{"id":56482,"date":"2016-07-11T15:24:27","date_gmt":"2016-07-11T22:24:27","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=56482"},"modified":"2016-07-11T15:24:50","modified_gmt":"2016-07-11T22:24:50","slug":"unseen-hand-behind-the-move","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2016\/07\/11\/unseen-hand-behind-the-move\/","title":{"rendered":"Unseen hand behind the move"},"content":{"rendered":"

By Shivanthi Ranasinghe<\/strong><\/em><\/span><\/h2>\n

A bad president is bad, as opposed to the system per se being bad, states Presidential Counsel Manohara de Silva. The Sirisena-Wickremesinghe Government came to power on the pledge of abolishing the Executive Presidency. Yet, since securing power, there is a marked reluctance to fulfil the pledge. However, they are not the first to hesitate. Presidents before also came to power from the platform of abolishing the executive presidential system and all baulked.<\/p>\n

This brings the questions, why the Executive Presidency is seen as such a stinker, and what stops the reformists from scrapping the Executive Presidency and returning to a Cabinet form of government.<\/p>\n

Weaknesses<\/strong>
\n“If you take the presidential forms of government,” he explains, “it works well. It all depends on how the system is formulated. There can be certain weaknesses in the present system, which you can certainly improve.
\n“The worst cases of anti-democratic and autocratic issues also cropped up in the Cabinet form of government that we had prior to 1978. An instance was when the Dawasa newspaper was sealed, and the Associated Newspapers of Ceylon Ltd (ANCL) was acquired, constraining the press freedom. Then when you take other freedoms, 20,000 youths were killed. Let’s put aside the bus companies and the tea estates that were nationalized on the grounds that they were the policies of the times and they were capitalist companies. But even Buhari, which is a small corner shop down Panchikawatta that sells biriyani was acquired.
\n“Even under a Cabinet form of government, leaders can also act in an arbitrarily autocratic manner. The same can prevail under a presidential system. The problem is not in the system we select, but by not having checks and balances to prevent abuse of power and not strengthening the judiciary to be independent.
\n“Actually, it is not that the judiciary that doesn’t have that strength, but you have to compel it to act fairly.
\n“I can’t see anything wrong with the presidential system, which is not to say that I’m in particular favour for what’s existing. There are certain weaknesses that need rectifying. But the weaknesses can exist in a Cabinet form of government too.”
\nHowever, he explains, the Executive Presidency has a crucial role to play in Sri Lanka. “Prior to the 1978 Constitution,” he continues, “we didn’t have an executive presidency. Till then, since Independence in 1948, it was a Cabinet form of government. However, the importance of the executive presidency came with the 1987 Indo-Lanka Accord, which incorporated the 13th Amendment (13A) to the Constitution.”
\n13th Amendment<\/strong>
\nThe 13A decentralized power in favour of the provinces. The provinces existed since 1833, but administration functioned at district level – the second level of the administrative division, making provinces ceremonial. In 1987, the Rajiv Gandhi regime flexed its military muscle and forced the J.R. Jayewardene Government to amend the Constitution and devolve power to the provinces.
\nIndia acted in the guise of safeguarding the rights of the Tamil minority group of both Indian and Sri Lankan origin. In reality, however, Sri Lanka got caught between the power struggle of the cold war foes.
\n“When you study Constitution,” he continues, “and analyze its subsequent amendments, notably the 13th, 17th and the 19th, it can clearly be seen a nefarious hand at work to destabilize the country.
\nBoard of ministers<\/strong>
\n“The 13A established a governing body in every province and installed a Cabinet. Of course, they didn’t call it a cabinet, but a board of ministers. The central government has a Cabinet. Then, the governing powers were categorized into three lists: powers that can be used by the central government, powers that can be used by the provincial government and powers that can be used by both. Now this is where the biggest threat to the country’s unitary status comes.
\n“When the 13A was introduced in 1987, a group of over 50 went to the Supreme Court, claiming that this is detrimental to the country. The Supreme Court upon examining the facts assured that the Executive President has the power to balance the Provincial Council (PC) powers. It was explained by the Supreme Court that if the PC Ministers took a wrong decision, the President has the power to override it. That vested power will not be touched by the Amendment.”
\nIndeed, when the Chief Minister of the merged North and Eastern Provinces, Annamalai Varadaraja Perumal moved a motion in the North Eastern PC and declared an independent Tamil Eelam in 1990, President Premadasa dissolved the PC and imposed direct rule on the province.
\nExecutive powers<\/strong>
\n“It was not out of any love for us that the executive powers of the President were kept intact,” he explains. “It was to avoid a referendum that would otherwise be necessary. Politically, the government was not in a favourable position to go for a referendum. So, it was shown that the Executive Presidency is a deterrent for the PC to act arbitrarily.
\n“But by 8 January 2015, the voices to abolish the Executive Presidency were growing louder. In fact, even prominent Bhikkhus such as Ven. Maduluwawe Sobitha Thera opinionated that anyone who’s against the abolition of the Executive Presidency is a traitor.
\n“In reality however, abolishing the Executive Presidency is nothing more than a step towards the separatism movement that has been working even before G.G. Ponnambolam’s 50:50 demand from the Soulbury Commission. We have since seen the separatists’ progressive movement in the acts of Dudley-
\nChelvanayakam, Bandaranaike-Chelvanayakam, Indo-Lanka Accord, the 13A, 17A and the 19A.
\n“What will happen if we abolish the Executive Presidency whilst keeping the 13A intact? We are simply removing the one person who has the power to stop PC Ministers from taking unjust decisions that might render an injustice to the people of the province. Removing that central figure is the main aim of the separatists.
\nExecutive and legislative powers<\/strong>
