duo had deceived the Cabinet by supporting Premadasa in the Cabinet.  The SC verdict further read: “The Cabinet is charged with the direction and control of the Government, and operates on the basis of collective responsibility. Deception completely undermines loyalty, trust and confidence, vital for its functioning… Members of democratic institutions owe a duty to be frank and candid with their colleagues and the public.  “Secrecy and deception are not conducive to the working of such institutions, whose affairs must be characterised by openness, honesty and fair disclosure. Thus judges function in open court; people know what they decide, and why, and if they disagree, why they disagree, and what each has decided. Proceedings in Parliament too are generally open to the public; secret or unpublished laws and regulations are anathema to a democratic society.  “In regard to the Executive Government too, there is a growing global trend towards the recognition of the citizen’s right to the freedom of information. Democracy is not furthered by practising economy with the truth, but rather by full disclosure: the truth, the whole truth, and nothing but the truth, subject to statutory provisions for confidentiality in the public interest. A MP who lies to or otherwise deceives the Parliament is guilty of a serious breach of privilege.”  Violation of collective responsibility Senior Advisor to the Justice Minister and former Bar Association of Sri Lanka President, Udaya Rohan De Silva PC explained the nature of the Cabinet’s collective responsibility, and what actions, including legal actions, a violation of the same attracts. He explained: “If a member of the Cabinet violates the Cabinet’s collective responsibility, a disciplinary inquiry can be conducted, and actions can be taken against those accused of such. The actions that can be taken vary depending on the nature of the violation of the Cabinet’s collective responsibility. If it is a matter that can be considered serious, they can even be expelled. If those who face such disciplinary actions are unhappy about it, they can even seek the court’s assistance.  “Other actions against disciplinary actions that can be taken before going to court are limited to procedures that take place within the Cabinet. If the President wants, he/she can reprimand the members in question. If further actions are sought, such members can be issued a show cause letter, demanding that they state the reasons as to why actions should not be taken against them for their failure to abide by the Cabinet’s collective decision, which is an opportunity for them to explain their side of the story.  “However, if the explanation is found to be unacceptable, the President can, as he/she is in charge of the Cabinet, take necessary action. Several actions can be taken in this situation as well. A committee can be appointed to look into the alleged violation of the Cabinet’s collective responsibility, and recommend what steps should be taken against the Cabinet members in question. Based on those recommendations also the President can take action.” As an example of actions taken by the Cabinet against the violation of the Cabinet’s collective responsibility by a member of the Cabinet, De Silva noted the removal of former Justice Minister and present Government MP Dr. Wijeyadasa Rajapakshe PC. “In an earlier instance, Dr. Rajapakshe went against a Cabinet decision and criticised a Cabinet decision in the media. Due to that, the Cabinet decided that he should be removed. A committee was appointed and thereafter the committee was of the view that Rajapakshe should be removed from the portfolio he held. However, it was not possible to remove him from the Parliament because he had a right to be in the Parliament to represent the people, and he therefore remained as a MP,” he said, adding that it is a classic example of actions against members of the Cabinet by the Cabinet. With regard to the incident mentioned by De Silva, Rajapakshe had stated that he was accused of violating the collective responsibility of the Cabinet by revealing that the agreement to hand over the Hambantota Port to China was in violation of the Constitution.  Speaking further, De Silva said: “In the recent incident (involving Ministers Gammanpila, Weerawansa and Nanayakkara), the President has categorically stated that even though this incident is a violation of the Cabinet’s collective responsibility, he is not going to remove the ministers in question, which means that the President has already taken that decision.  “As far as Cabinet decisions are concerned, however, they, the Cabinet of ministers, are the ones who take a decision regarding matters such as a Bill before such is presented in the Parliament. At the moment, it is not possible to seek the court’s assistance regarding not being given an opportunity to express opinions within the Cabinet, because the President has stated that he is not going to take any action against the three ministers in question.” De Silva stressed that collective responsibility is extremely important when it comes to the decisions made by the Cabinet, and explained the situation with regard to expressing opposition: “Whether a particular matter was discussed before a decision is made, as well as who is telling the truth or is lying about such a matter, are different matters. Whether a member of the Cabinet was given an opportunity to express his/her view is also a different matter.  “All these matters are things the members of the Cabinet can discuss within the Cabinet and come to a conclusion. Once they take a decision to proceed with a Cabinet decision, they cannot go back. That is part of the collective responsibility. Before that point, they can present their opinion and argue as much as they want. However, once a decision is made, they have to abide by that decision, and going against such after a decision is made, is a violation of the Cabinet’s collective responsibility.” Speaking of traditions pertaining to the Cabinet’s functions, De Silva said: “The members of the Cabinet must be given an opportunity to express their opinions; otherwise it is impossible to run a Cabinet. Whether they used that opportunity is a different matter. If a member of the Cabinet expresses a different opinion outside the Cabinet without using that opportunity, it is tantamount to a violation of the Cabinet’s collective responsibility. If a member of the Cabinet expressed his/her opinion in other places without doing so in the Cabinet, it shows a lack of collective responsibility.”  When questioned about the legal situation pertaining to the Cabinet’s functions relating to its collective responsibility, he said that the Constitution is the supreme law, and that no other law can go above that. He added that the Constitution has clearly stated what the responsibilities of the Cabinet are. According to Article 43 (1) of the Constitution, the Cabinet is charged with the direction and control of the Government and is collectively responsible and answerable to the Parliament. There is no debate about the fact that to govern a country, a Government needs to be stable. However, to ensure democracy, a Government also needs to be flexible to allow different opinions. However, Sri Lankan Governments are not the best example for Governments that allow or heed different opinions.  All elements of the Government acting like one could be sometimes beneficial to the country as far as political stability is concerned. However, when being a collective becomes a responsibility that has to be fulfilled regardless of conscience, and when decisions are made by a few on behalf of everyone, a country tends to be unstable, because such practices do not represent or support all the relevant parties, especially the public.