By Laksiri Fernando –

In a recent article titled “A Comment on the Campaign to Abolish the Presidential System,” Professor G. H. Peiris has sought to challenge the arguments of the campaigners to abolish the presidential system and argues that the proponents of the campaign “often tend to overlook the circumstances that culminated in the promulgation of a new constitution in 1978.” As he has stated “the main innovative element of which was the introduction of a system of government headed by an executive president elected directly on the basis of an all-island poll.”

His arguments deserve careful attention for two main reasons. First, as he has stated, he is a “no supporter of any political party” and “never had a personal stake on the fortunes of any politician or party.” Second, he has not denied the existence of certain ills in the present situation, if not the system, which he has summarized into three as (1) lack of transparency in financial matters (2) ham-handed decision making,, and (3) vestiges in criminalization of politics.

His main conclusion seems to be the following: “I am convinced that it is not the executive presidential system that constitutes the root cause for the prevailing ills.” However, he has not himself expressed clearly his prognosis of the root causes.

Three Identified Ills

It appears that people greatly differ in identifying the ‘prevailing or recurrent ills’ in present day politics in Sri Lanka and their ‘roots causes.’ Undoubtedly, there cannot be one root cause for any ill or ills and therefore abolition of the presidential system undoubtedly is not a panacea. In respect of present ills, G. H. Peiris has identified three, as advocated by others, but all with certain qualifications as follows.

Ill 1: “Lack of transparency in financial affairs of the government.”

Qualification: “The irony is that this phenomenon is being highlighted by certain NGOs and segments of the media that are far more secretive of their own affairs than the government.”

Ill 2: “Ham-handed decision-making in certain prioritising investment.”

Qualification: “Illustrated by the lavish but under-utilised infrastructure at Mattala, Weerawila and Ranminitenna, ostensibly meant for developing an economically retarded area.”

Ill 3: “The vestiges of criminalisation of politics.”

Qualification: “A global phenomenon the exemplifications of which is far more pronounced among our neighbours.”

According to the above analysis, the ills are not that serious therefore in a way the author is logical and his position is understandable. However there are others, including myself, who see the situation more seriously and who believe that with the 18^th Amendment the presidential system has become irreparable. On my part, I have never believed that a presidential system is a good system for Sri Lanka whatever the weaknesses of the parliamentary system or political regimes before.

21 Reasons

When I wrote about the “Danger of the Third Term and How to Prevent It” (15 October 2014), a well-meaning commenter asked me why the presidential system should be abolished as an institution. I happened to give 21 reasons quickly as follows in point form but not necessarily in a particular order. I still maintain them as reasons without any revision.

(1) The present family rule depends on the presidential system. There were symptoms even before.

(2) Presidential system has encouraged the militarization of the state even after the conclusion of the war. This is not recent, but has worsened in recent times.

(3) Beyond the military, a strong politically coercive and ad hoc mechanism has been created to suppress political opponents under President’s direct and indirect patronage.

(4) The power of the state has almost completely moved from Diyawanna Oya to the Temple Trees.

(5) All other Ministers including the PM are mere puppets in comparison to the President.

(6) Key decisions are not made in Parliament or in the Cabinet, but within an inner circle of family and faithful bureaucrats.

(7) Although the President may attend Parliament he/she is not answerable to Parliament in a practical sense.

(8) Presidential powers are enormous under the Constitution and he/she has virtual immunity from prosecution/legal accountability.

(9) With the above powers and resources at hand, a Presidents can manipulate the Members of Parliament quite easily. This has been the case in the recent past although crumbling at present.

(10) Under the presidential system, the functions and the level or quality of Parliament has degenerated although EP system is not the sole factor.

(11) The opposition has become weak under the presidential system as there is no visible government in Parliament. Take the example of DMJ as the PM.

(12) There is the possibility of conflict between the President and Parliament or even the President and the Cabinet like during 2002/2004 at any time in the future jeopardizing the stability of the government and the country. This instability can be greater than in a cabinet/parliamentary system.

(13) A President has powers to disregard, take powers away or dissolve such an oppositional government and/or Parliament.

(14) A presidential system is extremely expensive and leads to corruption.

(15) Crony capitalists and business manipulators can easily rally around a dubious president. This is not possible or easy in a Cabinet system.

(16) The reasons given to establish an EP system by JR were flawed or no longer valid.

(17) Cabinet or Parliamentary systems are proven to be better than a presidential system internationally.

(18) There is an inherent tendency within a presidential system to become authoritarian and dictatorial particularly in a developing and a conflict ridden society. This is the history of the presidential system in Sri Lanka and in many countries.

(19) People in Sri Lanka have voted for parties who have promised to abolish the presidential system in 1994, 2000 and 2005 although the elected governments failed to do so.

(20) There is a broad agreement among political parties in the opposition today and also some in the government to abolish the presidential system. This is based on experiential knowledge.

(21) Although the abolition of the presidential system is not a panacea it could be a springboard for greater democratic changes.

