The campaign to abolish the Executive Presidential system
JVP delegation with former President
Although the campaign to abolish the Executive Presidential system was first initiated by late Ven. Sobitha Thera, the present campaign is being spearheaded by the JVP. According to media reports, the reason for the JVP to take up the campaign is to fulfill pledges made by past and present Presidents; a reason that appears to be too far etched to be taken seriously because no one knows whether such pledges were made to benefit the Presidents or the People.
The campaign is to abolish the Executive Presidential system and hopefully replace it with a Parliamentary system. Independent Sri Lanka (then Ceylon) was governed for thirty years under a Parliamentary system until 1978, when an Executive Presidential system was introduced. While both systems are based on the immutable principle of representative democracy, the question that needs to be explored is which system would protect the interests of the People best at the hands of their elected representatives.
FUNDAMENTAL DIFFERENCES
The fundamental difference between the two systems is that while Legislative and Executive powers of the People are exercised separately by two separate organs of government elected separately by the People in a Presidential system, both Legislative and Executive powers are exercised by a single organ in a Parliamentary system. The other issue of concern is which system is more stable.
Since Presidential systems are based on the principle of “separation of powers”, Parliament/Congress elected by the People is responsible for exercising the Legislative powers of the People, and a separately elected Executive President with an Executive Cabinet is responsible for exercising the Executive powers of the People. This is the system in the USA. Under such a system, the possibility exists for the two organs of the government to be from the same party or from different political parties.
In a Parliamentary system, on the other hand there is no separation of Executive and Legislative powers of the People – both are exercised by a Parliament elected by the People. Although strict separation of Executive and Legislative powers does not exist under Parliamentary systems, a Cabinet of Ministers headed by a Prime Minister is responsible for exercising Executive powers. Thus, Parliament becomes the single instrument of State power; a power that is inevitably exercised by a single political party or political formation. This was the system in Sri Lanka until 1978 and has been in existence in the UK for centuries
ISSUE OF STABILITY
Since Presidential systems are based on two separately elected organs of government, Presidential systems by their very nature are more stable than Parliamentary systems because at least one organ of government, invariably the Executive, is stable at any given time. Thus, even if the Legislature is reduced to a minority status and is unable to form a government, the Executive would continue to function; an experience that Sri Lanka is familiar with and which Germany experienced recently. On the other hand, the fact that there is only one organ of government under Parliamentary systems, the stability of the system is solely dependent on the stability of the political party forming the government. Such instability is inherent in the case of coalition governments as it was with the National Government formed between the United National Front for Good Governance (UNFGG) and the United People’s Freedom Alliance (UPFA), and in the case of multiparty governments. For instance, “between the years 1948-’72, there was only one out of eight governments which successfully completed the five-year term (Silva Dhanushka, Daily FT, January 30, 2019).
THE CHOICE
The question before the public therefore is under which of the two systems would the interests of the People be better protected; (1) would it be a system where the Executive and Legislative functions of the People’s sovereignty are separately exercised by separately elected bodies, as in a Presidential system, even if they are from the same or different political parties, or (2) a system where both Executive and Legislative powers of the people are exercised by a single elected body, as in a Parliamentary system, which boils down to such powers being exercised by one political party or formation. In the case of the former (1) if the Executive and the Legislature are politically similar the situation would be no different to the latter (2) even under separation of powers. However, if they are from different political parties, each organ is compelled to negotiate and develop consensus for the functioning of government as was the case with the 19th Amendment. The decision whether to abolish the Executive Presidential system or not ultimately boils down this choice.
THE SYSTEM in SRI LANKA
The current political system in Sri Lanka is a mix of the two systems described above, i.e., the Parliamentary and Presidential Systems. The President as the Head of the Executive and directly elected by the People is responsible for exercising the Executive power of the People under Article 4 (b), while the Legislative power of the People is exercised by Parliament elected by the People at a General election as per Article 4 (a). The uniqueness of the Sri Lankan system, however, is that although the President is the Head of the Executive his Cabinet of Ministers including the Prime Minister is drawn from Parliament. Consequently, the members in the Cabinet exercise both executive and legislative functions as in a Parliamentary system.
This is in violation of the fundamental principle of separation of powers as recognized in the Constitution Under the circumstances, not only is conflict of interest inevitable, the very opportunity for Members of Parliament to be involved in the Executive tempts them to seek positions in the Cabinet at any price for the power and prestige that goes with being a Cabinet Minister. Thus, the arrangement by its very nature encourages corruption with Cabinets being formed to reward political loyalty and to consolidate political power. Commenting on the system in Sri Lanka, Dr. N.M. Perera stated:
“The Anglo-Saxon Parliamentary system and the American Presidential system are two alternative forms of government.
The two cannot be mixed and the hotchpotch that he has presented is not workable” – (PERERA. K.K.S., Daily Mirror, November 17, 2018)
In the opinion of Dr. N.M. Perera the present system is not only “not workable” because of the mix of two completely contrasting systems of government but also is even more challenging when the Executive and the Legislature represent two different ideologies. Such situations have existed in the past and exist currently in Sri Lanka and in the US. However, such differences should not be viewed as challenges but more as opportunities because it compels both branches to negotiate and compromise on behalf of their respective electorates, thereby advancing true representative democracy because outcomes reached represent a larger segment of the voting public. However, when both organs of government represent similar political ideologies, although workable, becomes less representative of the voting public. Consequently, workability comes at the expense of representative democracy.
