Abolition of the presidential system requires a referendum
Posted on December 16th, 2015

by Neville Ladduwahetty Courtesy Island

One of the main planks of the 100 day programme of President Sirisena was the abolition of the presidential system of government. The main driving force initiating the change from a Presidential to a Parliamentary system was Ven. Sobitha, who together with a band of highly committed concerned citizens came to the conclusion that abuse of power was inevitable under a presidential system because the system vests all Executive power in one individual under provisions of separation of powers that recognize that Legislative, Executive and Judicial powers are separate and equal. They were convinced that it is only by abolishing the whole system and transferring Executive powers from an individual to a Prime Minister and a Cabinet of Ministers under a Parliamentary system that the exercise of Executive power could be rationalized.

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The question though is whether Ven. Sobitha and those with him realized the need for a referendum to bring about such a radical transformation. The change from a Parliamentary to a Presidential system was brought about in 1977 without a referendum because the 1972 Constitution did not contain the provision for a referendum. Consequently, it was possible to institute the change without seeking the opinion of the People albeit it would have been in keeping with true principles of Democracy had they done so. This however, is not the case with the current Constitution. The need for a referendum as elaborated in Article 4 is an inherent feature of the franchise of the People. Furthermore, franchise is also a constituent component of the sovereignty of the People as contained in Article 3. Therefore, it could be concluded with certainty that a transformation that is as radical as abolishing a Presidential system in preference to a Parliamentary system cannot be instituted without seeking the consent of the governed.

Political parties in general consider it a risk to seek the opinion of the People through referenda because of the uncertainties of outcomes. This was clearly evident in the case of the 19th Amendment. The original draft of the 19th Amendment attempted to transfer considerable powers from the President to a Prime Minister and a Cabinet of Ministers. This attempt was foiled by the Supreme Court when it ruled that several of the proposed amendments would need the approval of the People at a referendum based on the principle that Article 4 must be read with Article 3.

LESSONS from the 19th AMENDMENT

In the case of the 19th Amendment the determination of the Supreme Court was “that transfer, relinquishment or removal of a power attributed to one organ of government to another organ or body would be inconsistent with Article 3 read with Article 4 of the Constitution. Though Article 4 provided the form and manner of exercising of the sovereignty of the people, the ultimate act or decision of his executive functions must be retained by the President”. Based on this determination the Supreme Court found certain Articles in the 19th Amendment to qualify for a 2/3 approval of Parliament and the approval of the People at a referendum because these Articles provided for the President to “transfer” executive power to another “organ or body” – the Prime Minister. These determinations caused the Government to delete those particular provisions that attempted to “transfer” executive power from the President to another “organ” rather than risk submitting them to a referendum.

Whether the drafters of the 19th Amendment were expecting to get by hoping that the Supreme Court would interpret that Article 4 has no bearing on Article 3, and therefore rule that a referendum was not needed as ruled by a previous Court on the 13th Amendment that determined that Article 4 was independent of Article 3, is anyone’s guess. Whatever the case may be, the lesson to be learnt from the determinations made by the Supreme Court in the case of the 19th Amendment was that Article 4 should be read with Article 3. Therefore, drafters who are planning to abolish the Presidential system and introduce a Parliamentary system that is radically different both in form and substance should expect the Supreme Court to rule the need for a referendum in addition the 2/3 approval by Parliament. Not to do so would amount to challenging the competence, judicial integrity and the credibility of the Supreme Court.

There is however the possibility of another explanation for the form and content of the final version of the 19th Amendment. That is, that the drafters being constitutional experts were fully aware that some of the amendments proposed would need a referendum. By submitting the draft of the 19th Amendment in the form they did the expectation presumably was that the Supreme Court would make the unpalatable determinations rather than advising the Government that the current Constitution makes it almost impossible to provide for the desired amendments without reference to the People. Factoring into this the reluctance of Governments to risk outcomes of referenda the net effect of the 19th Amendment has been for the President to retain most of its original powers except for limitations on term limits, the disassociation with the creation of Independent Commissions and a few other amendments. The intention of the entire exercise may well have been to retain as much power as possible in the President while creating the appearance of dilution of Executive power. Whether the process was intentional or not, is conjecture.

