Political impasse- it is the Executive Presidency, stupid!

The institution of the Executive presidency has been the subject of analysis ad nauseum by various writers, politicians and academics over the years. The chief proponent of the Executive Presidency was J.R. Jayewardene who succeeded in making it the core of the Constitution which he brought into being in 1978 after his landslide majority at the 1977 Elections where the UNP won a 5/6th majority.

The main justification he put forward for the instalation of the Executive Presidency in the scheme of Governance was that “it would not be subject to the whims and fancies of Parliament.” Since Parliament consists of the representatives of the people what it means is that the Executive President need not be accountable or sensitive to public opinion - which concept is contrary to all democratic norms.

When .J R. Jayewardene suggested the inclusion of the Executive Presidency in the first Republican Constitution of 1972, the then Prime Minister Sirimavo Bandaranaike vehemently rejected the suggestion on the basis that the Executive Presidency did not suit a country like Sri Lanka. Mrs. Bandaranaike’s farsighted objection was made despite the fact that she would have been the first beneficiary of the enormous powers that the Executive Presidency envisaged.

At the time the 1978 Constitution was being drafted N.M. Perera and Colvin R. de Silva strenuously argued against the adoption of the Executive Presidency and predicted the dangers that the country would face from the untrammeled powers of an all powerful Executive Presidency, but to no avail.

Over 30 years later the Venerable Maduluwawe Sobitha Thero took up the cry and campaigned island-wide calling for the abolition of the Executive Presidency. Maitripala Sirisena came on board with a solemn pledge to abolish the Executive Presidency in the event he was elected to office.

Yet three and a half years after January 8, 2015 we are still saddled with the Executive Presidency, albeit with reduced powers thanks to the 19th amendment to the Constitution. Despite the reduced powers that the Executive Presidency now has ,it still retains some of the obnoxious features that are at complete variance with all democratic norms.

The many conceptual criticisms of the Executive Presidency made over the years by its detractors may have been lost on a majority of the citizens of the country. Many of them may not have also realized that the institutional decay that set into many governmental agencies was primarily due to the Executive Presidency. The fact that it was under the Executive Presidency that the ethnic problem degenerated into a full blown armed conflict resulting not only in a massive loss of life but also in the draining of immense national resources is often not understood by many.

But, today, no one can be oblivious to the fact that the Constitutional crisis that has caused a political impasse is rooted in the institution of the Executive Presidency. What N. M. Perera and Colvin R. de Silva foresaw 40 years ago is being played out before our very eyes today. They predicted that a deadlock between the Executive President and the Legislature was a luxury that a country like Sri Lanka could ill afford.

Today that is precisely what is happening. President Maithripala Sirisena by purporting to sack Ranil Wickremesinghe and replace him with Mahinda Rajapakse as the Prime Minister has set himself on a collision course with Parliament. While the Constitution stipulates that the President has to appoint as Prime Minster the person commanding the confidence of Parliament , the vote in Parliament last Friday conclusively showed Mahinda Rajapakse clearly does not command the confidence of Parliament.

Article 42 (4) of the Constitution states that “the President shall appoint as Prime Minister the Member of Parliament , who, in the President’s opinion, is most likely to command the confidence of Parliament.” The President is therefore Constitutionally bound to give effect to the will of Parliament. The word “shall” in Article 42 (4) makes it mandatory for the President to do so and clearly precludes any discretion in the matter.

But President Sirisena does not seem inclined to do so, which means the country will move to crisis. With the move to cut off finances to the Prime Minister’s office and other Ministries by resolutions of Parliament, the machinery of Government is in real danger of coming to a standstill. Economists, too, have warned that the ongoing crisis is taking its toll and causing irreparable damage to all sectors of the economy.

Sri Lanka’s image as a vibrant democracy has taken a beating internationally. The then Joint Opposition shouted themselves hoarse about the depreciating rupee, but maintain a loud and helpless silence with the dollar reaching the 180 rupee mark.

A Westminster style Parliamentary democracy would not have allowed such a Constitutional crisis to emerge or grow. Any change in the Parliamentary configuration would be expeditiously decided through a no confidence vote on an incumbent Prime Minister and a new Government formed.

This has been Sri Lanka’s experience prior to the adoption of the 1978 Constitution. A good example of this was the March 1960 General Elections when a Prime Minister not commanding the confidence of Parliament was forced to recommend a dissolution of Parliament. At the July 1960 Parliamentary Elections a stable Government was formed.

The current Executive Presidential system suffers from a total lack of transparency, with no one knowing the thinking processes of a President, with his advisers and those who help him to arrive at decisions being unknown to the public. This is in contrast to a Prime Minister in a Parliamentary system who has to take decisions through a Cabinet of Ministers. All the Ministers are collectively responsible for such decisions.

Although the Constitution lays down that the President is responsible to Parliament for the due exercise, performance and discharge of his duties, there is no mechanism to make him accountable to Parliament. In contrast, the Prime Minister can be called to account by Parliament in respect of any action that he may take through a process of raising questions.

Even in such a grave situation as the one in which the country finds itself, there is no mechanism to question the President as to why he purported to appoint a Prime Minister who did not command the confidence of Parliament or, indeed, the consequences of such action whether it be on the economy or governance.

Once the dust settles, after the resolution of the Constitutional crisis, the country will have to give its urgent attention to the task of completely dismantling and abolishing the Executive Presidency. Otherwise we will be destined to suffer similar situations in the future that will continue to impede the country’s efforts to move forward.