Post of President
Posted on May 6th, 2022

Sugath Kulatunga 

It was a pleasure to see Field Marshal Sarath Fonseka defending the post of President against the popular will of the party of which he is the Chairman. His argument was based on the significance of the post in national security on which his expertise cannot be questioned. The demand for the abolition of the President has come mainly from parties, which miserably failed in the attempt to capture the post. The present cry of Gotago appears to be more againster the holder than on the post of the President.

The presidential system (PS) is the dominant form of government in the mainland Americas, with 19 of its 22 sovereign states being presidential republics. In the world approximately 5 out of 8 billion people are ruled by presidential or semi presidential systems. The most recent much researched and unhurried and universally acclaimed Constitution of South Africa, under Nelson Mandela opted for a Presidential system. India the largest democracy in the world is moving towards a Presidential system which Shashi Tharoor says ‘ Never has the separation of powers between executive and legislative organs been more necessary than today.  Only a truly presidential system could keep the excesses India has been subjected to in check.” 

In the 1980s and 1990s, all the new aspirant democracies in Latin America and Asia (Korea and the Philippines) have chosen pure presidentialism and out of approximately twenty-five countries that now constitute Eastern Europe and the former Soviet Union, only three- Hungary, the new Czech Republic, and Slovakia-have chosen pure parliamentarianism. Most countries which have retained parliamentary systems are Kingdoms or remnants of the British colonial regime.

It is noted that no country which had adopted a presidential system has opted out of the presidential system

 If at all the fault is not in the system but in the holders of the powerful post..

1. PS ensures the Sovereignty of the People and their right of Franchise. It is the best measure of the popular will of a nation. Sovereignty of the people implies the sovereignty of all the people of the nation. It cannot be fragmented. A President is elected by all the people of the country whereas a Prime Minister is elected as a member of Parliament from  a particular constituency and then chosen as the Prime Minister by a majority of the elected members of the Parliament. The election of a President is the only test of the popular will. For example a Prime Minister elected from an urban constituency cannot claim to represent the popular will of the nation. The selection process of a President is more rigorous than the selection process of a Prime Minister or Cabinet Ministers. He or She has to be of a person of exceptional skills with a national appeal. A President has to be conscious of the needs of the minorities and minorities can become the deciding factor as experienced in Sri Lanka in the past. The probability of a President being a more effective leader is higher than that of a Prime Minister.

2. PS Guarantees Stability:Presidential elections are held on a fixed date whereas in the Parliamentary system elections are held at the will of the Prime Minister and the party in power. A fixed period of governance ensures the stability of the state. Fringe parties, which dictate terms to governments, have less destabilizing space in a Presidential system. In a Parliamentary system the Prime Minister is only primus inter pares. Especially in coalition governments, like what we have had in Sri Lanka the Prime Minister has to yield to minority demands that are not in the interest of the nation. This could lead to conflicting and destabilizing outcomes. A President has to watch only major political trends whereas a Prime Minister in a coalition government has to appease fringe parties in order to hold power. This is a typical feature in Sri Lanka politics. A President who is elected by all of the People can prevent special interest groups or ideologues from diverting public policy into immoderate or non-public-interested directions.   

3. PS ensures Separation of Powers.:The Montesquieu principle of separation of power asserts that, to most effectively promote liberty, executive, legislative and Judicial powers must be separate and act independently. Separation of powers prevent the concentration of power in one branch of government by providing for “checks” and “balances” to avoid, over-reaching by one branch over another, and governing by one actor without regard to the others.

In the Constitution of Sri Lanka the principle of separation of power is recognized and the separate powers are assigned to the Executive, Legislature and the Judiciary. A weakness in the SL scheme is that the executive cabinet is formed with members of the legislature. This also prevents the best talent in the country to be harnessed for the development of the country.

In the Parliamentary system the executive is selected by the legislature and acts closely with the legislature. There are hardly any checks and balances between the two powers.

4. Legitimacy: The Prime Minister as mentioned earlier, a Prime Minister is elected by a single constituency which may not reflect the interests of the wider population. This is a very significant issue where Prime Ministers represent urban constituencies. A Prime Minister who is normally the leader of his party has only to exercise his party leader position to be accepted as the prime ministerial candidate. This requires manipulative skills more than national leadership qualities. There is a legitimacy deficit in the selection of a Prime Minister. Direct election by the people is vital for legitimacy. Even the strongest parliamentary regimes lack this prerequisite.

5. Two Party Systems and Presidential Government

A presidential system tends to engender a two party system reinforcing stability and enhancing democracy. The advantage of a two party system is that it results in a high degree of moderation in a political system. When there are only two political they are inclined to be usually moderately left of center and moderately right of center. When there are many small parties as we have in Sri Lanka the small parties, based mainly on ethnicity they exploit racial, ethnic, linguistic, and religious differences to try to gain popularity and power.

