By Neville Ladduwahetty

One of the pressing questions before the nation is whether Sri Lanka should be governed under an Executive Presidential system or a Parliamentary system of government. Sri Lanka was governed under a Parliamentary system from independence up to 1977. From 1978 until 2015 Sri Lanka was governed under an Executive Presidential system. In 2015 the 19th Amendment reduced the powers of the President that had existed under the Executive Presidential system of 1978 and granted more power to the Prime Minister and Parliament. Thus the three options facing the nation are: (1) To restore the Executive Presidential system of 1978 (2) Continue with the existing system where the executive powers of the President are curtailed and (3) Revert back to a Parliamentary system.

The campaign to revert back to a Parliamentary system was initiated by late Rev. Sobitha and a dedicated band of civil society individuals. The primary compulsion for change was of their belief that the Executive Presidential system by its very nature where all executive power vested in one individual is prone to corruption and abuse of power. Advocates of this proposition never explored institutional mechanisms adopted by other countries to minimize corruption and contain abuse of power or its impact on devolved powers, within the framework of a unitary state. Instead their approach was to get rid of the entire system because of their belief that it was beyond redemption. Therefore, there is an urgent need to explore the pros and cons of each of these two systems of government.

The parameters within which such an exploration should be undertaken are: (1) The reality that future governments would either be coalitions or ones that would enjoy marginal majorities; (2) Given the reality of (1) above, how separation of Executive and Legislative branches, meaning an Executive President and Parliament, function under each of the two systems; and (3) The impact of each system on devolution within a unitary framework.

How these parameters would impact on political stability of the government, upon which depends human development and the territorial integrity of the State, both of which are primary concerns, are addressed below.

POLITICAL STABILITY

The Executive Presidential system incorporated in the 1978 Constitution is founded on the principle of separation of powers, albeit not as strictly as in the USA. Consequently, the President as the head of the Executive is elected nationally and functions separately from the Parliament which is responsible for the exercise of Legislative functions. This feature of a separation of powers enables the Executive branch under the President and his Cabinet of Ministers to administer the executive functions of the State without interruption even if the Parliament has to be dissolved for one reason or another. The weakness in this system however is that if the President and the majority in Parliament represent two politically divergent ideologies implementing a common program presents problems, as occurred in the US under the Obama administration, wherein the President was from the Democratic Party and the majority in Congress was Republican. If, on the other hand, the President and the majority in Parliament represent the same political party the situation is similar to what exists under a Parliamentary system because the Prime Minister and his Cabinet of Ministers and the majority in Parliament would be from the same political party or political formation.

Under a Parliamentary system on the other hand, since the Prime Minister and his Cabinet of Ministers and Parliament are all from the same political party with a majority in Parliament, Executive and Legislative functions would be carried out by the government in power. If such a majority party is a coalition and for one reason or another such a government ceases to enjoy a majority in Parliament, both the Executive and the Legislative branches would cease to exist, and fresh elections are unavoidable. This weakness that is inherent in Parliamentary systems is the primary cause for political instability due to the absence of two vital branches of any government. Opportunities for such weaknesses to manifest themselves are particularly strong during coalition governments.

What is evident from the material presented above is that if the current political formation in Parliament functioned under a Parliamentary system and it failed to forge a stable coalition government it would have no option but to call for fresh elections. The experience in UK under the coalition government of Conservatives and Liberals was so unworkable that fresh elections were inevitable. Similarly, Germany did not have a government for nearly six months due to their inability to forge a coalition government. On the other hand, under a Presidential system however unstable the government is, at least the executive branch under the President would continue to function and the administrative functions of the State would continue to operate. This is the advantage Executive Presidential systems have over Parliamentary systems.

DEVOLUTION UNDER the TWO SYSTEMS

The 13th Amendment under the Presidential system mirrors the separation of executive and legislative functions at the center in regard to the devolved subjects. The legislative powers relating to devolved subjects are exercised by the elected Chief Minister and the Provincial Council, while the Executive functions are exercised by the Governor appointed by the President, thus extending the executive powers of the President to the provinces. This makes the Governor the agent of the Executive President in the province. This arrangement makes it possible for the Governor to exercise executive functions in the province even when Provincial Councils cease to function for whatever reason such as what occurred in the Northern and Eastern Provinces during the armed conflict.

