Comprehensive constitutional change is the better option

By Jehan Perera-April 30, 2018, 12:00 pm 

The political debate on the proposed 20th Amendment needs to be considered in the national perspective. The JVP’s proposed amendment is intended to abolish the popularly elected executive presidency and replace it with a significantly less powerful presidency to be elected by parliament rather than by the people. Those in the political opposition are currently the most vocal in their opposition to the proposed amendment. Those on the government side have been more or less silent so far.

An exception has been government minister Mano Ganesan who heads the Tamil Progressive Alliance. He has said that his party which is part of the government alliance will not support the amendment. Over the past decades, it has been the view of the ethnic minority parties that the popularly elected executive presidency is better for them. It is an elected office where their votes count, and those who seek to be elected as president have to accommodate the ethnic minority positions.

The issue of the executive presidency is an ongoing subject of negotiation within the government coalition. At the level of policy, the main argument against it is that it is too powerful an institution and has been abused in the past. But there is also powerful opinion in favour of it. This is that unless the country has a single center of power, the devolution of power will lead to divisive tendencies that the system will be unable to check. The ethnic minorities too seem to prefer the continuation of the executive presidency as they see in it as a central institution that they can impact on directly through their vote.

So far no opinion on the subject has been expressed by other senior members of the government. The likely scenario is that there are calculations being made regarding the advantages and disadvantages of the abolition of the elected executive presidency to themselves and to their political parties. Invariably many of those who are leaders of the government and opposition would see themselves as potential presidential material.

NATIONAL INTEREST

When contemplating changes in the fundamental law of the country, which is what constitutional change is about, it is important that the long term and best interests of the country be looked at rather than the interests of individuals and their political parties. The problem with competitive party politics is that ambitious politicians tend to look at the short term and what is in their own interests. The danger is that public opinion will follow suit.

JVP Leader Anura Kumara Dissanayake who proposed to bring the 20th Amendment as a Private Member’s Motion is reported to have said the president would be appointed by parliament under the proposed 20th Amendment. He said that according to the draft amendment, the president would continue to be the head of state and the commander-in-chief of the armed forces, but he would no longer be the head of the government and the head of the cabinet of ministers.

The executive presidency is the single most powerful in the current scheme of governance. The president is the head of state, the head of government, the head of the cabinet of ministers and the commander-in-chief of the armed forces. The entire design of the 1978 constitution which established it, and in which it is embedded, is based on the central pillar of the presidency. Therefore, the excision of the presidency will have a major impact on the strength of the rest of the constitutional architecture.

According to the JVP leader the president’s powers are to be distributed among the cabinet, prime minister, constitutional council and independent commissions. However, the president would continue to have the powers of appointing governors of the provinces in the same manner as in the 13th Amendment. Opposing the move, SLFP Minister Nimal Siripala de Silva has said the powers of the executive presidency are vested in many areas of the constitution. He said, "If they do abolish it, they will have to bring in at least another 2,000 provisions in its place."

POTENTIAL INSTABILITY

A key feature of the proposed 20th Amendment is to transfer the powers of the directly elected president to the prime minister who is the person who commands the confidence of the majority in parliament. The recent vote of no-confidence in the prime minister shows that the prime minister’s position, unlike that of the president, is not a guaranteed one. The prime minister can be removed early in his or her term. On this occasion the prime minister survived the vote of no-confidence against him. On another occasion he might not.

By way of contrast, in terms of the present constitution, the president is virtually unassailable, and immune to being removed during his or her term of office. There was an attempt to impeach President Ranasinghe Premadasa in 1991. But the president had an arsenal of options at his disposal to neutralize his opponents, which he succeeded in doing. These included acceptance by the speaker of parliament of the motion of impeachment, a 2/3 majority in parliament, and the provision of patronage to win the hearts and minds of those who might have voted against him.

A major concern is that a country as diverse and with internal conflicts like Sri Lanka needs a single institution to which all groups, racial, religious and regional, can look to and must look to in order to have unity in diversity. There are countries that are more diverse and with more internal conflicts than Sri Lanka. They function under non-presidential systems. However, at a time when there is widespread disillusionment about the quality of political leadership in both the government and opposition, the need is to strengthen institutions, and not to weaken them. This can best be done by holistic reform rather than by piecemeal efforts.

HOLISTIC CHANGE

The government media has reported that the steering committee of the constitutional assembly will resume its meetings from May to revive the constitutional reforms process after a hiatus of about five months. The constitutional reform process has been in abeyance since late last year as the internal issues of the government and local government elections came to the fore. The process was almost stalled after the five-day Constitutional Assembly debate of Interim Report of the Steering Committee in November last year. However, it is reported that the Constitutional Assembly Secretariat was working throughout the period to incorporate the amendments that came up during the debate.

Both public opinion polls and prevalent public opinion on the street have shown that most of the population believe constitutional reform is important. From the time that the present constitution’s executive presidential system was first subject to abuse, academic and civil society opinion formers have critiqued the constitution and called for its replacement. Therefore, the popular movement to change the present constitution has a much longer history than the government’s present bid to formulate a new constitution.

The decision whether to abolish the executive presidency or reform it needs to be taken with the long term perspective of strengthening institutions in mind. The anti-Muslim riots which continued for a week and the failure of the police to act effectively to stop them and to bring the wrongdoers to justice is reflective of the continuing weakness of state institutions. Security forces personnel I have had occasion to speak to in university educational settings, where free exchange of ideas is paramount, have said that they feel vulnerable. If they do their duty under one government, they risk being punished under another government. If they do not follow orders they feel may be illegal, they risk being punished by over-powerful politicians.

For its longer term progress Sri Lanka needs strong institutions which both protect those who do their duty and also hold those who abuse their powers accountable. This cannot be done through ad hoc and piecemeal constitutional reforms. If the abolition of the executive presidency is to take place, it should be within the framework of comprehensive constitutional reform as initially envisaged by the government when it transformed the entire parliament into a constitutional assembly and appointed an all-party constitutional steering committee to lead the reform process.