By C.A.Chandraprema Courtesy The Island

We are now awaiting the results of what will hopefully be Sri Lanka’s last presidential election. There are 35 candidates contesting this presidential election with a ballot paper over two feet long for a position that has no power at all. Today, Sri Lanka’s supposedly executive presidency has less power than the nominal President in India. In India as in Sri Lanka it is the President who has the power to summon, prorogue or dissolve parliament. The Indian president is constitutionally required to act in accordance with the advice of the Cabinet. However no court of law can inquire into whether he was in fact acting in accordance with the advice given to him by the Cabinet.

After the 19th Amendment in Sri Lanka, the President is barred from dissolving Parliament at his discretion before the lapse of four and a half years. Prior to the 19th Amendment, a great part of the President’s power lay in the fact that his actions could not be challenged in courts. However the 19th Amendment has made it possible to challenge actions taken by the President by way of a fundamental rights application. In October last year, the President dissolved Parliament and the governing party went to courts and got the dissolution annulled. With the restriction on the dissolution of Parliament, one of the key powers that made the President the main repository of political power in the country has been done away with.

According to Article 43 of the Constitution as amended by the 19th Amendment, it is the President who will determine the number of ministries and the subjects and institutions that are to be assigned to those ministries. He may, only if he deems it necessary, consult the Prime Minister in doing so. However, when appointing individual MPs to hold these ministries, the President is mandatorily required to consult the Prime Minister. After the Cabinet is formed in this manner, the President may at any time change the assignment of subjects and functions and the composition of the Cabinet. Article 43 is silent on the question whether the President is required to consult the PM when he changes the assignment of subjects and functions and the composition of a Cabinet that has already been formed.

Presidential powers removed

However, the wording of Article 43(2) seems to suggest that in appointing MPs to be Ministers, the President cannot avoid consulting the Prime Minister whether it be before the Cabinet is appointed or afterwards. Certainly when it comes to removing ministers who have been appointed, Article 46(3) which was introduced by the 19th Amendment states that they can be removed by the President, only on the advice of the Prime Minister. Logically you can’t replace a minister without removing the incumbent. Hence Articles 43(2) and 46(3) taken together means that the President can neither appoint nor remove a Minister without the Prime Minister’s approval.

Before the 19th Amendment repealed and replaced Chapter VIII of the Constitution, under the old Article 47, the President could sack the Prime Minister at any time he wished.  When the PM ceases to hold office, the Cabinet also stands dissolved. However after the 19th Amendment, under the new Article 46(2), the Prime Minister ceases to hold office only if he (a) resigns his office by a writing under his hand addressed to the President; or (b) ceases to be a Member of Parliament. There is now no provision for the President to be able to sack the Prime Minister. The only way that a prime minister can be removed upon a new President taking office is to prove that the PM does not have a majority in Parliament.

Before the 19th Amendment, it is the President who made all the important appointments such as Supreme Court and Appeal Court judges, the Attorney General, the IGP, The Elections Commissioner and The Inspector General of Police. Today, the President cannot make any important state appointment except in mandatory consultation with the ten-member Constitutional Council. With regard to certain positions like the IGP and AG, and judges of the higher judiciary, the President has to make the recommendation and get it approved by the Constitutional Council. When it comes to making appointments to the independent commissions such as the Elections Commission and the Public Services Commission, the Constitutional Council that makes the recommendation for the approval and appointment by the President. Either way, it’s the Constitutional Council and not the President who plays the pivotal role in making these appointments.

Before the 19th Amendment, all Presidents held various portfolios under the old Article 44(2) which stated that the President may assign to himself any subject or function and will remain in charge of any subject or function not assigned to a Minister. However this provision no longer exists in the Constitution. Though there is this theory that the President may be able to retain the defence portfolio citing Article 4(b) which states that the President exercises the executive power of the people including defence, the fact is that up to the 19th Amendment the president’s power to assign to himself any portfolio he wishes was derived not from Article 4(b) but from the old Article 44(2) which has now been repealed.

After the 19th Amendment, the President still remains the head the Cabinet, yet he is barred from holding any portfolios and functions more like the Chairman of the Cabinet. President Sirisena holds the Defence, Mahaweli and Environment portfolios only by virtue the transitional provision in Section 51 of the 19th Amendment which enables him to hold those three specified portfolios. This transitional provision ceases to operate with his retirement. When Sirisena bows out, those three portfolios will have to be given to ministers recommended by the Prime Minister. After the 19th Amendment, the President has no power worth talking about. He cannot wield any real power and do anything in his own right. The real power lies with the Cabinet of which the president is also a member.

