By Rajan Philips –
Maithripala Sirisena’s greatest contribution as President is in creating the strongest reason for abolishing the executive presidency. There are calls all around to impeach, censure or force the resignation of Maithripala Sirisena for his rampant violations of the constitution in 2018. He deserves any and all of them. The question is whether he is worth the effort and energy involved in any one of them. Impeaching him or forcing his resignation will only remove the man but will leave in place the institution of executive presidency that became Sirisena’s wrecking wrench. It would be more worthwhile to spend time in radically reforming the executive presidency than waste time getting rid of Maithripala Sirisena who will be gone in one year anyway. Keeping it simple, leave Sirisena severely alone and keep targeting the executive presidency.
Targeting the man may prove to be divisive in parliament, and even within the government given the furtive connections between the President and senior UNP higher-ups such as Sajith Premadasa and Ravi Karunanayake. That would mean difficulty in getting the requisite parliamentary majority to either impeach or to effectively censure the incumbent president. Targeting the office or the institution, on the other hand, will find broader support in parliament, and within the government, which would also be an essential asset in a referendum that will be required to implement significant changes to the current system of executive presidency. Even Maithripala Sirisena cannot oppose the ‘abolishing’ of the executive presidency because he campaigned for it before becoming President and assured the country soon after his January 2015 victory that he would be Sri Lanka’s last Executive President.
The Speaker’s spark
Speaker Karu Jayasuriya’s is the most recent public figure to target the executive presidency. Going by reported statements, Mr. Jayasuriya is apparently onto a New Year resolution – to devote 2019 to abolishing the Executive Presidency (EP). That might just be the spark to reignite the old fires of the abolishment campaign. Karu Jayasuriya’s commitment to abolish the EP could be a constitutional game changer for a number of reasons. He has committed himself to carry forward the single-issue mission of the late, lamented and revered Sobitha Thero. With his new stature as Speaker who stood up for the rights of parliament against the Sirisena-Rajapaksa machinations, Mr. Karu Jayasuriya is now eminently qualified to carry the secular mantle of Sobitha Thero. Second, he is committed to a firm deadline – the end of the current first term of Maithripala Sirsisena’s presidency. Such a commitment is worlds superior to Ranil Wickremesinghe’s open-ended promises that have become predictably vacuous and invariably tiresome.
Also, Karu Jayasuriya (KJ) is a much better champion for the abolishment cause than the JVP could ever be, although the JVP’s 20th Amendment Bill will provide a very convenient starting point to KJ’s new initiative. Last but not least, the Speaker’s initiative has no political self-interest in it. It gives the lie to the vicious and mischievous campaign during the October-November parliamentary standoff that Karu Jayasuriya was using the standoff to position himself as a presidential candidate in the next presidential election. On the contrary, it is fair to suggest that the real motivation for the Speaker’s new determination to abolish EP is the result of his total frustration in dealing with a person like Maithripala Sirisena wielding and exceeding the powers of the presidency.
While the term ‘abolish’ has gained irreversible currency in the politics of the executive presidency, it needs to be understood that the presidency cannot be eradicated root and branch, nor can there be a return to the Head of State arrangement under the 1972 Constitution of the First Republic. The institution of the presidency must be found a constitutional location between the ‘figure-head’ status in the First Republic and the omnipotent status granted by the current (1978) Constitution of the Second Republic. The 19th Amendment has trimmed away quite a chunk of the powers of the executive presidency but there are still areas that need to be addressed, especially the business of having the Head of State elected directly by the people .
The JVP’s 20th Amendment draft Bill has found such a midway location while dispensing with the requirement for the Head of State to be elected by the people. Moving forward, there need not be any worry about making a case against the executive presidency, and the focus should be on how to get the job done starting with the JVP’s 20A draft bill. An ounce of experience is worth a ton of theory, as the old saying goes, and the country has had more than a ton of abominable constitutional experience with Maithripala Sirisena. Far more than what any argument can do, President Sirisena has shown by his actions of the past two months and more that it is time to end the executive presidency in its current form.