\n“When we have devolved power to the provinces, what we have done is taken some of the executive and legislative powers of the government and given it to the provincial governments. When the executive powers are divided between provinces and the centre, the provinces can also misuse powers the same way the centre does.
\n“Now the allegation is that the President misuses his powers. But, when we devolved powers to the provinces, we didn’t ensure that the Provincial Government does not abuse its powers. To take a simple example, if we take the Northern or the Eastern Provinces, you will find the national majority becomes a regional minority in the provinces.
\n“Now the allegation made by Tamil politicians is that the so-called Sinhala majority governments are discriminating and treating the minorities badly. They claim, it is for that reason they want devolved powers.
\nSinhala majority<\/strong>
\n“One needs to ask the question, if the Sinhala majority government which is discriminating the minorities is the problem, then what should be the answer. Is the solution, a Provincial Government, with the roles reversed with the majority becoming the minority? Will Tamils and Muslims be treated fairly by the provincial government?
\n“Whoever who comes to power can abuse it. If the intentions are pure, then the solution envisioned shouldn’t be to empower the provinces the same way the central government is empowered, but to see what the problem is and determine a solution to that problem.
\n“Right now, the Executive Presidency offers the checks and balances to ensure that the PC ministers do not act in an arbitrary or abusive manner, while giving the Governor the power to act on the instructions on the PC ministers.
\nDevolution of power<\/strong>
\n“Devolution of power is not a bad thing. A unitary Constitution can devolve power. But the central government must have control over the devolved power. If the central government has control over the devolved power, then it is a unitary state; if not, then it’s a federal state.
\n“The danger we are confronted here with is not the devolution of power, but power devolved in a manner that strengthens the provinces and weakens the central government.
\n“When the 19A was proposed, we were promised to scrap the executive presidential powers. But the 19A implemented has not touched the executive presidential powers. Why? To do so the government will have to go for a referendum. Then in the ensuing discussions, people will realize the danger of abolishing the Executive Presidency while the 13A is in force.
\nAnother reason<\/strong>
\n“But there’s another reason why the executive presidential powers were not touched. The executive powers, if taken away from the President, must be delegated elsewhere. Who should be entrusted with these powers? You can’t just give them to the 225 members of Parliament. To govern a country, there must be a governing body. That means, we must again go back to a Cabinet form of government.
\n“However, there are many factions which are against such a government. Separatists belong to one such faction. The Cabinet is a body in the central government. So, the power will stay concentrated in the central government which the separatists don’t want.
\n“After coming to power on the pledge of abolishing executive presidency, the government cannot strengthen the Provincial Council instead. So, through the 19A, it was attempted to transfer the executive powers from the President to PM. However, the Supreme Court decided that while the executive powers are entrusted to the President, the PM cannot assume those powers. While the President holds the executive powers, the PM cannot instruct the President.
\nConstitutional Council<\/strong>
\n“Instead, they introduced the Constitutional Council (CC), which is worse than G.G. Ponnambalam’s demand for 50:50 representation. The CC is composed of 10 members. The Speaker heads the CC and he has no vote – only on the second round he can have the deciding vote. Therefore, nine out of ten have a vote. The majority of nine is five.
\n“This nine is composed of the PM and the Leader of the Opposition (LO), who are ex-officio members. The PM and the LO appoint five members. The President appoints one member and the tenth member is appointed by the minority parties. This means, the PM and LO have control of seven votes out of the nine.
\n“The President is appointed by the majority of the population of the country. The PM represents people of one district only and provided the LO is from a different district from the PM, will represent the people of again only one district. So, out of the 25 districts, at most between the PM and the LO, only two districts will be represented.
\n“In effect, what have we done through the CC? We have removed the powers of the President and given them to two representatives who at most are representing only two districts.
\nCritical decisions<\/strong>
\n“The CC is empowered to make some of the most critical decisions that affect the well-being of the country. For instance, it is the CC that decides who would be the Chief Justice, IGP, Auditor General, Supreme Court judges and so on.
\n“The 13A was directly imposed on us by India. But who is behind the 17A and 19A, demanding the abolition of Executive Presidency and bringing in a new Constitution? If we closely examine, we will see a dangerous nexus of international Non-Governmental Organizations and foreign elements which have either lured or duped some of our politicians into a trap of destroying our country.”<\/p>\n","protected":false},"excerpt":{"rendered":"

By Shivanthi Ranasinghe A bad president is bad, as opposed to the system per se being bad, states Presidential Counsel Manohara de Silva. The Sirisena-Wickremesinghe Government came to power on the pledge of abolishing the Executive Presidency. Yet, since securing power, there is a marked reluctance to fulfil the pledge. However, they are not the […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6],"tags":[],"class_list":["post-56482","post","type-post","status-publish","format-standard","hentry","category-politics"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/56482","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=56482"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/56482\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=56482"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=56482"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=56482"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}