The President has powers over the appointment of the commanders of the armed forces, ambassadors, provincial governors and ministry secretaries. Though some think that the President will be able to run the country through the ministry secretaries bypassing the Ministers, the way President R. Premadasa is supposed to have done during his ‘one man show’, this will not be possible because Article 52(2) of the Constitution states very clearly that the secretary to a ministry shall exercise supervision over the departments and other institutions in charge of the Minister subject to the direction and control of his Minister.

 If President R.Premadasa was able to run a one man show by controlling all the ministries through the ministry secretary, that was only because the President could at that time sack both the minister and his secretary at any time. So at that time the minister dared not protest even if the President was dealing directly with his secretary behind his back. Today however, the President cannot sack a minister unless it is on the recommendations of the Prime Minister. What we have under the 19th is not really a President but a quarter of a President. Even the Prime Minister is a quarter of a Prime Minister because the only claim to power that he has is being the effective appointing authority of ministers. Thus with a quarter of a President and quarter of a Prime Minister, we have half an executive with the other half lost in a constitutional limbo.

 We all have to hope that the voting public would have voted in their numbers for Gotabhaya Rajapaksa at this election because it is only he together with his brother as Prime Minister and the synergies they have with the rest of the political grouping they represent that will be able to restore a semblance of a proper government to this country. The dyarchy created by the 19th Amendment is tailor made to foster confusion and conflict between the President and the Parliamentary government – each elected separately by the people and each having a claim to be exercising the people’s sovereignty.

 Any attempt to remedy this by amending the Constitution to recreate a J. R. Jayewardene style Executive President will encounter such resistance that it will politically destroy the person or political party that attempts any such thing. Such an attempt will be counterproductive and will not be worth the effort. The only feasible option will be the abolition of the executive presidency and the creation of a parliamentary form of government which we hope will take place before 2025 so that this becomes the last presidential election we have. Because the present proportional representation system has produced a clear majority in Parliament for the party that wins a general election only on two occasions in 1989 and 2010, reform of the electoral system has been seen as a necessary precursor to the abolition of the executive presidency.

Working majority in Parliament

As far as electoral reform goes, the most feasible system was recommended by the Parliamentary Select Committee headed by Dinesh Gunawardene over a decade ago. However, the implementation of this system will require a fresh delimitation of constituencies and Dr. Sudantha Liyanage, who designed the system adopted by the Dinesh Gunawardene PSC envisages a deadlock at the delimitation stage because many existing electorates will have to be merged to reduce the present 160 electorates to 140. What this means is that we are saddled with the district based proportional representation system for the foreseeable future and adjustments will have to made within the existing framework. The three main requirements are firstly, to ensure that the winning party gets a working majority in parliament, secondly to do away with the preference vote system and thirdly, to have an MP to represent each constituency.

The question now is to achieve those objectives within the existing district based proportional representation system. One quick fix solution proposed to the problem of ensuring a working majority for the party that wins parliamentary elections, is to take about 12 seats out of the national list and to give them to the winning party as bonus seats. The system proposed by the Dinesh Gunawardene Committee also had five bonus seats from the national list allocated to the winning party. At the parliamentary elections of 1994, 2000, 2001, 2004 and 2015 the winning parties got 105, 107, 109, 105 and 106 seats respectively inclusive of the national list seats.

So it was a case of being short of anything between four to eight seats to have the 113 seats that will provide a working majority. At the elections mentioned above, the number of national list seats that the winning party was entitled to was 14, 13, 13, 13, and 13 respectively. Hence even if 12 seats are taken out of the national list and given to the winning party as bonus seats, that number would include about six to seven seats that the winning party was entitled to anyway, and the number of seats the winning party finally gets as actual bonus seats, could be as low as five or six.

This could lead to a situation where even after getting the 12 bonus seats, the winning party may still not get a working majority of 113 seats. In this context, there is perhaps a solution which this writer would like to suggest. The national list was only an afterthought which came with the Fourteenth Amendment. In JRJ’s original 1978 Constitution, there were supposed to be only 196 MPs in Parliament, and no national list. My suggestion is that the national list be abolished altogether leaving only 12 bonus seats for the winning party after the fashion of the 1948 Constitution, which had provision for the appointment of six MPs by the party that forms a government after an election. That would reduce the number of MPs in Parliament from the present 225 to 208 (196 elected MPs + 12 appointed MPs).