Getting it done
Getting it done already faces its own family of redundancies. Besides Speaker Jayasuriya’s New Year resolution and the JVP’s 20A Bill, Prime Minister Wickremesinghe after his reinstatement has floated the trial balloon for a new political alliance – the Democratic National Alliance, as a vehicle for constitutional change, and canvass for a two-thirds majority win in the next parliamentary elections. So far there have been no takers for it, and both the TNA and the JVP, the main parliamentary allies of the PM and the UNP, have rejected it. The TNA and the JVP have their own seemingly separate constitutional agendas.
The PM’s ‘alliance approach’ also raises a timeline question. Is the Prime Minister planning to make constitutional reform an election issue and leave it to the next parliament to deal with it? If that is so, what is the purpose in resurrecting the hitherto dormant ‘Constitutional Assembly’ to suddenly receive the draft of the new constitution prepared by the Steering Committee headed by the Prime Minister? The government’s on-again-off-again constitutional reform process is now suddenly ‘on again’ and apparently ready to fire on all cylinders.
According to TNA Parliamentarian MA Sumanthiran, the draft constitution was expected to be presented on December 7, but was delayed by Sirisena’s October-November antics and is now expected to be presented on February 4. But subsequent news reports have quoted “top government sources” indicating the draft constitution will be presented next week, much sooner than February 4, to the Constitutional Assembly chaired by Speaker Jayasuriya.
Regardless of the conflicting dates, it would seem a draft constitution is now in some shape for consideration and potential adoption by the Constitutional Assembly of MPs. What will happen from here on? What are the relative statuses of the anticipated draft and the JVP’s 20th Amendment Bill that has already gazetted and previewed by the Supreme Court? It is reported that the new draft will include provisions for “abolishing the Executive Presidency, and increasing the powers of parliament and provincial councils.” That would mean the JVP’s 20th Amendment will be effectively superseded by the new draft which will have to go through the amending process starting with the Supreme Court preview.
Where will Speaker Jayasuriya’s initiative to abolish the executive presidency fit in with the new draft constitution and its adoption? From what I have seen, Mr. Jayasuriya’s commitment to end the executive presidency made no reference to either the JVP’s 20th Amendment, or the new draft constitution that is to be presented to the Constitutional Assembly that is chaired by him. One would think that the Speaker is not planning on starting a new drafting initiative on his own, but one cannot be but mystified by the lack of co-ordination between the different initiatives on the constitution, and between those who are championing these initiatives.
It is also fair to ask as to where the Prime Minister and the government stand on the project of constitutional reform. What will be the scope of the proposed reform? Will it be broadly acceptable to secure two-thirds majority support in parliament? When is it going to be done – during the remaining time of the present government, or after the next parliamentary elections? Speaker Jayasuriya’s suggestion to have the EP removed at the same time as Sirisena’s current presidential term comes to its end is a very sensible timeline and one that will garner much larger support in parliament across party lines than any move to force his resignation or have him impeached.
In other words, removing or abolishing the EP must be completed during the course of the year 2019. One year is long enough to have a constitutional amendment to that effect passed in parliament and ratified in a referendum. But to be successful, it must be done this year and should be done along with the changes to the proportional and preferential voting system that has wreaked havoc on the country’s electoral politics. That must be the only constitutional agenda for 2019 and the Prime Minister Wickremesinghe must co-champion this initiative along with the Speaker, and quickly decide on the scope and content of the amending bill based on the JVP’s 20th Amendment Bill.
A narrowly focused amendment to change the executive presidency issue has a greater chance of securing two-thirds majority support in parliament in the current context, than a broadly scoped constitutional amendment. The current situation in parliament is akin to the condition of Pareto optimality – the economic principle after the Italian Engineer and Economist Vilfredo Pareto, which in policy development stands for enhancing the welfare of some without diminishing the welfare of any. Among the current parliamentarians and party leaders – hardly anyone is going to be negatively impacted by reforming the executive presidency and removing direct presidential elections. Quite a few of them, on the other hand, will stand to benefit from it.
Especially, given their precarious circumstances, Mahinda Rajapaksa, Maithirpala Sirisena and Ranil Wickremesinghe would rather seek power without having to go through the trouble and uncertainty of a presidential election. If the three mutually suspicious leaders are onside for their own selfish reasons, it should not be difficult to get most of the MPs online and build a substantial consensus in parliament in support of reforming the executive presidency. A substantial consensus in parliament – say 75% or 170 of the MPs (that is more than two-thirds support), is essential to get the people’s approval in a referendum.