By Rajan Philips –

Rajan Philips

As everyone else is scrambling to prepare for the parliamentary election, President Dissanayake and his NPP must be sitting pretty, savouring their prospects for November after their success in September. The quick dissolution of parliament and a virtually snap election favours the NPP more than others. They have the momentum and the machinery of victory behind them. And they have little time to seriously shoot themselves in the foot. The necessary economic condition and the political secret to win a majority of 113+ seats at the elections is not to rock the boat but to keep the prices and supplies steady.

Although it was the economy that ended Gotabaya Rajapaksa’s presidency and it was very much the main backdrop to the September presidential election, the results of the election cannot be interpreted as showing a voter preference for any particular direction for economic management. In fact, in an earlier CPA opinion poll, a good majority of the respondents in general, and especially among the Sinhalese, had indicated that they did not trust of any of three main candidates for their abilities to steer the economy out of trouble to recovery and growth.

No one is expecting economic miracles in the short term or the long term from President AKD. He himself has made it clear that he is not a magician. The President’s economic challenges are likely to become more noticeable after the parliamentary election than they are now. He has announced his economic team, and the team has met with IMF delegates. There have been some indications of the new Administration’s approach to dealing with the IMF, as well as its approach to dealing with State Owned Enterprises. The Sri Lankan Airlines has reportedly been pulled back from the auction block and the search is on for a new model for improved management. Time will tell.

Before long, but mostly after the November election, the government will run into crossfire from the left and from the right. The right is already skeptical about NPP’s abilities to manage the economy. The left, on the other hand, might err oppositely by raising too many expectations and even bringing to bear too much pressure on the government. The President’s challenge will be to be guided – on every issue and in any decision – by what is doable and what will bring the largest relief to the largest number of people looking for relief. The people should not be used as guinea pigs to prove someone’s ideology – left, right or centre.

Executive Presidency

The people might be even less concerned about the executive presidency (EP) than they are about economic philosophy. But both the President and the NPP have been more certain about what they will do about the EP than what they might do about the IMF. The certainty was confirmed the day after Anura Kumara Dissanayake was elected president by Sunil Handunnetti, NPP Politburo Member and former MP, who told the media that “the nation will not see an Executive President after this presidency.” Mr. Handunnetti was also part of the President’s Economic Team that met with the IMF delegation. And PB members in an organization like the JVP/NPP do not speak out of turn in public.

In any event, even if President AKD is vowing to make himself the last EP, he cannot do it by himself. He will need an act of parliament and a constitutional amendment that requires a two-thirds majority support in parliament. The question is whether it will also require a referendum. Here opinions differ, and those who swear by the EP will also swear that a referendum is needed. It could also be argued, more plausibly, in my view, that a referendum is not needed to modify the executive presidency except for lengthening the term of office.

From a political-constitutional standpoint it could be argued that what was created in 1978, through the medium of a parliamentary select committee dominated by a certain political party that has all but vanished in 2024, should not require a referendum to remove it or modify it. Also, it is not just AKD and the NPP who want this change, but also Sajith Premadasa and the SJB. Between them, they could argue, that they have more than two-thirds majority support in the country for abolishing the presidency.

From a legal-constitutional standpoint, there is a very plausible view that the requirement for a referendum should be limited only to amendments involving the Articles and provisions that are listed in Article 83 of the Constitution, as specifically requiring a referendum in addition to a two-thirds majority in parliament for their amendment. Article 83 does not include any of the Articles or provisions involving the election and powers of the Executive President. The sole exception is Article 30 (2), which stipulates the length of the presidential term, and the term of office cannot be extended without a referendum as per Article 83 (b). There is a discrepancy between Article 30 (2) and Article 83 (b) in the current version of the constitution, but that is not relevant here.
Nothing else about changing the EP system should require a referendum, including its abolition. But the term abolition is incorrect and overwrought. The task really is to replace the directly elected executive president playing a double role as head of state and head of government, by an indirectly elected president to be the head of state only. The head of government role will revert back to the prime minister as part of restoring the parliamentary system of government, which is also the commitment of both the NPP and the SJB.

The new head of state could be elected by parliament from among candidates, who are not members of parliament but are nominated by political parties represented in parliament. The powers of the new head of state could also be configured to be much less than what are allocated in the current constitution, but more than what were allocated in the 1972 constitution. Specifically, the new presidential powers could be designed to address concerns about rupturing the power link between the current EP and the Provincial Councils.

In the same vein, Provincial Council members could be brought into the process of indirectly electing the new head of state. Members of Parliament and Members of the Provincial Councils could be the ‘evanescent electoral college’ for electing the new head of state. This would be similar to the process in India for electing its president.

Getting back to the question of referendum requirement, even though it could be argued that a referendum is not required to bring about the above changes to the constitution, there is also the considered view that it is better to have a referendum and be done with it. In this view, if the NPP were to go ahead with its proposal to change the executive presidential system, it has to first get the constitutional amendment passed in parliament by two-thirds majority, and then the President will have to call a referendum for the people to vote on it.

That would be a third national vote in as many years. And costly too. Is there a middle way?
One alternative could be to use the November parliamentary election as a referendum on changing the executive presidency. A question on changing the EP system could be tagged on to the election ballot for the people to vote yes or no, in addition to casting their votes to elect their parliamentarians. The President has the power (Article 86) to submit such a question of national importance to the people to express their preference in a referendum. But it cannot be substituted for the process for amending the constitution.

Then the question becomes whether the President should consult the Supreme Court (Article 129) for its opinion on two related questions: (1) whether a referendum is required to amend the constitution for changing the executive presidency; and (2) if required, whether the parliamentary election could be used as a referendum in anticipation of a constitutional amendment in the new parliament?

That will be putting the Court on the spot, but there is reasonable justification for it, because it is not only President AKD and the NPP who are seeking to modify executive presidency in its current form, but it is also the commitment of Sajith Premadasa and the SJB. There will also be considerable cost saving. Nothing may come out of this in the end, but the prospects of seeing an elected president living up to his promise to be the last elected president have never been brighter.