In defence of Executive Presidency
Posted on May 5th, 2018

By Udaya P Gammanpila Courtesy Ceylon Today

It was pointed out in the previous column that allegations against the Executive Presidency are baseless. We posed five questions to the anti-executive Presidency camp. Before discussing any further, let us revisit those five questions.

If the Executive Presidency is dictatorial, why has it become the most popular governing method in the world? If the Executive Presidency is oppressive, the USA must be the most suffered nation because it has been under Executive Presidency for 229 years.  Why is there no campaign to abolish the Executive Presidency in the USA?  If this is a bad system, why is there a trend in the world to embrace the Executive Presidency leaving the Westminster System? The Westminster System was evolved to accommodate the British King in a democratic model. In absence of a King, why should we spend billons of Rupees to maintain a nominal President?

Finally, why is there not a campaign in any country, except Sri Lanka, for the abolition of the Executive Presidency? The answer to this question is misjudgment of weaknesses in the 1978 Constitution as the weaknesses of the Executive Presidency.  Hence, let us identify the weaknesses of 1978 Constitution.

There is a misconception that ours is the most powerful President in the world.  In fact, the US President is more powerful than ours.  Let me quote two examples. The Sri Lankan President can appoint only Parliamentarians as Ministers.  In other words, the President has been restricted in the selection of ministers to a pool of 225 persons chosen by the people.  However, the US President has a wide discretion in this regard since he can appoint any citizen as a minister.

The Sri Lankan President has no role in the legislative process. Any Act passed by Parliament becomes a law after the Speaker places his signature.  In contrast, an American Act does not become a law until the President places signature.  If he vetoes an Act, it should be approved with a two third majority by both Congress and Senate to become a law.

There is no campaign against the Executive Presidency in the USA, although it has the most powerful President in the world. That is because of the provisions contained in the Constitution to discipline the President. The Sri Lankan President is not accountable to anybody. He does not have to justify his decision before anybody. Hence, nobody can question his decisions. This situation has compelled the President to make stubborn decisions. In contrast, the US President is accountable to the Senate. The Senate has powers to summon and question the President.  Historical presidents such as Abraham Lincoln, Woodrow Wilson and Gerald Ford have been grilled by the Senate, challenging the rationality of their decisions.

The Sri Lankan President is not subject to judicial writ. He enjoys the immunity enjoyed by the British Queen. Although President Sirisena promised to strip this immunity, he did not do that. There is a misconception that the presidential immunity was removed by the 19th Amendment to the Constitution. The Supreme Court has ruled that the President can be made a respondent in Fundamental Rights petitions.  The only amendment made by 19A, in respect of the immunity, is constitutionalizing of the above judgment.

No civil or criminal legal action can be filed against the President. Hence, the President cannot be prosecuted even if he commits a massacre. If the first lady is in need of divorcing the President, she has to wait until he relinquishes his office. No action can be filed against any ex-president for his actions or inactions when he was in office.  Hilariously, it is applicable to the divorce cases as well.  In contrast, the US President is subject to the judiciary writ. That is why Monica Lewinsky and Paula Jones were able to file action against President Bill Clinton for sexual molestation.

Although there is an upper limit for the Cabinet of Ministers, there is no such a lower limit.  Hence, the President can be a one-man Cabinet by taking all ministries under him.  Fortunately, no President so far attempted this mockery.

If the majority of the Cabinet, including the vice President, is of the opinion that the President is unable to discharge the presidential powers and duties, he can function as the acting president. If the President contests this opinion, the Congress should decide the status of the President. There is no similar provision in our Constitution. Although there are provisions for impeachment, it was proven impractical when the Parliament attempted to impeach President Premadasa in 1991.

Powers of the President, introduced by 1978 Constitution, have substantially reduced by the subsequent amendments. The 13th Amendment transferred executive powers of the President to Provincial Cabinets in respect of 36 subjects.  The President has limited powers to intervene directly or through Governors only on special occasions.  The 19th Amendment further reduced the powers of the President by introducing a Constitutional Council which makes recommendations to the President for high posts such as superior Judges, the Attorney General and the Inspector General of Police.

It is crystal clear with the above analysis that Sri Lanka’s problem is absence of provisions in the Constitution to discipline the President.  Hence, the need of the hour is not the abolition of the Executive Presidency, but introduction of necessary provisions to control and review presidential actions by studying the Constitutions of the USA, France and Russia.

One Response to “In defence of Executive Presidency”

  1. Christie Says:

    Udaya Gammanpila must be dreaming of becoming the President.

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