In stating the present ills of the country, Prof. Peiris has identified ‘criminalisation of politics’ as one but with certain qualifications. What he talks about precisely is ‘the vestiges of criminalisation’ to mean there have been improvements. He is correct if he is referring to terrorism or criminalisation of politics as a consequence of that. However, the criminalisation of politics in other forms has entrenched into the electoral system and day to day politics both in the South and in the North. He has also made a qualification as I have already noted to reduce the gravity of the criminalisation, ‘as a global phenomenon’ which is ‘far more pronounced among our neighbours.’ This is simply not prudent.

The curse of the presidential system, in my opinion, in contrast to a parliamentary system is its entrenchment in power and abuse of power with possible corruption. This is not merely an individual problem but a systemic and a structural one. Why people abuse power is a perennial question. If we take the old axiom that ‘power corrupts and absolute power corrupts absolutely’ this is more relevant in the context of a presidential system than in a parliamentary system. One may argue that presidential powers are constrained with checks and balances. If that is the case it is well and good like in the United States to a great extent. But this is not the situation in many developing and conflict ridden countries, and particularly not in Sri Lanka.

Pre-1978 Circumstances

Prof. Peiris has identified many instances of abuse of power prior to 1978, particularly during 1970-77 and I don’t have any objection; no amnesia at all. However, that abusive government could be overturned within few years through democratic elections. Moreover, those abusive and erroneous policies were not an excuse to install a system or a structure which has proved to be more prone to abuse and political harm. He has said that “The most persuasive arguments in support of the reform converged on the theme of rampant abuses under the earlier ‘Prime Minister-Cabinet’ system constitutionally founded on a ‘first past the post’ system of elections to the legislature.” This is not completely correct if you go by the arguments put forward by J. R. Jayewardene in proposing a presidential system first in December 1966 and defending it thereafter. I might find occasion to come back to that question some other time.

The above does not mean that the parliamentary system that existed before was abuse free or fool-proof. At the same time people who advocate the abolition of the presidential system do not or should not consider the mere abolition is a solution to the present situation. Some of the other necessary conditions are as follows in my opinion.

• Reinstatement of the Independence of the judiciary and Independent Commissions. This means the 17^th Amendment in a more refined form. 

• Reform of the electoral system, abolition of the preferential voting and the reinstatement of electorates with overall proportional representation is necessary to arrest the degeneration of political ethos of the Members of Parliament.

The above are minimum structural changes necessary with the abolition of the presidential system and there should be more political reforms necessary in terms of elections, political parties and the way they conduct elections and politics. There is no need to say that all human rights should be guaranteed and devolution should continue and enhanced. Two merits of the present system undoubtedly are the fundamental rights chapter and the 13^th Amendment which the author has not talked about.

Other Arguments

The author has identified four different merits of the present system as (a), (b), (c) and (d). The first two are regarding the press freedom and economic liberalization nothing at all to do with the presidential system while both are questionable in their implementation in the past as well as at present. On the hindsight, I also have no question in agreeing with (d) where he says “Sri Lanka acquired sufficient strength to defeat one of the most powerful and ruthless terrorist groups, despite almost insurmountable obstacles that were placed in the way of its military and diplomatic efforts.”

However, I don’t see any reason ‘why we should carry the raft on our shoulders after we have crossed the river,’ as the Buddha used to say.

I also see a merit in what he says in point (c), although exaggerated, that “it is not possible for any person or party aspiring to gain control over the legislative and executive branches of government to depend solely or largely on the electoral support of the majority community.” In respect of parliamentary elections this is because of the proportional representation and not because of the presidential system. As I have pointed out before, the overall proportional representation should be retained while demarcating people based electorates and that would be beneficial for both democracy and reconciliation. In respect of the presidential stakes, it is already clear that electoral support from the minority communities can be manipulated. There are very clear signs of this manipulation today.

It is not one man or woman as President who could represent the multicultural configuration of the Sri Lankan society but a properly elected Parliament. To supplement to that, a Senate could be design to give representation to multi-ethnic, multi-religious and the diverse nature of professions and vocations in our society.

Conclusion

This leads to my main conclusion on the inadvisability of retaining the presidential system in Sri Lanka whether the country achieve that noble objective in the near future or not.

In comparison to a parliamentary system of government, a presidential government in Sri Lanka is difficult to change. The system hardly allows alternative governments; one of the main bedrocks in modern democracy. People’s sovereignty is curtailed. People don’t actually have the ‘power of government’ as per the Article 3 of the Constitution. When people elect a President, even if it is free and fair, they elect only one person. It is like an elected dictatorial system. The variations are only marginal and depend solely on the person. Under the presidential powers, particularly after the 18^th Amendment, there are great possibilities of abusive elections, if the opposition is not strong and united.

To give past examples, the UNP came to power in 1977 and continued until 1994 for 17 years under the presidential system and powers. A change that year came only by chance in my opinion. If R. Premadasa was living and contesting, Chandrika Kumaratunga would not have come to power in 1994. The UPFA came to power in 1994, and continues until today under the presidential system already for 20 years. This is hardly healthy for democracy. Presidential powers in Sri Lanka are like giving monkeys razor blades.