ABOLITION OF EXECUTIVE PRESIDENCY: IS IT WARRANTED?
Posted on November 7th, 2016

W.A.De Silva Courtesy The Daily Mirror

We have experienced during the past regime of former President, that absolute power vested in Executive Presidency has caused opportunity for absolute corruption and abuse of power. As a result many critics have pointed out that abolition of Executive Presidency is absolutely necessary in the process of the formation of a
new Constitution.

There is no mechanism within the present Constitution to ensure the principle of Separation of powers and balance of power which is necessary for securing of adequate checks and balances among Legislatures, Executive and Judiciary in the process of performing their responsibilities. It appears that power vested in Executive Presidency has caused an opportunity for the occupant of that position to encroach Legislature and Judiciary.
In addition the immunity vested in Executive Presidency has created an absolute power that President’s actions cannot be challenged at a Court of Law of this country Thus Article 35 of Chapter VII states that while any person holds office as President, no proceedings shall be initiated or continued against him in any Court of Law or Tribunal in respect of anything done or omitted to be done by him either in his official or
private capacity.”

The immunity of the President above referred to has been controlled to some extent under 19th Amendment to the Constitution as follows provided that nothing in this paragraph (above quoted) shall be read and construed as restricting the rights of any person to make an application under Article 126 against the Attorney General in respect of anything done or omitted to be done by the President in his
official capacity.”

The immunity so vested in Executive Presidency clashes with the principles of Rule of Law. In that context it is necessary to curtail it further, in order to substantiate that the Executive Presidency is not
above the law.

Any demand from the masses for abolition of Executive Presidency was not reflected at the last Presidential and Parliamentary Elections except those who launched a campaign against the Rajapaksa regime. In fact there were some pledges given by main political parties that contested at the above elections mainly the UNP, that they would abolish the Executive Presidency when they came to power. The present incumbent of the Presidency too had pledged repeatedly that Executive Presidency would be abolished and that he had no intention whatsoever to hold the position for the second time. It may be his personal intention, but it is not the intention of the general masses of this country. It is not the intention of SLFP where the present incumbent is the President. Those pledges and public statements of politicians who contested could be considered as political strategies to provoke people against MR and his regime at the elections. The prime objective of all these pledges, statements and allegation was nothing but provocation of masses. Some of those allegations are yet to be proved at a Court of Law.

Nevertheless, there are hundreds of incidents which cannot be set aside as sheer allegations, where abuse of power to the hilt by MR and his regime has been clearly demonstrated. Whilst pretending he is innocent due to the fact that allegations levelled against him are yet to be proven, he knows he could hide himself under the cover of immunity as per Article 35, even if those allegations are established.
Abuse of power, corruptions as well as distinguished achievements by persons who occupied the Executive Presidency are related to the persons concerned. The occupant of that position is, responsible for both abuse of power, corruptions and the achievements in his capacity as President. In that context abolition of Executive Presidency cannot be the solution for corruptions and abuse of power committed by the occupant of Executive Presidency.

The magnitude and multiplicity of corruptions, abuse of power and distinguished achievements by persons who held the Executive Presidency from JR Jayewardene up to present incumbent Maithripala Sirisena seemed varied from person to person depending on the level of integrity and leadership style upheld by person concerned, in the process of performance of his duties and responsibilities. Any person with low integrity could be inclined to abuse of power and corruption for self benefit. On the other hand unique achievements of the person who occupies Executive Presidency depends on self confidence and the effectiveness of the leadership style he practised in the process of responding to challenges he has confronted. In other words it is a matter of effectiveness of challenge and response. Both traits above referred to namely integrity and effective leadership style are connected to the individual who occupies Executive Presidency.

Effective leadership is not possible if adequate power required for the same is not vested in the Executive Presidency. In that context abolition of Executive Presidency is not the appropriate solution for the corruptions and abuse of power committed by the persons who occupied that position. This is what exactly masses had done at the last Presidential Election by defeating and removing MR from that position. It does not mean that masses have totally forgotten and disregarded distinguished achievements he made being Executive President.

The formation of a national government connecting two major parties together for the first time in parliamentary politics, disbanding hostile partisan politics and thereby setting up of a stable government are considered distinguished and remarkable achievements which would have been impossible under Parliament Democracy sans Executive Presidency. The leadership held by Prime Minister under the Constitutions prior to 1978 was based on the principle Primus inter pares” where leadership is to be shared with his equals in the Cabinet and with the political party which he represents.

In case of a coalition government this kind of leadership without leadership of Executive Presidency could fall into an ineffective status due to pulls ad pushes caused by political parties who had become partners of the coalition government.
Executive Presidency has created a leader over and above the principle of Primus inter pares” who needs not attached to petty partisan politics in the performance of his duties and responsibilities. However, being President of SLFP, the present incumbent of Executive Presidency has reluctantly fall into the trap of partisan politics. In order to reap the full benefit of that position it is absolutely necessary to amend the constitutional provisions to prevent person who hold that position getting attached to a particular political party once elected as Executive President although this mistake has been done by all of past Presidents from the inception up to date continuously.

Executive Presidency created under 1978 Constitution may be considered as an effective measure to overcome shortcomings that we have experienced in our constitutions prior 1978. In view of above, what exactly needed is to amend the presidential immunity vested in Executive Presidency, in order to make it answerable to the Parliament as well as Judiciary as and when such necessity arises in the event of abuse of power and corruptions. Although this has been under 19th Amendment to the constitution its scope should further be enlarged. It is also necessary to make Executive Presidency detached from petty party politics in order to justify and substantiate he is the leader of whole nation.

– See more at: http://www.dailymirror.lk/article/ABOLITION-OF-EXECUTIVE-PRESIDENCY-IS-IT-WARRANTED–118786.html#sthash.T4K7UIEj.dpuf

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