Under a Parliamentary system where executive and legislative powers are exercised by the political party in power in Parliament, the arrangements in the provinces would mirror the arrangements at the center, ONLY if executive and legislative powers relating to devolved subjects are exercised collectively by the Provincial Councils. Such an arrangement would make Sri Lanka a federal State because the provinces would be independent of the center within its sphere of influence in respect of devolved subjects (K.C. Whear, Modern Constitutions). Having a person bearing the title of Governor, but without executive powers, would also amount to creating a federal State.

If Sri Lanka is not to be a federal State it is imperative that executive and legislative powers are exercised separately. Since there cannot be two separate systems, one at the center and a completely different system in the province, it must follow that the system at the center and in the provinces should be based on separation of powers if Sri Lanka is not to become a federal State.

PREFERRED SYSTEM

The current arrangement under the 19th Amendment wherein executive power is shared between the nationally elected President and an elected Prime Minister and a Cabinet of Ministers is proving to be totally unsatisfactory. The unworkability of the current arrangement is evident almost on a daily basis, judging from the lack of consensus on fundamentals between the President and the Prime Minister; a fact that could be compounded by either the weakness in the structural arrangement of sharing executive power or by the ideological differences between the two. Whatever the reason, the current arrangement wherein authority and responsibility relating to executive power are shared is a model that is seldom used as an administrative arrangement for the simple reason that it does not work, because it is similar to arrangements that attempt to share sovereignty.

The preferred model is one where executive authority is exercised solely by the President with the assistance of a Prime Minister and a Cabinet of Ministers and responsible to Parliament as it was under the 1978 Constitution with appropriate amendments to contain tendencies for abuse of power. However, it is imperative that executive actions are monitored and scrutinized independently by Parliament under arrangements such as Oversight Committees of Parliament with power and chaired by the members of the Opposition in Parliament in order to ensure diligent scrutiny.

CONCLUSION

The call for the abolition of the Presidential system was a knee jerk reaction to the abuse of power inherent in the system. Accepting the reality that all systems have positive and negative features scraping one system for another is not prudent. Instead a more prudent approach is to address the weakness of a system while retaining its positive features. Therefore, the preferred system should be one where the separation of executive and legislative powers is clear and distinct together with institutional safeguards to contain the exercise of disproportionate power.

An arrangement that best satisfies such a condition is the Presidential system, because separation of powers are distinct unlike in a Parliamentary system where separation of powers is blurred because both functions, executive and legislative, are exercised by the government in power. Furthermore, because of this distinct separation of powers under Presidential systems at least one branch of government could function at any given time, thus ensuring greater stability than under a Parliamentary system where stability is dependent on the survival of the government.

Separation of powers under Presidential systems enables executive powers relating to devolved subjects to be exercised under the authority of the Executive President, thus ensuring the unitary character of the State. If the unitary character is to be retained, it is imperative that executive powers are exercised separately in the provinces. On the other hand, under Parliamentary systems, since executive and legislative powers are exercised jointly at the center by the government in power, separating them in the provinces would mean that the systems in the center would be different to that in the provinces. Such contradictions are unworkable. If such contradictions are to be avoided under Parliamentary systems, it would be necessary for executive and legislative powers in the provinces to be exercised by the Provincial Council, thereby mirroring the arrangement at the center. This would make Sri Lanka a federal state because the provinces would be independent of the center within their spheres of devolved executive and legislative powers. Therefore, it is imperative that the Presidential system is retained because it has the necessary inherent attributes to prevent Sri Lanka from becoming a federal State.

The level of corruption and the degree of discord under the current arrangement of sharing executive power between the President and Prime Minister should convince the nation of the need to scrap it. If abuse of power is the compelling reason for abolishing the Presidential system, advocates of the Parliamentary system seem oblivious of the fact that abuse of power exists now and could exist under Parliamentary systems as well, since both executive and legislative powers are exercised by the government in power. The better safeguard is to separate the powers so that one branch could monitor the other under strict institutionalized arrangements, as in other countries.

At the end of it all, the choice as to the system of government would be decided by the personal interests of the political leaders and not by which system would serve the interests of the people. This had been Sri Lanka’s history; a history that is bound to repeat once again much to the disappointment of the nation. The nation should unite to introduce a system that ensures political stability and territorial integrity in which human development could prosper.