Resisting dogma and enhancing the effectiveness of the Executive Presidency - 11 March 2010

by Rajiva Wijesinha

Amongst the many sticks used to beat me and the Liberal Party of Sri Lanka now is the claim that we have abandoned our commitment to the abolition of the Executive Presidency. Martin Lee, the Hongkong Lawyer who allowed himself to be used by Basil Fernando, the strange Sri Lankan who in effect runs the Asian Human Rights Commission, talks about the 2005 manifesto of President Rajapaksa, forgetting that, while the Liberal Party felt that that manifesto was infinitely better than any alternative, we ourselves were not committed to it. He ignores the fact that the latest manifesto, with which we are proud to be associated, makes it clear that the Executive Presidency will continue, though it will be modified.

Interestingly, Rohan Edrisinha, the Centre for Policy Alternatives’ distinguished constitutional expert who left the Liberal Party in 1991, claimed that his reason for supporting Sarath Fonseka’s candidacy was that the main question for Sri Lankans was the abolition of the Executive Presidency. His support however continued even when General Fonseka made it clear that he had no intention of abolishing that position straight away, were he to be elected to it.

Indeed the manner in which former Human Rights activists, from the National Peace Council and CPA for instance, flocked to the Fonseka banner, made it quite clear that morality in their case ran only skin deep. The characteristic Jehan Perera blush, when I asked whether he had been propelled into this ridiculous position by his Western backers, suggested I was not far wrong, though that is not of course evidence.

On the issue of the Executive Presidency, it should be noted that I have consistently argued that the problem is not the Presidency itself, but the concentration of power in a single individual. This is a phenomenon that has developed over the years even under a Westminster system. Bagehot in the 19th century bewailed the fact that the sovereignty of Parliament was under threat from the power of the Cabinet, and in the 20th century all political commentators noted that the Cabinet itself was no longer a body in which the Prime Minister was the first among equals, rather he was now totally dominant.

I have frequently pointed out that the least successful governments we had were those of 1970, under the Westminster model, and of 1977, where the Presidential system was introduced. The reason was the overwhelming power of the government in Parliament, two thirds in both cases. The reason the second was infinitely worse, apart from its grotesque extension, was the entrenchment of that two thirds majority through the prevention of crossovers and bye-elections.

The reason that, on balance, I personally prefer a Presidential system is indicated in ‘Ideas for Constitutional Reform’, from which Martin Lee quotes selectively, with no understanding of my description of the positive features of the American and French constitutions. Westminster allows for concentration of power, because unlike when Montesquieu wrote, it institutionalizes the twinning of the legislative and the executive. A Presidential system however demands a separation of powers, which President Jayewardene totally rejected, even though he had claimed in his manifesto that that was what he wanted, and though it was a crucial element in the constitutions he claimed were his models. The failure of A J Wilson to discuss this anomaly, in his woeful apologia for Jayewardene entitled The Gaullist Constitution of Sri Lanka, is what first made me doubt his integrity as well as his academic capacity when it came to political advantage.

Chanaka Amaratunga, whose affection for British practices was deeper than mine, did initially believe in a return to Westminster, but he went the whole hog and suggested someone like a monarch, because he believed that the Head of State should not merely be a rubber stamp for a Prime Minister. In time however he modified his view because, when he wrote Gamini Dissanayake’s manifesto for the 1994, and advocated the abolition of the Executive Presidency, Mr Dissanayake insisted that there be alternatives instead, to be placed before the people at a referendum. He had told Chanaka that he was welcome to campaign for abolition, but that he himself would work for a modified Executive Presidency and that his views would triumph. I should note that the suggestions Chanaka introduced for limiting the powers of the President should be a model for such an institution.

It was on this manifesto that Srima Dissanayake stood, but with the UNP itself under its revitalized traditional leadership rooting for her defeat, Chandrika Kumaratunga was elected, and promptly forgot about the abolition of the Presidency until the time came for extending her tenure in power. Rohan Edrisinha, and Dr Saravanamuttu, who had advocated her cause and hoped to influence her, had their hopes dashed, which did not prevent them rallying round General Fonseka a decade and a half later.

Doubtless they will continue on this track, but the country must move on, and look at political principles, not dogma based on blind opposition to particular politicians. What is generally agreed is that power should not be absolute. However, limitations on power should be based on valid constitutional principles, which means we should look at practices elsewhere.

Obviously we should not blindly follow external practices which may prove unsuitable for this country, but equally we should not pride ourselves on idiosyncrasy for its own sake, as was practiced by President Jayewardene, who boasted of doing things his way, and spawned two violent insurrections, a monstrous electoral system, an obsequious Supreme Court (v. Justice Rodrigo’s judgment on one of the Referendum cases) and repeated government sponsored attacks on minorities.

Careful consideration of practices elsewhere, weighed in terms of our own needs, will allow us to develop a saner electoral system, a better way than the confused and confusing 17th amendment of limiting the absolute authority of the Presidency with regard to crucial appointments, a second chamber that will allow for better consultation without excessive delay, without replicating the arbitrary and unrepresentative nature of the House of Lords, which was the problem with the Senate we had initially.

In the process we need I believe to stay with the Presidential system, that has proved so successful in recent years, and has contributed more to development than Westminster did. However we must also remember that an incompetent Executive President can be a disaster, which is why we should strengthen accountability and justiciability.