Unseen hand behind the move
Posted on July 11th, 2016
By Shivanthi Ranasinghe
A bad president is bad, as opposed to the system per se being bad, states Presidential Counsel Manohara de Silva. The Sirisena-Wickremesinghe Government came to power on the pledge of abolishing the Executive Presidency. Yet, since securing power, there is a marked reluctance to fulfil the pledge. However, they are not the first to hesitate. Presidents before also came to power from the platform of abolishing the executive presidential system and all baulked.
This brings the questions, why the Executive Presidency is seen as such a stinker, and what stops the reformists from scrapping the Executive Presidency and returning to a Cabinet form of government.
Weaknesses
“If you take the presidential forms of government,” he explains, “it works well. It all depends on how the system is formulated. There can be certain weaknesses in the present system, which you can certainly improve.
“The worst cases of anti-democratic and autocratic issues also cropped up in the Cabinet form of government that we had prior to 1978. An instance was when the Dawasa newspaper was sealed, and the Associated Newspapers of Ceylon Ltd (ANCL) was acquired, constraining the press freedom. Then when you take other freedoms, 20,000 youths were killed. Let’s put aside the bus companies and the tea estates that were nationalized on the grounds that they were the policies of the times and they were capitalist companies. But even Buhari, which is a small corner shop down Panchikawatta that sells biriyani was acquired.
“Even under a Cabinet form of government, leaders can also act in an arbitrarily autocratic manner. The same can prevail under a presidential system. The problem is not in the system we select, but by not having checks and balances to prevent abuse of power and not strengthening the judiciary to be independent.
“Actually, it is not that the judiciary that doesn’t have that strength, but you have to compel it to act fairly.
“I can’t see anything wrong with the presidential system, which is not to say that I’m in particular favour for what’s existing. There are certain weaknesses that need rectifying. But the weaknesses can exist in a Cabinet form of government too.”
However, he explains, the Executive Presidency has a crucial role to play in Sri Lanka. “Prior to the 1978 Constitution,” he continues, “we didn’t have an executive presidency. Till then, since Independence in 1948, it was a Cabinet form of government. However, the importance of the executive presidency came with the 1987 Indo-Lanka Accord, which incorporated the 13th Amendment (13A) to the Constitution.”
13th Amendment
The 13A decentralized power in favour of the provinces. The provinces existed since 1833, but administration functioned at district level – the second level of the administrative division, making provinces ceremonial. In 1987, the Rajiv Gandhi regime flexed its military muscle and forced the J.R. Jayewardene Government to amend the Constitution and devolve power to the provinces.
India acted in the guise of safeguarding the rights of the Tamil minority group of both Indian and Sri Lankan origin. In reality, however, Sri Lanka got caught between the power struggle of the cold war foes.
“When you study Constitution,” he continues, “and analyze its subsequent amendments, notably the 13th, 17th and the 19th, it can clearly be seen a nefarious hand at work to destabilize the country.
Board of ministers
“The 13A established a governing body in every province and installed a Cabinet. Of course, they didn’t call it a cabinet, but a board of ministers. The central government has a Cabinet. Then, the governing powers were categorized into three lists: powers that can be used by the central government, powers that can be used by the provincial government and powers that can be used by both. Now this is where the biggest threat to the country’s unitary status comes.
“When the 13A was introduced in 1987, a group of over 50 went to the Supreme Court, claiming that this is detrimental to the country. The Supreme Court upon examining the facts assured that the Executive President has the power to balance the Provincial Council (PC) powers. It was explained by the Supreme Court that if the PC Ministers took a wrong decision, the President has the power to override it. That vested power will not be touched by the Amendment.”
Indeed, when the Chief Minister of the merged North and Eastern Provinces, Annamalai Varadaraja Perumal moved a motion in the North Eastern PC and declared an independent Tamil Eelam in 1990, President Premadasa dissolved the PC and imposed direct rule on the province.
Executive powers
“It was not out of any love for us that the executive powers of the President were kept intact,” he explains. “It was to avoid a referendum that would otherwise be necessary. Politically, the government was not in a favourable position to go for a referendum. So, it was shown that the Executive Presidency is a deterrent for the PC to act arbitrarily.
“But by 8 January 2015, the voices to abolish the Executive Presidency were growing louder. In fact, even prominent Bhikkhus such as Ven. Maduluwawe Sobitha Thera opinionated that anyone who’s against the abolition of the Executive Presidency is a traitor.