ABOLITION of PRESIDENTIAL SYSTEM through a CONSTITUENT ASSEMBLY

The print media report that Parliament is to be converted into a Constituent Assembly with a view to formulate a new Constitution. This would require the repeal of the existing constitution and its replacement with a constitution that is based on a Parliamentary system of Government. Whatever approach is adopted it finally has to be presented in the form of a Bill “for the repeal and replacement of the Constitution”. Such an attempt has to comply with the provisions of Article 120 (a) of the current Constitution.

Article 120 (a) states: “in the case of a Bill described in its long title as being for the amendment of any provision of the Constitution, or for the repeal and replacement of the Constitution, the only question which the Supreme Court may determine is whether such Bill requires approval by the People at a referendum by virtue of the provisions of Article 83”.

Judging from the determination made by the Supreme Court in the case of the 19th Amendment that a referendum would be needed for the “transfer” only some Executive powers of the President to another “organ”, the Prime Minister, it could be concluded that the Supreme Court would rule that a referendum would be an absolute necessity since it is a case of repealing and replacing a Presidential system that is based on separation of powers with a Parliamentary system where all power is concentrated in the Parliament. The fact that the two systems are as different as chalk and cheese is all the more reason that approval of the People is needed to effect such a radical change.

Another compelling reason to seek the approval of the People at a referendum is because Article 3 is an entrenched Article meaning any revision to Article 3 would require 2/3 approval of Parliament and a referendum. Article 3 states: “In the Republic of Sri Lanka sovereignty is in the People and is immutable. Sovereignty includes the powers of government, fundamental rights and franchise”. The “powers of Government” referred to in Article 3 are spelt out separately in Article 4 (a) to (c) as Legislative, Executive and Judicial. A transformation from such a system of Government to one where all 3 powers are concentrated in the Parliament is too radical for the change not to be approved by the People at a referendum. It is reported that realizing the seriousness of the transformation Ven. Sobitha too had wanted the endorsement of the People to effect the change from a Presidential to a Parliamentary system of Government.

Furthermore, as stated above, sovereignty of the People in the current Presidential Constitution “includes powers of government, fundamental rights and franchise”. On the other hand, under a Parliamentary system sovereignty of the People would be exercised by Parliament if the 1972 Constitution is to be the guide. Such a dramatic change would amount to the total surrender of the People’s sovereignty to an elected body that often is a coalition that inevitably is elected by only a section of the People. Since the sovereignty under the current Constitution includes fundamental rights and franchise it means the People have some degree of control over some aspects of their sovereignty, which would not be the case if sovereignty is totally surrendered to a National State Assembly as it was in under the 1972 Constitution. This above all else should warrant holding a referendum in order to give the People the opportunity to freely give their consent before a change in the system of Government is instituted.

Yet another compelling reason is that transferring Executive power from a President elected directly by the People to an “organ” such as Parliament without a referendum would be violation of the precedent set in the determination of the 19th Amendment. Under a Presidential system it is the President who exercises “the executive powers of the People, including the defence of Sri Lanka”, whereas in a Parliamentary system it is the Parliament that exercises Executive powers as well as all other powers of the People including the sovereignty of the People. This would amount to violating the sovereignty of the People as presently set out in the current Constitution. The concept of vesting Executive powers in an individual directly elected by the People was deliberately adopted in order better serve the interests of the People by providing stability to at least one branch of Government at any given time.

