By Rajasingham Narendran –

Dr. Rajasingham Narendran

The Executive Presidency instituted through the 1978 republican constitution and subsequently amended eighteen times (are there a few more on line?) has to be faulted for myriad failures in Sri Lanka’s democracy and governance. The Executive Presidency of Sri Lanka is a badly designed institution within a badly designed and subsequently further distorted constitution.  It is probably the strongest office in the world! The constitution of 1978 was designed to bestow unbridled power on one man- Junius Richard Jayewardene– to do everything but change a man into a women and vice versa, and ensure  permanent governance by the UNP. JRJ was an insecure and unprincipled man, and  a dictator by nature.  In the process all other institutions , the parliament, judiciary and public services, were deformed beyond recognition and made subservient to the Executive Presidency.  Accountability, rule of law and everything else that defines good governance had been comatose, even before the election of the current president. The impunity bestowed on the Executive Presidency, has reached and polluted every mound and crevice in Sri Lanka. Democracy has become a sham as a result. Governance is no doubt at its poorest.

A nation that had universal franchise 83 years (1931) back- much before other British colonies in Asia- and had a vibrant democracy at independence (1948), has since the 1978 constitution, sold the sovereignty of its people to elected tin pot dictators.  The 18^th amendment introduced by Mahendra Percy Rajapaksa-a power hungry, pompous and unprincipled person- and his absolute disregard for constitutional norms, principles of governance even as laid down and ethics have dealt a death blow to our democracy. He is a small man gifted with oversize shoes, which he enlarged further. He has stumbled badly as a result.

The questions we have to ask are:

1. Is the concept of a Republican Constitution wrong or is OUR republican constitution deliberately designed wrong?
2. Is the concept of an Executive Presidency wrong or is OUR executive presidency deliberately designed wrong?

My answer to both these questions is the same. The constitution and the executive presidency within it have been deliberately designed wrong. They have been designed to elect a monarch, to whom all other institutions and the people are subsidiary and subservient.  The present monarch is intent on institutionalizing the monarchy in the form of familial rule.  The president and his family who have given themselves pseudo-democratic legitimacy through various devices that breach moral and ethical principles, rule us with an iron fist, hiding malafide intent with smiling faces and what Nilantha Ilangamuwa (Sri Lanka Guardian. August 5, 2014) quoting Walter Lippmann chooses to call ‘Manufactured Consent’ in a current article. The concept of manufacturing consent is not an innovation of the current government, but has been practiced by all governments before it, though this government has made it a very sophisticated exercise.  Money power, hired muscle power, mob squads led by yellow clad thugs, white vanning, murder, media manipulations , the police and armed forces, the parliament and the judicial system are being used as never before to manufacture this apparent consent. The manner in which Chief Justice Shirani Bandaranayake was removed from office will forever stand as an example of this manufactured consent! The manner in which the two third majority was constructed and the 18^th amendment to the constitution passed is another. There are a multitude more. What was manufactured consent is now being steadily morphed into ‘consent by the quiet and silence of a morgue’ enforced by blatant use of pressures of various types. We are being made into the four monkeys that do not see, hear, speak or show!

The parliament we have elected is controlled by a majority that owes personal allegiance to the president and his family for various reasons that are not above board. It is also mediocre and is designed to make even the most qualified mediocre. The higher judiciary has become a kept institution and dare not stand up to the president. The lower judiciary of course has lost its backbone and independence, and is mostly mediocre.  The public service and police service are under the total control of politicians and their mafia. Political patronage extending from recruitment, promotions up to retirement and beyond has rendered our public service mediocre, inefficient and corrupt. Public servants have become self- servers, time servers and bootlickers of politicians. The police service has been corrupted beyond imagination and is a handmaiden and doormat of politicians. Every other institution including the education sector, have suffered a similar fate.

However, the larger question that concerns me is whether the Soulbury constitution of 1948- the Westminster style constitution under which we attained independence and the republican constitution of 1972 instituted by the Sirimavo Bandaranaike headed leftist coalition were ideal and provided us better quality governance. The Soulbury constitution was stripped of its soul and vision on many an occasion. Towards the end of its life, it was rendered an empty shell for all intents and purposes. Its institutions were also politicized or paralyzed. The 1972 constitution legitimized and institutionalized the damage done to the Soulbury constitution.  It was a document designed to satisfy the objectives of the coalition government of the day to have its way, come what may. This was despite retaining the Westminster model at its core. The checks and balances that were on paper to strengthen democracy, were also degraded under this constitution.  The 1978 constitution was the natural outcome of a process that empowered politicians at the expense of other institutions and further advanced to the extent that one politician was made a constitutional dictator- an elected monarch, who had the choice to be a benign dictator or a malignant one. What we have now is one who is malignant, but has the immense ability to pretend otherwise.

What our politicians have demonstrated is a singular inability to function within the empty but illusory words enshrined in our constitutions. Those who we elect to govern us, do not want to be constrained by the boundaries set by any constitution.  We have tolerated this and have permitted constitution making the job of our narrow minded and self-seeking politicians, who had no exalted vision for this country. Constitutions are mere pieces of paper for them. It is a fig leaf to hide their hideousness.

We have lived with the Executive Presidency and a full-fledged Republican Constitution for 36 years- for little longer than half the period we have been independent. A whole generation has grown under it and knows no other.  We have got used to how it functions and know how it has been abused.  If permitted, the informed sections of our citizens have the knowledge and background to contribute to reforming the Executive Presidency and the constitution that it is part of.