“In reality however, abolishing the Executive Presidency is nothing more than a step towards the separatism movement that has been working even before G.G. Ponnambolam’s 50:50 demand from the Soulbury Commission. We have since seen the separatists’ progressive movement in the acts of Dudley-
Chelvanayakam, Bandaranaike-Chelvanayakam, Indo-Lanka Accord, the 13A, 17A and the 19A.
“What will happen if we abolish the Executive Presidency whilst keeping the 13A intact? We are simply removing the one person who has the power to stop PC Ministers from taking unjust decisions that might render an injustice to the people of the province. Removing that central figure is the main aim of the separatists.
Executive and legislative powers
“When we have devolved power to the provinces, what we have done is taken some of the executive and legislative powers of the government and given it to the provincial governments. When the executive powers are divided between provinces and the centre, the provinces can also misuse powers the same way the centre does.
“Now the allegation is that the President misuses his powers. But, when we devolved powers to the provinces, we didn’t ensure that the Provincial Government does not abuse its powers. To take a simple example, if we take the Northern or the Eastern Provinces, you will find the national majority becomes a regional minority in the provinces.
“Now the allegation made by Tamil politicians is that the so-called Sinhala majority governments are discriminating and treating the minorities badly. They claim, it is for that reason they want devolved powers.
Sinhala majority
“One needs to ask the question, if the Sinhala majority government which is discriminating the minorities is the problem, then what should be the answer. Is the solution, a Provincial Government, with the roles reversed with the majority becoming the minority? Will Tamils and Muslims be treated fairly by the provincial government?
“Whoever who comes to power can abuse it. If the intentions are pure, then the solution envisioned shouldn’t be to empower the provinces the same way the central government is empowered, but to see what the problem is and determine a solution to that problem.
“Right now, the Executive Presidency offers the checks and balances to ensure that the PC ministers do not act in an arbitrary or abusive manner, while giving the Governor the power to act on the instructions on the PC ministers.
Devolution of power
“Devolution of power is not a bad thing. A unitary Constitution can devolve power. But the central government must have control over the devolved power. If the central government has control over the devolved power, then it is a unitary state; if not, then it’s a federal state.
“The danger we are confronted here with is not the devolution of power, but power devolved in a manner that strengthens the provinces and weakens the central government.
“When the 19A was proposed, we were promised to scrap the executive presidential powers. But the 19A implemented has not touched the executive presidential powers. Why? To do so the government will have to go for a referendum. Then in the ensuing discussions, people will realize the danger of abolishing the Executive Presidency while the 13A is in force.
Another reason
“But there’s another reason why the executive presidential powers were not touched. The executive powers, if taken away from the President, must be delegated elsewhere. Who should be entrusted with these powers? You can’t just give them to the 225 members of Parliament. To govern a country, there must be a governing body. That means, we must again go back to a Cabinet form of government.
“However, there are many factions which are against such a government. Separatists belong to one such faction. The Cabinet is a body in the central government. So, the power will stay concentrated in the central government which the separatists don’t want.
“After coming to power on the pledge of abolishing executive presidency, the government cannot strengthen the Provincial Council instead. So, through the 19A, it was attempted to transfer the executive powers from the President to PM. However, the Supreme Court decided that while the executive powers are entrusted to the President, the PM cannot assume those powers. While the President holds the executive powers, the PM cannot instruct the President.
Constitutional Council
“Instead, they introduced the Constitutional Council (CC), which is worse than G.G. Ponnambalam’s demand for 50:50 representation. The CC is composed of 10 members. The Speaker heads the CC and he has no vote – only on the second round he can have the deciding vote. Therefore, nine out of ten have a vote. The majority of nine is five.
“This nine is composed of the PM and the Leader of the Opposition (LO), who are ex-officio members. The PM and the LO appoint five members. The President appoints one member and the tenth member is appointed by the minority parties. This means, the PM and LO have control of seven votes out of the nine.
“The President is appointed by the majority of the population of the country. The PM represents people of one district only and provided the LO is from a different district from the PM, will represent the people of again only one district. So, out of the 25 districts, at most between the PM and the LO, only two districts will be represented.
“In effect, what have we done through the CC? We have removed the powers of the President and given them to two representatives who at most are representing only two districts.
Critical decisions
“The CC is empowered to make some of the most critical decisions that affect the well-being of the country. For instance, it is the CC that decides who would be the Chief Justice, IGP, Auditor General, Supreme Court judges and so on.