It is important to specify that the 12 bonus seats will be given to the party that wins the most number of seats at the parliamentary election, and not to the party that manages through various horse deals to cobble together a government after an election. The 1948 Constitution, with only 101 MPs in Parliament, gave the party that forms a government six bonus seats. So to have 12 bonus seats in a Parliament of 208, is not excessive. If the number of MPs is reduced to 208, the number of MPs necessary to form a stable government will be 105. An examination of the election results of the past 30 years will show that after 196 MPs are elected from the districts, an additional 12 bonus seats would enable the winning party to have a working majority.

It is, of course, impossible to totally eliminate the possibility of the winning party falling just short of a working majority. The idea would be to ensure that hung Parliaments are the exception rather than the norm. As things stand today, winning parties without a working majority is the norm. The national list has earned a bad name and abolishing it will be welcomed by the public and even by elected MPs. One difficulty in abolishing it is that over the years, every political party has got accustomed to nominating a few critically important people to Parliament through the national list. The winning party will have the 12 bonus seats to which such persons can be appointed. However, in the absence of a national list, the parties in the opposition will have no way of appointing MPs to Parliament.

Shifting responsibility to political parties

Perhaps, the way to deal with this may be to draw inspiration from the original 1978 Constitution and give the political parties unfettered authority to appoint whoever they like to one or two seats won by that party in each province. Under the present electoral system, each province is allocated four seats in Parliament. When these seats are apportioned to the various electoral districts in the province, they become the district bonus seats that everyone is familiar with. Even though the popular belief is that each district has only one bonus seat, some districts have two bonus seats.

To illustrate this by way of an example, the Colombo district is entitled to17 seats going by the number of registered voters in the district. With the bonus seat, the Colombo district should have 18 seats. But it actually has 19 seats because it has got two bonus seats. The four seats allocated to the Western Province are distributed as one bonus seat each for the Gampaha and Kalutara districts and two for the Colombo district. In the Central Province, after Matale and Kandy have been allocated one bonus seat each, the Nuwara Eliya district has got two bonus seats. Likewise, the Anuradhapura and Polonnaruwa electoral districts in the North Central Province have two bonus seats each because the NCP has only two electoral districts.

If each electoral district was to have only one bonus seat, there would be only 22 bonus seats for the 22 electoral districts in the country. But in reality there are 36 bonus seats which works out to 14 extra seats. If the political parties are allowed to fill one or two seats they win in each province as the party deems fit, that may meet the need of political parties to accommodate politically important individuals in Parliament. Of course such dignitaries may have to make themselves useful in the election campaign in the relevant province and especially in the district concerned so as to justify their appointment to Parliament.

If J.R.Jayewardene’s original plan was to give the political party complete authority over appointing MPs to Parliament after an election, surely there is nothing wrong in allowing political parties to appoint just one MP at their discretion and that too only in the districts that have this extra seat over and above one bonus seat per district?

One way to solve the issue of having constituency based representation and achieving the objective of eliminating the preference vote system, could be to adopt a modified version of the system originally envisaged by JRJ by giving the political parties the power to nominate candidates to Parliament. All political parties still appoint their electoral organizers on the basis of the existing 160 electorates or polling divisions as they are now known. The appointment of an electoral organizer by a political party could become a more formal affair where the letter appointing a person as an electoral organizer is accorded some legal validity while political parties retain the entitlement to change their organizers at any time as they deem fit.

These electoral organizers become candidates at parliamentary elections with their names appearing on the party nominations list. Candidates can be nominated to Parliament by their party on the basis of the percentage of votes that each electoral organizer/candidate obtains within his constituency to bolster the overall performance of his party in that district. This will eliminate the need for the preference voting system and the need for candidates to canvas for votes throughout an entire district. Since the number of MPs that a political party will get in a district will be decided on the basis of the proportion of votes it polls, and not on the number of constituencies it wins, every electoral organizer will have to be given constituencies of a uniform size with a specified minimum number of registered votes so as to give him a fair chance of obtaining the proportion of votes that would get him a seat in Parliament.

Dividing or combining the existing electorates to make up constituencies for their organizers will be the responsibility of each political party. Under such a system, it could well be that a candidate who has won the constituency allocated to him by his party may not be elected an MP if his party’s allocation of seats according to the proportion of votes won in the district runs out before it comes to his turn. He would then be the next on the list to be appointed to Parliament on the death or resignation or expulsion of an MP elected on his list. If one gives it careful thought, there is in fact a way in which J.R.Jayewardene’s original parliamentary electoral system could be adapted to meet present day requirements.