CONCLUSION

Attempts are being made to repeal the existing Presidential system and replace it with a Parliamentary system of Government. What is being explored by the Government is how such a change could be brought about without undergoing the risk of a referendum. What is being overlooked is that according to the Universal Declaration of Human Rights Article 21 (3): “The will of the People shall be the basis for the authority of government…..”. Therefore, it is imperative that the will of the People is sought at a referendum if the intention of the Government is to change the present form of Government to a Parliamentary system.

 

12 Responses to “Abolition of the presidential system requires a referendum”

  1. Lorenzo Says:

    Please DO NOT abolish it.

    SL presidents have been FAR BELOW EXPECTATION BUT way better than parliament.

    Take even the worst case Maru Sira. He has his problems. But who is doing all the BAD things? The parliament!!!
    Maru Sira is the ONLY sensible man in this govt.

    IF parliament becomes supreme then it will be TOTAL CHAOS. MPs (most of them UNEDUCATED thugs) will be jumping from this side to the other everyday.

    UNTIL the military takesover the country, clean it, impose a HOME GROWN CONSTITUTION and hand oback to civil rule, SL should keep presidency.

    Run-nil will most likely become the NEXT PRESIDENT because the blue camp is DIVIDED. That has to be stopped by other means. Not by removing presidency. Don’t throw the baby with the bath water. Throw the bath water keep the baby.

  2. Susantha Wijesinghe Says:

    HELLO NEVILLE !!

    I pressed the ‘ refresh button ‘ and here is what I see.

    MS at the Presidential Elections, only did not stand on his head, to virtually, swear that he will ABOLISH the Presidential Powers, as soon as he comes in. He had a Pied Pipers following, chanting the SLOGAN with all hands raised. One notable personality was Ranil. He threw in his bit, by chanting that Presidential Powers will be transferred to the Prime Minister, at some stage, and there would be a Prime Minister with Presidential Powers, transferred upon to him. Election over, it was Veni Vidi Vici. No signs of ABOLISHING PRESIDENTIAL POWERS, nor PP being transferred to the PM, whose appointment was highly questionable as being most unconstitutional, in the history of the Legislature.

    The Henchaiyas who sang the Chorus, were missing the tune and was K FLAT. Apparently they went into hibernation. One Venerable Priest departed without achieving his resolve.

    MS, kept on promising that the Presidential Powers were to be abolished imminently. He was an Actor on the Stage, keeping his Audience…the people of the Country spell-bound with utter Grama Sevaka DECEPTION. Yet no signs of even a plausible move to achieve the Promise. Then came another Election. ””’to be continued””’

  3. Dilrook Says:

    People’s preference is very clear – they don’t want executive presidency.

    At least 3 presidents came to power promising to abolish executive presidency. However, two of them ran for a second term and one even ran for a third term!

    In 1994, Chandrika promised to abolish executive presidency by July 15, 1995. As a result, she won 62.5% of the vote. In 2005, after another pact with the JVP, Mahinda promised to abolish executive presidency. He too failed after winning. Sirisena also promised to abolish executive presidency and won the election in 2015. None of them could have won the election had they not promised to abolish it. Even Sirisena is not honest in declaring his intention to abolish it. Absolute power awarded by the executive presidency corrupts anyone.

    If a referendum is held, at least 60% of the people will support abolishing executive presidency now.

    However, the problem is Sirisena wanting to keep it to himself and his family thereafter. He is already grooming his son and oldest daughter to take it after him. With a budget of over 9.6 billion rupees ($70 million) in direct allocation and with unlimited use of foreign trips (Sirisena has already made 8 foreign trips for 11 months), helicopter rides, goods and services, vehicles and other facilities (allocated from other budgets) for the executive president, his family and in-laws, who will want to give it up!

    The government knows very well it needs a referendum. That is why they avoid it. Ultimately, they will blame the constitution and the need for a referendum and keep executive presidency. People have been fooled always with one statement before the election and the opposite after the election.

    Abolishing executive presidency will be one of the biggest election winning slogans in 2019 as well. And in 2024 thereafter.