“The 13A was directly imposed on us by India. But who is behind the 17A and 19A, demanding the abolition of Executive Presidency and bringing in a new Constitution? If we closely examine, we will see a dangerous nexus of international Non-Governmental Organizations and foreign elements which have either lured or duped some of our politicians into a trap of destroying our country.”
July 12th, 2016 at 12:54 am
I disagree with learned Presidential Counsel Manohara de Silva.
All non-UNP presidents won by promising to abolish executive presidency. That includes Chandrika (1994), Mahinda (2005) and Sirisena (2015). It must be abolished.
It is true 13A is a danger and only the executive president can dissolve it. However, after 1990, no president dissolved a PC. In 2014 the NPC demanded international investigations in a resolution and in 2015 another resolution was passed calling for genocide investigations. No action was taken. As we saw in 2015, when there is no war, minorities have a strong say in electing the president. Knowing this all post-war presidents appease minority separatists.
If there is no president, the Cabinet will exercise executive powers and a rebellious PC can be easily dissolved by the Cabinet. Unlike the president, the winning party at a parliamentary election don’t get as many Tamil votes (they go to TNA). Many Cabinets have been formed by parties without Tamil seats.
If there is no president, the parliament can initiate action to abrogate 13A. It is the president that is a hindrance to it. Obviously 13A and executive presidency reinforce one and the other.
Executive presidency was there for close to 40 years but only 4 years of that was productive (2005-09) in using those powers for the good of the country. At all other time executive powers were used for wrong purposes.
Executive presidency must be abolished.
July 12th, 2016 at 1:22 am
Dilrook,
I strongly disagree that the Executive Presidency should be abolished.
Even when CBK was president, the Executive Presidency was useful. CBJ used her powers as Executive President to stop thd PM Ranil Wickremasinghe and his UNPatriotic Party government from giving the North and East to PRABHAKARAN by dissolving the parliament and calling fog new elections. It was the ONLY GOOD THING she has done in all her years in national politics.
Most countries that face serious enemy threats
adopt a form of government with an executive president. The USA, France, and Russia are among those countries. Nations with pure Parliamentary forms of government (like the UK and Italy) are unstable and ineffective in coping with foreign security threats …. to name but the two most important disadvantages.
We all KNOW that Sri Lanka faces EXISTENTIAL THREATS from many dides and will do so for the foreseeable future. Thus is NOT THE TIME to DISMANTLE our defenses!
July 12th, 2016 at 2:35 am
Not only this, the treacherous Ranil, Sirisena, CBK, Mangala, idiotic UNPers, those INGOs working for thousands of dollars and even the JVP are trying to dismember the country via constitutional changes. We patriotic Sri Lankans should demand a strong central government, no more powers to provincial councils, no merger between provinces, ideally abolition of the 13th amendment to the constitution and absolute safeguarding of the sovereignty of the country.
The army did not commit any war crimes. it is the LTTE who committed war crimes. However, it is high time that Sri Lanka rejected the US imperialists UNHRC resolution and state at the UNHRC to leave Sri Lanka alone to get on with reconciliation as Sri Lanka sees fit.
Actually Sri Lanka today being accused of committing war crimes by the US, UK, EU, Norway, Sweden, Canada, India etc. is very similar to the way Saddam Hussein and Iraq was accused of possessing non existent WMDs. Although Iraq did everything possible to show the US, UK, EU, Norway, Sweden, Canada etc. that it did not possess WMD it was bombed anyway, regime change brought about since Iraq has massive amounts of oil which the US, UK, EU, Norway, Sweden, Canada companies wanted to extract at cheap rates by bringing on a puppet regime. A similar scenario is unfolding in Sri Lanka since Sri Lanka is located at a strategic location, the US wanting to establish a naval/air base at Trincomalee, the US wanting to establish further US army, navy, air force bases in the island, mineral resources, marine resources, control of the Indian ocean sea routes etc. For this, the separatist, terroristic Tamils who are subservient to the US are who the US is favouring to help them with this task. This is why the US favours eelam. All patriotic Sri Lankans should therefore tell the government to withdraw from carrying out the US resolution and to tell the US to leave Sri Lanka alone.