We have to evolve further our constitutional framework. It should be a brief visionary and principled document that can withstand the test of time and be capable of being interpreted according to evolving societal values, the future that is unfolding in myriad ways quite fast and a population that has very high expectations. It should be the guiding light as we go forward and capable of having its batteries recharged time to time by interpretations that suit the times by enlightened persons who man our Supreme Court. This process should have no place for nibbling rats and poaching mongooses. It should a process to evolve persons to lead and serve us, according to a vision formulated in our constitution.

The problems that need to be corrected/ instituted in our present constitution are:

1. The power of the Executive Presidency should be clearly defined and fenced, without the office being rendered ineffective /impotent. The purpose of this office should be to make the executive branch effective, fast and efficient in carrying out government policies, with accountability held supreme.
2. A cabinet that is nominated by the President, but is approved by the legislature and can be questioned by it. The members of the cabinet must be outstanding elements in society or the legislature. However, those in the legislature should leave it to join a cabinet
3. Cabinet size and ministries should be clearly defined.
4. The president while being Commander-in-Chief of the armed forces and the head of government, should not hold cabinet office. He should preside over cabinet meeting and with the advice of the cabinet formulate national policies and initiate budget proposals and legislation.
5. The president should not be the leader of the political party with which he is affiliated.
6. An independent legislature that has specific and defined functions, which would permit its members to function independent of party affiliations and the executive presidency. The legislators should be answerable to the people who elected them, more than to the party they are affiliated with.
7. A powerful committee system in the legislature.
8.  Qualifications in terms of education, experience in public life and unimpeachable character for those who contest for political office.
9. Ban on crossing over to another political party, once elected from one party.
10. The absolute independence of the judiciary, with a clear and objective system for impeachment of Supreme Court judges.
11. The impunity that the executive president enjoys has to be removed. He and his cabinet should not be exempt from the demands of law and constitutional dictates.  There should be no room for the executive president to pick and choose the constitutional provisions he will abide by.
12. A clear separation of powers in terms of the executive presidency, legislature and judiciary
13. More straight forward procedures to impeach a president, without this process being misused.
14. The proportional representation system to be combined with a first past the post system (as in Germany)
15. The power of the President to fix the various election dates should be removed. Election dates should be constitutionally pre-determined.
16. Re-institution of the system of by-elections to the legislature and the
17. Independence of the public service should be assured.
18. Independence of the police service should be assured.
19. Restriction of the armed forces to their only mandate- security of the country.
20. Absolute equality of citizens as individuals and guarantee of their rights to safety; security; linguistic, religious and cultural identity; wherever they live.
21. Assured minority representation in the cabinet.
22. Creation of an office of vice-president.
23. Clear devolution of political and administrative power to the provinces and ceremonial role for the provincial governor, who should be appointed by the president with the consent of the chief minister and approval of the legislature.
24. A bicameral legislature, where every province has equal representation in an equivalent of a Senate, regardless of population size and with powers to vote down any legislature that it deems unacceptable and intrudes into the domain of intra-provincial governance. A veto power for any province as a collective can also be considered.
25. Remove the right of the president to dismiss the legislature.
26. Amendments to the constitution to be approved by 2/3^rd majority in the legislature, 2/3^rd majorities in all provincial councils and finally pronouncement of acceptance/rejection by the Supreme Court.
27. An independent election commission.
28. Strong anti-corruption objectives.
29. Definitive restrictions against majoritarian governance.
30. A provision in the constitution that would make hate mongering a major criminal offence.
31. Unalienable provisions to enshrine human rights, people’s rights and media freedom.
32. Depoliticize the central bank, as a national institution.

I am sure many more problems and solutions can be identified. The process to do so should start now, as a public exercise. However, in the process the ability of the executive president and his cabinet to get the right things done and quickly respond to the issues of an important/ urgent nature, should not be emasculated. He/she should be able to convince the people on the need for what he/she does, without manufacturing a consent by silence, as is being done on a grand scale now.

I have come to admire the constitution of the USA, which has stood the test of time and proven capable of responding to the needs of an ever evolving country. It is capable of self-correction, when aberrations occur. It has been also able to secure the rights of all its citizens to a very great extent and create a national identity that transcends the boundaries of its diverse population. It is the most progressive and liberal nation on earth. It is a country where creativity is encouraged and rags to riches stories are aplenty. It is a country where public debate is managed in an atmosphere of liberty, freedom and free expression, within boundaries set by law.

Our present constitution has many features of the US constitution in a half-house way. It is now time to go the full hog and adopt many of its features that are built on eternally valid principles and stood the test of time, into our constitution.

I recommend the following documents be read:

• H.Ranjith and A.G.T.S. Somarathna. Sri Lanka’s Executive Presidency: A critical Analysis of its powers and Functions Under the Constitution of 1978 and Subsequent Constitution amendments. Social Sciences and Humanities Review. Vol 01, June 2013.
• Strengthening institutions and organizational capacity- Ensuring an effective Executive. Rajiva Wjesinghe blog site. February 9,2014
• http://www.citelighter.com/political-science/politics/knowledgecards/presidential-system-of-government
• http://www.britannica.com/EBchecked/topic/717803/presidency-of-the-United-States-of-America
• Basil Fernando. Executive Presidential System- A constitutional Development Based On Distrust. The Sri Lanka Guardian, January 6,2010
• Sachin Parathalingam. Sri Lanka has the strongest Executive Presidency-Jayampathy. Ceylon Today. June18,201