  4. Nanda Says:

    Actually it is a good idea to keep power sharing, that is keeping a President from one party and the PM form the opposition party.
    Otherwise , the way it is going, many Hitler’s will appear, steal and disappear.
    It is good to have some fighting.

    If executive Presidency is abolished ( it is also good) then there should be a “people elected commission” to control these criminals.

  5. nilwala Says:

    Dilrook and others who claim that the People want the Exec Presidency abolished:

    IF THIS CLAIM IS TRUE, it is because the People do not understand that a purely Parliamentary system of government is MUCH WORSE than a Presidential system in the way it concentrates power on a PM, who can in fact run FOR LIFE if he has a CAPTIVE CABINET. There will be NO SEPARATION OF POWERS. As it is we can see how the UNP has for years acted in lock-step because of the way RW controls the Working Committee. Now the UPFA Chief (MS) and the SLFP Chief (MS) who are one and the same, has/have also learnt to do the same. But for the moment at least we have been spared ALL the powers being transferred to the PM.

    WE NEED A SEPARATION OF POWERS TO PREVENT A PM OR PRESIDENT GOING OUT OF CONTROL. WE NEED AN EXEC. PRESIDENT IN ORDER TO PROTECT NATIONAL SECURITY THE WAY NO PRIME MINISTER CAN.
    THE WAY THE CURRENT SET-UP IS BEING RUN, IT IS THE MINORITIES WHO ARE CALLING THE SHOTS, AND CBK’S OBJECTIVE OF MAKING THE MAJORITY A MINORITY HAS BEEN ACCOMPLISHED.
    LET THE EXEC. PRESIDENCY STAND, BUT THIS “UNITY GOVERNMENT” IS A MIRAGE with the Minority TNA as Leader of the Opposition, and the Majority of MPs in the Opposition being side-line and silenced.

  6. Dilrook Says:

    Executive presidency does not allow for separation of powers because it is the President that appoints the Prime Minister at his will. Executive presidents never appoint an able prime minister. The moment the prime minister goes against the president he/she can appoint another. Therefore there is no separation of powers.

    The president also appoints the Chief Justice and other supreme court justices.

    In the absence of executive president the Cabinet can exercise executive powers. Countries with parliamentary rule are more stable than countries with executive presidents.

    The national security argument was valid for a limited time when the parliament was weak. However, it soon proved otherwise. More damage has been done to national security by the executive president in 1983, 1987, 1988, 1989, 1995, 2002, 2003, 2004, 2011-14.

    It was no accident Chandrika, Mahinda and Sirisena promised to abolish executive presidency and won the election.

  7. SA Kumar Says:

    So we need presidential system than only whoever in presidency election can promise to abolish executive presidency and win the election !!!

  8. Fran Diaz Says:

    So long as the threat of Tamil Separatism/terrorism is there, the Exec. Presidency will remain.

    INDIA TRAINED THE LTTE IN TAMIL NADU at the time ultra-west JRJ was in power during the Cold War times. The JVP was active during those times. The MR govt & the armed forces used the Presidency to get rid of the terrorist outfit, the LTTE, almost 30 yrs later.

    So long as the Tamil Caste Wars are existing in Tamil Nadu (over 15 Million Tamil Dalits) and threatening Lanka with Eelam, the Lanka Presidency will stay.

    So long as Lanka lays welcome mats to Tamil Dalits of TN with Tamil language in place and no caste on birth certificates,
    plus losing Caste through conversions to other religions (mainly Catholicism, Islam and some to Buddhism),
    the Lanka Presidency will stay.

  9. Susantha Wijesinghe Says:

    continued…Then came another Election. Many representatives were elected to Parliament. Some RATS who were not elected, entered Parliament through the Kitchen. Nevertheless, President is still in a quandary as to the abolishing of the Executive Powers of the Presidency. Craftiness and Deception comes in again. President presents a * PAPER * to Parliament to ABOLISH the Executive Powers of the President, ONLY AT THE END OF HIS TERM, ie in another 4 years time. Everybody is HAPPY. So PRESIDENT SIRISENA WILL BE EXECUTIVE PRESIDENT TILL THE END OF HIS TERM ONLY.