July 12th, 2016 at 2:47 am
Sri Lanka needs a strong central government in the form of the executive presidency. It is the executive presidency which is keeping the unitary state together since provincial councils have now been provided powers. Therefore if the executive presidency is abolished, the provincial councils will become more powerful and the separatist terroristic TNA will try to break away using threats the North and the East. the PR system is the fairest system which means each vote counts. It is a very democratic system. We do not need any changes to the constitution. These changes to the constitution are only suggested to bring on stealthily a federal or a separate state by falsely labelling it as ‘unitary’ to hoodwink the idiotic Sinhala Buddhists. We do not need any changes to the constitution which is what the separatist terrorists of the TNA, US, UK, EU, Norway, Sweden and Canada wants to dismember this country. Also it is the executive presidential system which can easily carry out programmes to develop the country since otherwise there will be endless wranglings within the cabinet and in parliament about what path to follow for development to happen. A well meaning executive president can easily implement a reasonable and suitable programme to take the country forward. Another main reason to keep the executive presidency as it is to counter the separatist threat since a strong executive president can stop any treacherous activities which goes against the independence, freedom, sovereignty, unitary status etc. of the country since the executive president is elected directly by the people’s vote and is answerable to all the people of the country as a result. So for all these reasons, there is no need whatsoever to change the constitution. However the provincial councils should not be given any more powers, there should not be any merger between provinces, ideally the 13th amendment to the constitution should be abolished and there should be a strong central government if Sri Lanka is to move forward as a country and since it is a small country.
July 12th, 2016 at 6:52 am
“Executive presidency was there for close to 40 years but only 4 years of that was productive (2005-09) in using those powers for the good of the country. At all other time executive powers were used for wrong purposes.”
Even for those 4 years, zero benefit would have been gained if not for the President’s brother controlling the forces.
July 12th, 2016 at 1:18 pm
Dilrook,
If the Executive Presidency did not exist in Sri Lanka, guess who would be calling ALL the shots now?? RANIL, MANGALA, UNP and the TNA!
Yes, the SAME RANIL who wanted to hand the North & East over to Prabhakaran before. Thank God that CBK, the Executive President then, was there to STOP that by dissolving the UNP government and calling for new elections!
Even NOW, it is the Executive President Sirisena that is FOILING the WORST EXCESSES of Ranil and his UNP govt to sell Sri Lanka and its War Heroes to its enemies.
The Executive President is elected by a SINGLE NATIONWIDE VOTE, in which the Sinhala Buddhist majority cannot be circumvented.
For better or worse, sufficient Sinhala Buddhists voted for Sirisena to help oust MR. After all the woes that have befallen them since then, that Sinhala Buddhist majority will REVERSE COURSE in the next Presidential election and elect a MORE PATRIOTIC President who does not collaborate with the UNPatriotic Party.
IN CONTRAST, Members of Parliament are elected to Parliament region by region, allowing minorities to capture seats with LOCAL MAJORITIES.
A SIMPLE MAJORITY can allow a party to capture the Parliament and form the government. Without the Executive Presidency, the MINORITIES will then become the KINGMAKERS determining which major party will form the government, and for that help they will BLACKMAIL the major parties for CRITICAL CONCESSIONS, usually inimical to the integrity of the nation and the Sinhala majority.
Together with the UNPatriotic Party, the MINORITIES will force the enactment all kinds of laws undermining the unitary nature of the country, and the essential interests of its Sinhala Buddhist majority.
A simple majority of seats in Parliament will allow it to capture power, and a 2/3 majority … with MPs bribed with cars and otherperks and baubles … will allow them to AMEND THE CONSTITUTION … as we see happening NOW!
NO! The EXECUTIVE PRESIDENCY MUST BE RETAINED … for it gives the Sinhala Buddhist majority a VETO POWER over the activities of a corrupt PARLIAMENT orchestrated by Sri Lanka’s ENEMIES!
July 12th, 2016 at 7:22 pm
Ananda,
Why do you think a Cabinet of ministers will be less effective than an individual? Evidence from around the world show otherwise. Countries with executive presidents are in a mess inside and out. Although China has an executive president, the executive power is vested in the supreme council like a Cabinet of ministers. Countries without executive president are more stable. Even Sri Lanka was much more stable until executive presidency was introduced without consulting the people.
