By Kumar David –

Prof. Kumar David

Elected Presidency! Double-bubble toil-and-trouble

When Candidate Sirisena reneged on his promise to abolish the Executive Presidency (EP) he became the third leader following CBK and MR who has been deceitful. The Memorandum of Understanding which launched Sirisena’s campaign reads: “The present executive presidential system will be abolished within a hundred days and replaced by a Parliamentary form accountable to the people. Under the Parliamentary system, the President will symbolize national unity and have duties and powers appropriate to the position”. There is not a shred of ambiguity. This refers to a figure-head president fulfilling ceremonial functions. Some may opine that that is not a good idea (I will discuss it anon), the point here is that this is what was pledged by Candidate Sirisena and those who backed him. These days I enjoy smirking at friends, comrades and neighbours who were aghast when I suggested in December 2014 that we should pressurize Candidate Sirisena by threatening to withdraw support if he dithered on his promise to abolish EP.

The 100-Day Work programme says: “Wednesday January 21: The process will begin of abolishing the authoritarian executive presidential system and replacing it with an executive of a Cabinet of Ministers responsible to Parliament”. Note carefully the use of the words “abolishing” and “replacing”. Are we now to conclude that the intention all along was merely to beguile people into a false belief that he would completely abolish EP? Again hold your fire if you think abolition is not a good idea; that’s a different matter; I am only pointing out the explicit, unambiguous promise. The conclusion that the public was deceived after the votes were counted is hard to evade. This is harsh; President Sirisena is a good man, many would say personally an excellent man, and I abhor the return of Rajapaksa, but all that too is another matter. This judgement about his failure to abolish EP though harsh is legitimate, and before discussing the merits and drawbacks of 19A it is sobering to rue how soon power can influence even very good men. (As a compromise I will accept transitional executive powers for this directly elected president, but for this one term only).

What forces oppose abolition? Primarily the part of the Sinhalese community that believes the anti-LTTE war could not have been won without an authoritarian focussing of power. The JHU said so during the war but is now prepared to compromise and accept substantial pruning since the war is over and the LTTE comeback threat a bogey. The JHU is willing to be flexible to ease relations with Sirisena and Ranil. The SLFP is all a mess; most MPs have little interest in constitutional affairs and orient themselves on the basis of personal profit and loss.

An interesting question is what does Ranil want? He was a devotee of JR’s EP theory but changed. Either anti-EP pressure was too much to withstand or he puked at CBK’s and MR’s cock-ups. If now guided by personal advantage he would wish to reduce presidential and enhance prime ministerial powers and aim at wining the impending parliamentary elections. If he covets future presidential ambitions, the converse holds. Maybe he is not motivated by a personal calculus and is cruising along with the art of the possible. It is the criss-crossing self-interest of key-players that makes it is difficult to confirm the final shape of 19A. Extending speculation, let us ask “What does Sirisena want?” SLFP circles are abuzz with ‘Let us make Sirisena prime minister” talk. This cuts out Mahinda, heals the SLFP rift, marginalises the Wimal-Vasu loonies, is acceptable to the CBK-Rajitha wing that undercut Mahinda, and crucially, it may be an election winner. If this is the plan (Sirisena has shown no interest so far) its protagonists would wish to strengthen the PM and weaken or abolish EP. But let’s move on beyond ad hominem titillations.

The curate’s egg

The Punch cartoon of 1895 was intended to poke fun at class in Victorian England – snobbery and grovelling. The humble Curate not daring to divulge that the egg at the overweening Bishop’s breakfast table was rotten, squeaks out “Oh, no my Lord, in parts it is excellent”. Over time the idiom lost its relish and came to denote something bad but also with a good side. After the Sirisena-Ranil double act ends, the negative side of 19A may come into play.

Although we were promised a Westminster-like parliamentary system, what 19A offers is modelled half-heartedly on the semi-presidential French Constitution. The president is elected nationwide [so will be ours: Articles 2(b) and 4 (30) (2) of 19A]; so is parliament which de facto chooses the prime minister, only formally appointed by the president. The president cannot dismiss the PM unless he looses his majority or suffers parliamentary censure. When the president’s side controls parliament he is dominant in executive action, choosing whoever he wishes for a government which implements his programme and agenda; he is the overriding national figure and the state will once again be susceptible to the worst excess of the Rajapaksa era.