It is clear from the material presented above that if the Presidential system is to be made effective, either the arrangement of involving Members of Parliament in the Executive has to be abandoned because it violates the principle of separation of power stated in the Constitution, or separation of powers as embodied in Article 4 of the Constitution has to be amended.
The Sri Lanka Supreme Court has repeatedly endorsed the cardinal principle of separation of power in several judgments, the most recent being the 19th amendment, by stating that no power can be transferred from one organ of government (Executive or Legislative) to another without the consent of the People at a referendum. However, although the current practice where Members of Parliament perform the dual role of being in the Executive and the Legislature does not amount to a full transfer of power, it distorts the principle of separation of power. Therefore, whether the current arrangement impacts not only on the sovereignty of the People but also on constitutionality of how they are governed, is in doubt. Such doubts could be cleared by making the Executive and the Legislature independent of each other thereby contributing significantly to political stability.
RECOMMENDED AMENDMENTS to the SYSTEM
The intention of the recommendations presented below is twofold; (1) To institutionalize separation of power in keeping with Article 4 of the Constitution to ensure greater political stability and minimize opportunities for corruption by separating the organs of government; And (2), to empower the People at the Local Government level thus making devolution more effective.
The Center should be structured in a manner that separates Executive and Legislative functions. Separation of power is achieved by NOT involving Members of the Legislature (Parliament) in the Executive. The President as the Head of the Executive should be assisted by a Cabinet responsible to Parliament of not more than 25, made up of individuals who are NOT Members of Parliament, thus ensuring that Parliament is not associated with the Executive. And if they are Members of Parliament they are required to sever their connections with the Legislature as in France.
Parliament should be constituted into 25 (equal to the number in the Cabinet) of Oversight Committees to vet the candidates proposed by the President to the Cabinet, and to regularly summon Members of the Cabinet for review of their programs, performance and continuity of service. The existing Constitutional Council should be abolished and its functions should be handled by the appropriate Oversight Parliamentary Committees.
At the periphery, Executive and subordinate Legislative powers relating to devolved subjects should be devolved to Local Governments (LG) such as Pradeshiya Sabhas (PS), Municipal and Urban Councils. Members of the LGs should be constituted into an Electoral College to elect the District Council. Members of Parliament associated with the District who should be ex-officio Members of the District Council. The District Council should be responsible for coordinating the activities of the LGs associated with the District The District and Divisional Secretaries should be responsible for implementing Line Ministry functions both at the District and Divisional levels. In addition to the Line Ministry activities, the activities of the District Council should be coordinated by the District Secretary as the Chief Accounting officer for the District, and supported by an all-island Public Service Commission.
CONCLUSION
The current structural arrangements both at the Center and the periphery are organized to further the interests of the political elite at the expense of governance and the interests of the public. The factors that support this contention is the constitutional provision to appoint the Cabinet of Ministers “from among Members of Parliament”. This arrangement is unique to Sri Lanka and specifically provided to enable the leadership to secure political power in both organs of government notwithstanding the inevitable corruption that the arrangement fosters. As for the periphery, the devolution of power to Provincial Councils is another political arrangement initiated to pamper the political elite in the periphery that has no connection with the People because it is far too remote from the People to make a difference to their livelihoods. Therefore, it is imperative that the structure at the Center and at the periphery be Constitutionally amended to improve governance in a manner that serves the interests of the People.
Despite the warning given by Dr. N.M. Perera that the Presidential system was a mix of contrasting systems and therefore is a “hotchpotch” and “not workable” it remains so today and has survived four decades without being challenged for its unconstitutionality. The answer is to amend the system by implementing an arrangement that endorses separation of powers by separating the President and his Cabinet from Parliament but not to abolish it, because the alternative of a Parliamentary system not only requires Parliament to be the sole instrument of State power, but also the fact that its stability depends on the stability of the political party that exercises such unbridled power. The choice boils down to whether the People’s sovereignty expressed as Executive and Legislative powers of the People are safer when such powers are exercised by two separate organs of government or exercised by one central organ of government.
Devolution to Provincial Councils has also proved to be unworkable because these Councils are too remote from the People who are supposed to be the beneficiaries of that power. The principle instead should be an arrangement wherein power is devolved to the Local Government units which are closest to the People. There are nearly 300 plus such units made up of nearly 250 Pradeshiya Sabhas, and the Municipal and Urban Councils. These Local Government units have been delivering the goods and services needed by the People in the absence of nonfunctioning Provincial Councils clearly demonstrating the absolute irrelevance of the latter’s existence. Therefore, Executive and Legislative power should be devolved to these Local Government units and their activities coordinated by District Councils as explained above.
What is attempted herein is to explain the systemic unworkableness of the current structural arrangements in place as the reason for the non-performance of governance and corruption in the country. Simply abolishing the Executive Presidential system will not bring about the needed transformations. What is needed is to correct the contradictions that currently exist, and reform the system with focus on the People as the beneficiaries .
By Neville Ladduwahetty
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