Executive Presidency: Can it be abolished in a hurry?

With no party enjoying a majority in the Parliament, now it’s a favourable  alignment of forces in the political landscape for such a constitutional change and the JVP seems to have struck it at the most opportune time. Our political leaders in most instances have acted in their own interest and they are sure to do so this time as well, but it will incidentally do some good for the country if the result is going to be abolition of the executive presidency. 

By Gamini Abeywardane

Abolition of the executive presidency has surfaced in the political debate again.  Since early nineties the matter has been brought up many times in election promises -- first by Chandrika Kumaratunga in 1994, then by Mahinda Rajapaksa in 2005 and 2010, and lastly by Maithripala Sirisena in 2015. Yet for all, none of them kept their promises and instead displayed their duplicity by trying to enhance their power or stick to it as long as possible.

The only minor deviation from this trend was visible when Maithripala Sirisena agreed to prune down some of the presidential powers by establishing independent commissions and imposing a two term limit for a person to hold the presidency, through the nineteenth amendment. However, it became possible as it happened hot on the heels of the 2015 presidential election which was fought on the broad theme of curtailing authoritarian trends and introducing good governance. It was introduced within a few months of the election and there was hardly any time for a change of mind by the head of state.

All that is good evidence for one to believe that any changes to the executive presidency has to be introduced only in the first part of one’s term and towards the latter part any incumbent President will try to find ways and means to consolidate his position and come back to power for a second term. However, this is the first time that the idea of abolishing the presidency has come to the centre-stage towards the end of a government’s term and has also become the subject of discussion among the three powerful political leaders of the country representing different political groups -- Maithripala Sirisena, Ranil Wickremesinghe and Mahinda Rajapaksa.

Hidden consensus

JVP which brought forth the idea in the form of a twentieth amendment proposal has been in the forefront pushing the matter forward and discussing it with all relevant stakeholders and the Tamil National Alliance. Although the UNP had initially promised to abolish the executive presidency, towards the latter stages they did not display much enthusiasm to do so. However, with doubts over Ranil Wickremesinghe’s ability to win a presidential election and division of opinion in the party on the selection of a presidential candidate the UNP has now begun to look at the idea favourably.\

This matter has special relevance and advantage for Mahinda Rajapaksa because by virtue of the nineteenth amendment he is effectively debarred from contesting for a third term. Thus, the only avenue available for him to become politically powerful again is through a prime ministerial system and that is why he has told the JVP leader Anura Kumara Dissanayake that he is in favour of abolishing the executive presidency although he is not ready to support the proposed twentieth amendment in its present form.

The joint opposition led by Mahinda Rajapaksa has not so far reached any consensus on a presidential candidate although Gotabhaya Rajapaksa has indicated his willingness and intensified his campaign. There seem to be a lot of confusion there as Rajapaksas themselves appear to be divided on the issue while the US citizenship issue of Gotabhaya is still not resolved.  

Then for Maithripala Sirisena the idea can be much attractive as his position is weakening day by day with little or no prospects for wining a second term. On the contrary he may stand the chance of becoming the non-executive head of state in return if he supports the abolition of the executive presidency. It would have been possible for him to think of a second term if the political coup he staged with Mahinda Rajapaksa had succeeded and there would have been some understanding between the two to that effect, but now the scenario has completely changed and that is why the proposed discussions between Sirisena and Rajapaksa on this matter has still not materialized.

In this situation the proposal is much likely to receive the support of the former President Chandrika Kumaratunga, the TNA and all civil society groups that have been clamouring for abolition of the executive presidency. However, the TNA will not simply back it and naturally they will expect a solution to the northern problem as well through the same constitutional amendment which finally has to be approved by the people at a referendum. It can be a new opportunity to resolve the northern issue because the same amendment can include a devolution package and establishment of a Senate.

It can also be an opportunity to modify or abolish the much maligned PR system of elections. Opposition will come from minority political parties if there is any attempt to abolish the PR system, but they may agree to a reasonable modification to the electoral system with 30 or 40 percent PR and the rest on a first-past-the-post system.

In the current situation a return to the Westminster system of government can be personally advantageous to all the main political leaders of the country. However some of the vocal politicians currently in the joint opposition may not like the idea because most of them do not have strong political parties that can independently survive in a parliamentary system of government. Instead they seem to be more comfortable with hanging on to a strong individual in the form of an Executive President.

Opportune moment

With no party enjoying a majority in the Parliament, now it’s a favourable  alignment of forces in the political landscape for such a constitutional change and the JVP seems to have struck it at the most opportune time. Our political leaders in most instances have acted in their own interest and they are sure to do so this time as well, but it will incidentally do some good for the country if the result is going to be abolition of the executive presidency. 

Moreover such a move will also ensure that the political power will remain in the hands of these two or three groups and with the traditional political families. The continuance of the presidential system with a two term limit will result in new individuals and new groups capturing the political power in the country. Therefore, it is very likely that all these three groups will act in such a way to retain the political power among themselves.

Time constraint

However, the question remains that with presidential elections being due in November whether the limited time available will be sufficient to effect such a major political change. It will not be possible to scrap the executive presidency without modifying the electoral system as the PR system and executive presidency are closely interconnected. The other issue is another set of constitutional proposals which may also aim at abolishing the executive presidency while also addressing all other relevant issues including devolution of power has been already developed through the Constitutional Assembly and is now before the Parliament.