However if the President’s opponents control parliament, he will be hamstrung and must choose a prime minister and cabinet which will implement a programme and agenda that he may oppose. When opposing parties control parliament and presidency in France they call it cohabitation since the French don’t care what you do so long as you pronounce it properly! If it happens in Lanka it will be more brawling than habitation. (The Sirisena-Ranil duet is different for special reasons to do with Sirisena’s election).

Unlike most parliamentary systems the French prime minister and cabinet ministers need not be members of the National Assembly (parliament). This is an attempt to mingle incompatible presidential and parliamentary systems. The former requires separation of powers, the latter a merger of the executive and legislature. Since neither structure is explicit in 19A an unstable future beckons Lanka. The root of the failure of the French system, and a lesson that Lanka will learn the hard way, is that a president elected nationwide caries the image and expectation of being the source and font of state power. If he commands a parliamentary majority he is a potential autocrat, another Rajapaksa. If parliamentary majority and therefore cabinet are opposed to him, we have deadlock; deadlock worse than between the Obama Administration and the post November 2014 US Congress because Obama at least has a cabinet entirely of non Congress persons of his choosing.

The powers vested in a US president are huge; not so under 19A. A president voted in under 19A without a parliamentary majority, will be a lame duck, but sporting the plumes of a peacock. If one dare infringe on the Bard I would murmur ‘Double-bubble toil-and-trouble’ rings truer than his “Double double”. If President and Parliament-PM are both chosen by universal suffrage, but if they champion opposed programmes, then we have a double-bubble “fire burn and cauldron bubble” story.

The directly elected presidency must go; either way it is bad. Either it absorbs or it contradicts the supremacy of parliament. The president’s role as “Head of the Executive” [Article 4 (30) (1)] must be rescinded. But the functions and duties envisaged in Article 6 (33) (1-3) are commendable and should be retained; inter alia these expectations include, symbolise national unity, uphold the constitution, preserve religious and ethnic harmony, promote reconciliation, ensure the proper functioning of the Constitutional Council, and certain specified ceremonial duties.

Edible portions of the egg

There are several commendable or interesting provisions in the 19A draft. Independence in the appointment and functioning of key Commissions has been rescued from Mahinda Rajapaksa’s megalomaniac power grab. Old 17A has been restored via 19A and appointment criteria and procedures for eleven Commissions specified – Elections; PSC; UGC; Police; Audit; Human Rights; Bribery; Finance; Delimitation; Procurement; Official Languages. Appointment will be on the recommendations of a Constitutional Council, chaired by the speaker and including the prime minister, leader of the opposition and seven other parliamentarians. The function of the Constitutional Council is recommending appointments to the aforesaid eleven commissions and approving appointment of judges of the higher courts, members of the JSC, Attorney-General, Auditor-General, IGP, Secretary General of Parliament and the Ombudsman.

There will be a Council of State (CoS), not to be confused with the Constitutional Council (a bad name conveying an incorrect meaning – Appointments Council would have been appropriate). A CoS is to be established since Lanka does not have a Senate or Second Chamber. Its functions will be purely advisory on matters of policy, gazetted bills and matters referred to it by the president or the cabinet. It is a toothless entity; its method of appointment drives home this impotency.

Thirty six persons of integrity and eminence will be appointed to the CoS on the joint recommendation of prime minister and leader of the opposition, twenty more (again integrity and eminence is specified) will be appointed by leaders of other political parties, and a few stragglers may creep in as appointees of independent groups. All Provincial Chief Ministers are also in the CoS. It is not sated, but I trust well understood, that the CoS shall not include parliamentarians – that would be a preposterous travesty of the “two-house” concept. This needs to be explicitly specified as no scam is beyond the imagination of Lanka’s parliamentarians. Crucially, fifty-six of sixty-five CoS members are nominated by parliamentary leaders; hence it is going to be a made in parliament rubber stamp!

The powers of the president are tightly ring fenced since under Article 7(2) and (3) of 19A  “The president shall always, except in the case of the appointment of the prime minister or as otherwise required by the Constitution, act on the advice of the prime minister or other minister”.

Though “the president may require the prime minister or minister to reconsider, but shall act on the advice given after such reconsideration”. Therefore a president who is not from the governing party, though directly elected by a popular mandate, is a lame duck with a phoney halo. I again underline that a directly elected parliament and a directly elected president, when of opposed political hues, constitute a scheme designed for intra-state conflict. My duty is to speak truth to power though power will take no notice. There is a new air of freedom and absence of fear everywhere; surely 19A should aid these winds of change, not throw a spanner in the works.