By Rajeewa Jayaweera –
It has been said, the Republican Constitution introduced in 1978 was drafted based on the American, British and French Constitutions and systems of governance.
The article titled “The Week of Judgement or another presidential surprise?’ published in the Sunday Island on 02 December 2018 by a regular columnist analyzed current developments in the local political scenario and had made references to systems of governance in the US and Australia. However, it was a one-sided and incomplete picture.
The article stated among other things;
“The argument is that because Sri Lanka is a ‘presidential democracy,’ and because the President in Sri Lanka is directly elected by the people, the President in Sri Lanka is entitled to dissolve parliament at any time he chooses to. This argument has many holes but hardly a parallel in any other constitutional system.”
“On the matter of dissolution, it would be instructive to know that in the world’s foremost constitutional democracy with a presidential system, namely, the United States of America, the President has absolutely no power dissolving anything, let alone either of the two legislative branches: the Congress or the Senate. In fact, the two assemblies cannot even dissolve themselves. The Congress stands dissolved every two years for a new election. The Senate also holds elections every two years, but only for a third of members at a time, leaving each Senator in a 100-member body serving a term of six years. If anyone wants to emulate a presidential system for the tenure of the legislature, they should look to the United States and be quite concerned with the arbitrary power of the pre-19A Sri Lankan President to dissolve parliament any time after one year of a general election.”
“On the other hand, in parliamentary democracies, the only instance where a civilian head of state dismissed a sitting Prime Minister and dissolved parliament was in 1975, in Australia, when Governor-General Sir John Kerr dismissed Labor Prime Minister Gough Whitlam, appointed Liberal Leader Malcolm Fraser as Prime Minister, and then dissolved parliament. Malcolm Fraser went on to win the election, but Sir John Kerr chose to leave Australia owing to the unpopularity of his decisions. The Australian experience has since become the exception and not the rule.”
One wonders of the comparison of the system in Sri Lanka with that of USA. In as much as it is a constitutional democracy, the US has no Prime Minister. The President selects his Secretaries (known as Ministers elsewhere) from the general public. In case of a Congressman or Senator, he or she must first give up his/her position in the legislature. That said, all Secretaries require Congressional approval to take up an office. As the author quite rightly pointed out, the US President cannot dissolve neither the House of Representatives nor Senate. Therefore, the American system is hardly comparable to that in Sri Lanka.
This writer opines, a far better comparison would have been with the French system of governance, perhaps one that is the closest to that in Sri Lanka.
Below is a Wikipedia extract on the National Assembly (France).
There are 577 députés, each elected by a single-member constituency through a two-round voting system. Thus, 289 seats are required for a majority. The assembly is presided over by a president from the largest party represented, assisted by vice-presidents from across the represented political spectrum. The term of the National Assembly is five years; however, the President of the Republic may dissolve the Assembly (thereby calling for new elections) unless it has been dissolved in the preceding twelve months (emphasis mine). This measure is becoming rarer since the 2000 referendum reduced the presidential term from seven to five years: a President usually has a majority elected in the Assembly two months after the presidential election, and it would be useless for him/her to dissolve it for those reasons.
The President of the Republic can decide to dissolve the National Assembly and call for new legislative elections. This is meant as a way to resolve stalemates where the Assembly cannot decide on a clear political direction. This possibility is seldom exercised (emphasis mine). The last dissolution was by Jacques Chirac in 1997, following from the lack of popularity of prime minister Alain Juppé; however, the plan backfired, and the newly elected majority was opposed to Chirac.
The National Assembly can overthrow the executive government (that is, the Prime Minister and other ministers) by a motion of no confidence (motion de censure). For this reason, the prime minister and his cabinet are necessarily from the dominant party or coalition in the assembly. In the case of a president and assembly from opposing parties, this leads to the situation known as cohabitation; this situation, which has occurred three times (twice under Mitterrand, once under Chirac), is likely to be rarer now that presidential and assembly terms are the same length.
While motions de censure are periodically proposed by the opposition following government actions that it deems highly inappropriate, they are purely rhetorical; party discipline ensures that, throughout a parliamentary term, the government is never overthrown by the Assembly. Since the beginning of the Fifth Republic, there has only been one single successful motion de censure, in 1962 in hostility to the referendum on the method of election of the President, and President Charles de Gaulle dissolved the Assembly within a few days.
From the above extract, it is abundantly clear, the President of France is empowered to dissolve the National Assembly provided a dissolution has not taken place during the previous 12 months.
Since Gen. Charles de Gaulle founded the Fifth French Republic in 1958, the lower house of France’s bicameral Parliament has been dissolved five times. By De Gaulle in 1962 and 1968 and by Socialist Francois Mitterrand in 1981 and 1988. In all four instances, there was either a grave political crisis or acrimony between the President and the Parliament. When President Jacques Chirac from the Gaullist Party dissolved the National Assembly in 1997, he asked the French voters to support his welfare reform programs. However, the French disagreed and returned the Socialist Party led by Lionel Jospin who became Prime Minister. President Chirac had to cohabitate with the new government.
As such, no matter what one may wish to call the French system, a Presidential Democracy, Parliamentary Democracy or any other term, a system does exist in which, an Executive President who is no longer able to execute his executive functions due to irreconcilable differences with the Prime Minister, Cabinet of Ministers or National Assembly can dissolvef Parliament and hold fresh elections.
However, that is not meant to be taken lightly and by convention, is avoided unless and until all other avenues have been exhausted which was hardly the case in Sri Lanka.
In the case of the British system, also in practice in Australia, the Monarch and her Representative in Australia are empowered to dismiss parliament. However, by convention, the power has never been exercised in Britain and only once in Australia. It proved to be a very unpopular decision. But there is no denying of the availability of the provision.
Regrettably, the chances of successfully implementing a system as in France for the greater good of the people of Sri Lanka is nonexistent due to the quality and caliber of our political leaders who make politics a family business. No Presidential or Parliamentary system of governance will succeed as long as such self-serving leaders are at the helm. They are also backed by equally self-serving lackeys.
One leader, without gracefully retiring after two tenures as Head of State tinkered with the Constitution to enable him to contest and remain in office till the baton could be passed to his offspring. Fortunately, the constitutional amendment (18A) he engineered was reserved by the government that followed.
Another leader simply refuses to fade away despite being repeatedly rejected by the people. He presides over his political party like a tin-pot dictator while making grandiose speeches on democracy. He too tinkered with the constitution (19A). Whereas the reintroduction of term limits for Presidents was welcome, there were other undesirable elements included for narrow political gain in the poorly drafted 19A.
Into the fray came a traditional backroom boy for nearly three decades who contested as a ‘Common Candidate.’ His inexperience in governance and newly developed craving to remain in office notwithstanding his undertaking given during his oath-taking ceremony not to contest the Presidency again has created the present imbroglio in the country.
Hardly material for the all-important office of Executive President.