    He beautifully pulled the wool over the Voters eyes once again. More of this will keep coming, as he keeps globe trotting in and out. EIGHT TRIPS WITHIN 11 MONTHS is a simple thing, as His Eminence sees him as a simple man.

    SO, EXECUTIVE POWERS OF THE EXECUTIVE PRESIDENT, AND THE EXECUTIVE PRESIDENT WILL LINGER FOR THE NEXT 4 YEARS OR SO, TILL THE NEXT ELECTION FOR **SIMPLE PRESIDENT**ORNAMENTAL PRESIDENT**DECORATIVE PRESIDENT**POWERLESS PRESIDENT.** Let us not get stressed on this subject anymore.

    I have my doubts that Prime Minister Ranil will ever get a chance of becoming an * Executive Prime Minister*.

  10. Lorenzo Says:

    The problem is the PERSON.

    IF we can remove Maru Sira and FORCE a FRESH presidential election, GR can contest and WIN. Then no one will want to change.

  11. Fran Diaz Says:

    No single Sinhala Buddhist leader will be allowed to survive long in Lanka. This is because of Tamil Separatism/terrorism
    which has been globalised via the Tamil Diaspora and churches.

    This is mainly because our govts over time have accommodated illegal Tamil migrants from Tamil Nadu ever since the Dutch & the British brought over a Million and Half of Tamil Dalits as Indentured Labor mainly for tea, tobacco plantations.

    Sri Lanka has become the main outlet for over 15 Million Tamil Dalits of Tamil Nadu. They are escaping their 3,000 yr old Tamil Nadu Caste System. Floods and famines add to the problems there.

    Lanka has laid the welcome mat to illegal Tamil migrants with no caste on birth certificates, Tamil language in place, free education & health care, etc.

    Unless these aspects are reversed through removal of the Tamil language as a N&O language of Lanka, the strife will continue.

    Also, consider governance of Lanka through a Central Committee of 5-8, savvy, well educated and proven loyal people.

  12. Cerberus Says:

    Mr. Ladduwahetty has pointed out a very relevant piece of information. Unfortunately for Yahapalanaya group these legal niceties are never a problem. If they wish to do something they just do it with no regard to the law. My3 has broken the law so many times during the last year with no repercussions that he is now becoming bolder by the day. MR would not have lost in August elections if MY3 a sly slimy traitor did not buckle the elections by illegally declaring two days before the election that he will not appoint MR as Prime Minister even if he wins. The reason he did it because he had intelligence reports which said that MR party is going to win a majority of the seats (113) at the elections. He also illegally nominated people who were not in the gazetted list to the parliament and illegally removed the party secretaries and appointed his own people to be yes men.

    See: http://www.lankaweb.com/news/items/2015/08/25/i-wrote-that-letters-sacked-secretaries-because-i-received-intelligence-reports-that-upfa-is-on-the-verge-of-winning-president-%E0%B6%BD%E0%B7%92%E0%B6%BA%E0%B7%94%E0%B6%B8%E0%B7%8A-%E0%B6%BD/

    ​One whole year has gone by with nothing achieved other than dragging people to the FCID and the Presidential Commision. I am sure the people of the country do not care if some people in the MR govt took some money since they achieved so much to build up the country. The Yahapalanaya has taken such a lot of money in the first few months. This was done mainly by Arjun Mahendran a Singaporean brought in by RW who is supposed to have done insider trading for a massive amount. He seems to have skipped the country. Now they are busy handing over the military, the govt and the legal system to the West who will be only too happy to break it up as they have done in many other countries. The very people like France which was telling Sri Lanka to negotiate are now telling they have to kill the terrorists. Who is going to check on their war crimes.

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