Sugath Kulatunga

With the exceptional success of the Aragalaya protests many politicians and academics have developed and aversion to the Presidential System of Government. (PSG). But Aragalaya hostility was not on the PSG but against Gotabhaya Rajapakse and of course the Rajapakse clan which is now extended against Ranil W. Many parties tried to read systems change element into Gota go home cry which was not correct. Until their final success the Aragalaya focused on the single objective to send Gota home which was an adroit strategy. Only with their success have they demanded pending the enactment of a new Constitution, the setting up of an interim administration where there is legal binding for representatives of the Peoples Struggle to intervene/create an impact, followed up with consequential demands.

It is only in their demand 4.1 where the Aragalaya refer to the system of governance where they demand merely to reduce the executive powers.

It was a pleasure to see Field Marshal Sarath Fonseka recently 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 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 Gotago movement was more on the holder than on the post of the President.

The presidential system(PSG) 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 remnant of the British regime.

This is a recent comment by Dr Dayan Jayatilleke on the PSG.

Latin America and Southeast Asia have witnessed far more autocratic rule than has Sri Lanka so far – for instance that of Pinochet, Suharto and Park Chung Hee—but no Latin American or Far Eastern revolutionary, radical, leftist, progressive or democrat has advocated the abolition of the presidency, and many have run for and been elected President without regarding it as their duty to abolish the office!

Every single centrifugal, supremacist act that dragged this country from being ahead of the rest of South Asia to lagging behind it, took place under Ceylon’s/Sri Lanka’s Westminster model.

Not a single such piece of discriminatory legislation was promulgated under the 1978 Constitution (and the system of proportional representation).

In the USA, the executive is checked not by commissions consisting of unaccountable NGO members, but by legislative oversight in the form of strong Congressional committees. In Sri Lanka, that would forestall any backlash.”

 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 the 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 of a nation. 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. 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. Ensures Separation of Power.: 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 no effective checks and balances between the two powers as in a presidential system.

4. Provides Legitimacy: The Prime Minister as mentioned earlier, 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 leader of the party 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.Encourages Two Party Systems of 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. Ensures 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 situation, which demands swift and decisive action.

7. 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 EP was clearly stated in the following wording in the Supreme Court determination on the 13^th 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 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 these 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 former governments of Maithripala and CBK.. 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 like how MR was sacked under five minutes) an EP 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. (Not by an Aragalaya).

Another accusation cited is that a President is not responsible to the Parliament. The Constitution states that the president is responsible to Parliament and can be impeached by the legislature if that body approves the measure by a two-thirds vote and the Supreme Court also calls for his or her removal from office. Members of the Cabinet are members of the Parliament. Parliament has power over finance.

• 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. It is noted that no country which had adopted a presidential system of opted out of the presidential system. In changing back to Westminster system which does not now seem to be working efficiently even in UK, Sri Lanka will establish again a dysfunctional first for which we are getting world famous.

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

Sugath Kulatunga