The presidential system tends to bipolarize elections, so that the system is one that has “two principal poles, each composed of several separate parties forced to cooperate with each other in order to win the presidential election and to govern with a parliamentary majority which reflects that cooperation.” We can observe this development in the many Sandanayas formed to contest the forthcoming Presidential elections.

6. Speed and Proficiency in decision-making: A strong Presidency is capable of making prompt and radical decisions than a cabinet led by a Prime Minister. It is doubtful if the open market policy, poverty alleviation and more importantly the successful war effort against the Tamil separatists could have been made other than a strong Presidency. A President is more effective in a crisis situations, which demand swift and decisive action. The role played by the President in Corvid pandemic control is a good example.

In Sri Lanka the President plays an indispensable role in the devolution of powers to the Provinces. Presidency becomes the anchor which firmly holds the link between the Provinces and the Center. This unique status of the President was clearly stated in the following wording in the Supreme Court determination on the 13th Amendment to the Constitution.”

The Governor is appointed by the President and holds office in accordance with Article 4(b) which provides that the executive power of the People shall be exercised by the President of the Republic, during the pleasure of the President (Article 154B(2)). The Governor derived his authority from the President and exercises the executive power vested in him as a delegate of the President. It is open to the President therefore by virtue of Article 4(b) of the Constitution to give directions and monitor the Governor’s exercise of this executive power vested in him. Although he is required by Article 154F(1) to exercise his functions in accordance with the advice of the Board of Ministers, shall be on the President’s directions and that the decision of the Governor as to what is in his discretion shall be final So long as the President retains, the power to give directions to the Governor regarding the exercise of his executive functions, and the Governor is bound by such directions superseding the advice of the Board of Ministers and where the failure of the Governor or Provincial Council to comply with or give effect to any directions given to the Governor or such Council by the President under Chapter XVII of the Constitution.”

The Yahapalana government did its utmost to whittle down the powers of the President and transfer most executive powers to the Prime Minister. To their dismay the Supreme Court held that it cannot be done without a referendum on the argument that transfer, relinquishment or removal of power attributed from one organ to another organ or body would be inconsistent with Article 3 of the constitution read with Article 4 of the Constitution . However on the same grounds the SC did not consider the reduction of powers given in the Constitution to the President a violation of the Sovereignty of the People.

Presidency is not without criticisms. But most of the criticism  apply to Prime ministerial governments as well. A major complain is that presidency produces authoritarian governments. This has been the chief objection to the former Presidents of Sri Lanka as well. In Asia Indira Gandhi of India and Lee Kuan Yew of Singapore were considered highly dictatorial. Mugabe of Zimbabwe and Hun Sen of Cambodia were considered despots. Margaret Thatcher of the mother of parliaments was an autocrat.

1.     When the President is from a different party from that of the Prime Minister there can be friction similar to what has happened during the tenure of the present government in Sri Lanka. This would not take place if the President is an independent candidate or the President after elections leaves his party.

2.     While an errant Prime Minister can be removed with a vote of no confidence (in Sri Lanka even by suspending standing orders) a President cannot be removed from his post without following the exact practice laid down in the Constitution, including an inquiry by the Supreme Court. While this may not be meet desperate situations (like the no confidence motion on Premadasa) this practice provides stability to the post of President. As  he/she is elected by the people his/her removal should rightly be approved at a referendum.

3.     An accusation frequently levelled is that a President enjoys immunity from prosecution. The provision that the President is responsible to the Parliament is not supported by modes of execution. 19 th Amendment to the Constitution has corrected the anomaly of immunity of non-prosecution. In addition to his responsibility to the Parliament the President should be made directly responsible to the people who elected him. It can be done through a national referendum, but it is an expensive device for use in specific instances.  In Sri Lanka there are close to 9000 members in 340 local authorities and 275 Pradeshiya Sabha. This 9000 members who are elected representative of the people can be the constituency for the conduct of a referendum to decide on the will of the people on important decisions. The approval for a decision by a referendum should be on a majority vote of the Parliament. The voting should be under the direction of Election Commission and the counting of votes should be done at the district level. A referendum could also be called by a majority vote by the same constituency.

1.    
The success of a President depends largely on the quality of the holder. He/she should be of high intellect, ethical, professional and gifted with a high degree of emotional intelligence.  Let Sri Lanka not be a country which has backpedaled to a Parliamentary system from a Presidential system. We are good at backpedaling or not pedaling at all.

‘For forms of Government let fools contest. Whate’er is best administered is best.’ Alexander Pope.

Sugath Kulatunga

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