In such a scenario it is difficult for the major political parties to look at the issue of abolishing the executive presidency in isolation while ignoring the issues of devolution of power and electoral system. If such an amendment is to successfully go through the passage of Parliament it should receive the blessings of the minority communities and the small political parties as well.

In this context it is difficult to imagine that the proposal, however attractive it may be to major political players, will gather the necessary momentum to become a reality within the available short period before the presidential election. In such a situation, it can be a priority for the next government and the set of constitutional proposals that have been developed through the Constitutional Assembly can be the basis for such a change. (The writer can be contacted on gamini4@gmail.com)

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If Constitutional Council is bad, what is better?

By Gamini Abeywardane

A debate over the constitutional council was triggered by President Maithripala Sirisena’s angry remarks criticizing the Constitutional Council following his disagreement with it over some key judicial appointments. Some people who are not happy with it for whatever reasons, have gone to the extent of even calling for its abolition.

But the million dollar question is: What then is the solution? Are we to go back to the eighteenth amendment giving all powers to one person?  Having seen the ugly side of the eighteenth amendment all major political parties agreed to introduce the nineteenth amendment and it is unlikely that there will be any compromise on that.

Maithripala Sirisena

However, following the recent debate on the Constitutional Council in the Parliament some politicians have now proposed a reduction in the number of parliamentarians in the Constitutional Council, while some others have gone to the extent of proposing completely an independent body without any political party representatives in it.

Original draft

In this regard, it is worthwhile to re-examine the original Nineteenth Amendment Bill that was presented in the Parliament in March 2015 and the debate that followed.The original bill proposed a ten member Constitutional Council consisting of the Prime Minister, the Speaker, the Leader of the Opposition and seven other members who were not supposed to be Members of Parliament.
The seven independent members were supposed to be: One person appointed by the President; five persons appointed by the President on the nomination of both the Prime Minister and the Leader of the Opposition; and one person nominated by agreement of the majority of the Members of the Parliament belonging to political parties or independent groups other than the respective political parties or independent groups to which the Prime Minister and the Leader of the Opposition belong, and appointed by the President.

The bill also spelt out that the seven persons so appointed should be persons of eminence and integrity who have distinguished themselves in public or professional life and who are not members of any political party. In short, the idea was as far as possible to depoliticize the process of appointing members of all the independent commissions operating under the Constitutional Council.

The unfortunate thing was these provisions were vehemently opposed by members of the Opposition who demanded a council with a majority of Members of Parliament, perhaps because they were against the inclusion of civil society members due to reasons best known to them.

Dinesh Gunawardena

Opposition members Dinesh Gunawardena and Vasudeva Nanayakkara at the Committee Stage debate strongly opposed the idea of having a majority of civil society members in the Constitutional Council and instead wanted seven out of its ten members to be Members of Parliament.

Vasudeva Nanayakkara

Amidst these objections it was difficult for the government to obtain the required two-thirds majority to pass the amendment and as a compromise it was agreed that out of the seven members only three members should be from outside the Parliament.

If not for this situation, the Constitutional Council would have had a set of distinguished people from outside the Parliament as the majority of its members resulting in a depoliticized Constitutional Council. It is rather ironic that the very people who were against the appointment of independent members are now asking for reconstitution of the Constitutional Council to include more independent members.

Mechanism to prevent deadlock

Then there is a need to remedy the situation which led to the current deadlock in appointing the President of the Court of Appeal. Such inordinate delay in making vital appointments can erode the confidence of the people in the system and therefore it is necessary to have a reasonable mechanism to avoid a deadlock arising from a disagreement between the Constitutional Council and the President.

Another allegation made by the President is that the Constitutional Council has not given any valid reasons when it rejected the names of some of the judges proposed by him for promotion to the higher judiciary. There had also been augments to the effect that in a democracy these processes should be transparent and people have a right to know the reasons for such rejections.

But it should also be noted that promotions in any organization are not a matter of right for the employees, but to some extent a matter of discretion on the part of the management and it’s more so when people are promoted to high positions. Judges of superior courts and other key officials in the government like the Attorney General, the Inspector General of Police also fall into this category.

Then, how practical it is to give reasons publicly for rejecting some nominees? One may argue in favour of such transparency, but disclosure of one’s unsuitableness may trigger unwanted public discussion over these appointments while also causing damage to persons whose names have been rejected.

Such discussion could be very much like allowing public discussion on the correctness of judicial decisions and the end result could be hampering the smooth functioning of the system itself. Key persons in the country publicly criticizing these appointments will erode the people’s confidence in the system.

Public discussion of such matters may be common in the US and some countries in the West,but in our country it could be treated as prejudicial to the smooth functioning of the court system particularly in the context of the culture in our country.

Seniority and promotions

A certain minimum number of years of service will be necessary for a promotion or appointment to akey post. However, seniority alone should never be the criterion for appointments or promotions in any institution, be it in the judiciary, the state sector or the private sector. Seniority has to be considered along with other factors such as competency, integrity and educational qualifications. If seniority alone can be the only criterion promotions can be almost automatic and there will not be any need for the Constitutional Council or the President to get involved in such appointments.

The signs are that the ongoing process to introduce a new Constitution will take longer than anticipated. However the current deadlck with regard to some key appointments have to be resolved without delay.

The best option now is for all political parties to agree without delay and introduce the same provisions with regard to the Constitutional Council contained in the original nineteenth amendment bill. That will ensure a depoliticized constitutional Council which will include seven independent members who are not politicians, so that spirit of the nineteenth amendment as envisaged by those who advocated good governance will be retained.

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