After the end of the war, a treacherous politician has a massive advantage to win the presidential election. Since South Indian communities in the island vote en bloc, they have a clout of at least 23%. Only another 27% is needed to win the all powerful position. With just 36% of Sinhala vote, you can win the presidential election. However, it gets worse. Tamils and Muslims have a massive population growth rate (roughly double that of Sinhalese). With the absence of war, the numbers will further skew towards traitors. Election fraud is very likely in the north and parts of the east. This gives Tamils and Muslims an even bigger clout. My estimation is a politician will need only 30% to 35% of Sinhala votes to win the presidential election if he has the support of South Indian communities (of course election fraud is accompanied). In other words, even if 65% Sinhalese vote for a politician, he will be unable to win the election in the future.
Once the president is elected, he/she will appoint the prime minister and the opposition leader! We are seeing this happening since January 2015 and even before. The president will only allow a personal favourite to hold these positions as we see today.
Do we want South Indians’ choice of ruler to rule Sri Lanka and even appoint the two heads of parliament? This is what happens with executive president. Things were good when a considerable section of South Indians in the island could not vote (thanks to the LTTE). Then they could not do election fraud and based on actual votes cast, Sinhalese punched above their weight. My estimate was around 78% of valid votes. This is not the case today.
The Cabinet is different. At a parliamentary election, most Tamil votes go to TNA, CWC and EPDP. Most Muslim votes go to SLMC and UNP Muslim MPs. TNA votes will be wasted in forming a government while all others will join the party that wins. It is possible for a Sinhala only party or a party with just 2% of votes from minorities to form a government. CWC, EPDP and SLMC will join it. They are not separatists unlike TNA. Can you see how Tamil racism self-isolates itself in a parliamentary election but plays the role of kingmaker at a presidential election? This is the advantage of not having executive presidency.
Chandrika tried 3 times to turn Sri Lanka even worse federal than what we have in 1995 (regional councils), 2000 (package) and 2005 (PTOMS). Even the federal 13A was imposed by Jayawardana using his executive presidential powers.
As things are the next executive president is Ranil or worse. Imagine the CFA signatory having unchecked powers to do anything. This is the danger of executive presidency. It must go.
July 14th, 2016 at 2:58 am
Sri Lanka should tell the US that Sri Lanka cannot abide by the UNHRC resolution. The Sri Lankan Army did not commit any war crimes. It is the LTTE terrorists who committed war crimes throughout 26 years of war. No country with an ounce of self respect will place their army in harms way to be tried by a court domestic or hybrid of war crimes the army did not commit in anyway. If individual soldiers committed any crimes, a complaint can be placed in a court of law in Sri Lanka. Why is there a need for special judicial procedures? This government is a puppet of the US, EU, UK, Norway, Sweden, Canada and India and is so subservient to US interests that it is ready to try its own armed forces for crimes that the armed forces did not commit. All the while, the LTTE terrorists who committed war crimes are being shown as totally innocent. Using the ploy of wanting a new constitution which almost all Sri Lankans don’t want, this treacherous government is trying to create a separate state in the guise of a federal state as the TNA separatist terrorists and the US, EU, UK, Norway, Sweden, Canada and India wants. Sri Lanka should tell the US that Sri Lanka cannot abide by the UNHRC resolution. The worst that the US, UK, EU, Sweden, Norway and India can do is impose sanctions on Sri Lanka. So what? Sri Lanka can trade with all the countries of Asia and the rest of the world even if the US, UK, EU, Norway, Sweden and India imposes sanctions. Sri Lanka can grow rice, we have jack fruit, bananas, bread fruit and plenty of water too. So we will not starve just because the US, UK, EU, Sweden, Norway and India imposes sanctions. Also since we can trade with the powerful economies of Asia which includes the Middle East, South East Asia, South Asia, the Far East and Central Asia as well as the rest of the world, actually, we may be OK economically too despite any sanctions imposed by the US, EU, UK, Norway, Sweden, Canada and India. However by avoiding implementing the unjust UNHRC resolution, Sri Lanka will safeguard its independence and freedom which is the most important thing for the next thousands of years as we have safeguarded our independence and freedom for at least the last 2600 years and avoid the creation of a separate state or eelam in the guise of a federal state. So Sri Lanka must very urgently tell the US that we will not abide by the unjust UNHRC resolution but carry out our own domestic process of reconciliation as we see fit. Let the imperialist US impose sanctions. Nothing much will happen to our economy since we can trade with the powerful economies of Asia and the rest of the world instead but Sri Lanka would have preserved its independence and freedom for the next thousands of years and avoid the partition of the country and the creation of a separate state which will be Sri Lanka’s end.