Federalism and future of Executive Presidency

by R. M. B. Senanayake Courtesy The Island 07-03-2005

Why does the Leader of the UNP want the Executive Presidency to continue? Apart from the fact that its powers have been flagrantly abused and that it constitutes a threat to good governance and the rule of law, it will sit very uneasily in any federal set-up to be formed in the future. The LTTE wants ‘internal self determination’ which means autonomy in the management of their internal affairs. The issue is shared power and hence federalism is the only solution.

The nature of a federal solution

The 13th Amendment was passed to follow a pattern of devolution similar to that of India. India does not have an Executive Presidency but a Parliamentary form of government where the President is only the Head of State without any executive power and who is generally required to act only on the advice of the elected Prime Minister. The people also do not directly elect the Head of State in India.

The Provincial Councils system did not take off in the North and the East. One of the problems in this scheme of federalism is that powers are concurrent which means that the Central Government and the peripheral units share common functions. In some other federal states the specified powers are given to the Centre and the residual powers are with the peripheral units.

Given the lack of mutual trust and the over-weaning desire of our politicians at the Centre to keep power to themselves, a genuine devolution is unlikely to emerge in fact, despite provisions in the Constitution. The problem arises when the opposition political parties control the peripheral units and the central government cannot get its decisions implemented except through co-operation. Our politicians are short on c-operation and compromise and look upon the opposition political parties as enemies. So, the government has interfered with the spheres of activities demarcated for the periphery. The Executive President with his immense power has taken over schools and hospitals whose operations fall under the sphere of the Provinces and named them ‘national schools’ and ‘national hospitals’. Similarly, the doctors and the health and education sector staff are not under the control of the peripheral units which makes it difficult if not impossible for the peripheral units to supervise their management.

It is in the context of these factors that one must look at the scope for an Executive Presidency.

The USA has an Executive President. The states in USA jealously guard their rights but with the integration of the US economy and its development the Federal Government has gained at the expense of the States in power. So the Parliamentary and the Presidential executive both prevail in federal states.

Parliamentary Executive or Presidential Executive?

The question that the UNP leader should be asked is: Which is better -parliamentary or non-parliamentary federal institutions at the Centre? Is it better for keeping the federation together to have a parliamentary Executive or an Executive Presidency?

The question of suitability also depends on the degree of trust and confidence that the federated units will have in the Executive Presidency. Here, the evidence is definitely against the federated unit having any trust in the Executive Presidency owing to the manner in which its holders have functioned these twenty years. Note that the Executive President is only the Executive President of the Central or Federal Government. He is not the Executive Head of the federated units. He will have to operate there, through the Governor who is his nominee. If the governor seeks to run the federated unit there is bound to be conflict as it will not be acceptable to the people or the legislators or the Chief Minister of the federated unit. Of course, as in Brazil there could be a directly elected Chief Executive at the federated unit, too, like at the Centre. But the issue then is different from that of continuing the present Executive Presidency under our unitary Constitution.

The issue of whether there should be an Executive Presidency or not should be decided not only by the people of the South but also by the people of the North and the East. In fact, it should form part of any constitution making of the future where the Tamils and other minorities participate. It should be part of the new federal Constitution. The problem arises when the Province elects to office an opposition political party. The Executive President has been used to dissolving such Provincial Councils for some flimsy reason or other to get rid of the opposition rule.

This happened in India, too, but it has been stopped by the Supreme Court in recent years. Imagine what would happen if the Executive President seeks to influence the outcome of election in the north and the East? This is what Gamini Dissanayake sought to do and he undermined the confidence of the Tamil people even further. The Executive President at the Centre is less likely to seek compromise with those governing the federated unit than an elected Prime Minister who is the Head of the Government since the latter is more open to dialogue with other politicians particularly, if there is a Second Chamber. The issue is what is the best way to involve the people in the north and the east to participate in executive decision-making and influencing the Executive in the Central Government. Of course, there is also the danger that joint-decision-making can lead to a stalemate and be a trap. This is perhaps why the UNP leader is arguing for an Executive Presidency who has a plenty of power. But legal power is not enough to govern.

What is the better option for the legislators of the federated unit- to work with an Executive President at the Centre or a Parliamentary Executive at the Centre? In any case, there will have to be a second chamber and new arrangements regarding the public service in the federated units.

The Executive President has so far not followed any conventions to contain the relations between the Centre and the Provincial Councils under the 13th Amendment. What impact will the federated units politicians have in the election of the Executive President?

Have the working of the Executive Presidency so far promoted consensus or conflict? What is more likely in the future if it were to continue?

If Sri Lanka’s problem is ever to be resolved peacefully and constitutionally then it will have to be done through a new constitution-making process. So, the decision whether there should be an Executive President or not is a matter that should form part of the Peace negotiations. But will there be peace negotiations. As the Editor of The Island recently wrote everybody is happy with the status quo. But what is this status quo?

LTTE having a de facto Administration?

Mr Ananda Sagaree says there is no need for an Interim Administration to handle tsunami relief because the government officials in the north and the east are already following the directions of the LTTE. If he is right then the north and the east are already under the control of the LTTE. The implication is that they have a de facto administration. What will happen when there is a clash of orders between the government to its officials and cadres of the LTTE? Will the gun prevail over the circular? Did the LTTE kill the Divisional secretary Thavarajah? That was an act of terrorism. But the government by not providing an official mechanism to sort out problems is storing up trouble for its officials. The government is paying the salaries of its officials while they will be taking orders from the LTTE, if Ananda Sagree is right.

The government is also spending money on infrastructure. Under a federated structure the cost of the administration is normally the burden of the federated unit with of course grants being made by the Centre to provide public goods supplied free of charge like free education and free health care. What is the net out-turn of government income from the north and the east and its expenditure in the region? It’s time the government went into this matter.

Most people including the editors of newspapers seem to think there should be no peace negotiations but instead to allow the status quo. But there is a cost to that as well. If there is no acceptable regular mechanism for the two parties – the Government and the LTTE, to work together, how can the LTTE be brought into the democratic mainstream?

Do we prefer to allow the LTTE to continue using the gun to get their orders carried out by the government officials? Since the government is unable to protect its officials from the LTTE these officials will follow the orders of the LTTE. Do we allow this status quo to continue and deprive the Tamil people of enjoying their right to freedom from fear? How can we engage the LTTE, if we do not deal with them? The Ceasefire Agreement provides for only one sanction in the event of its violation by the LTTE, namely to abrogate the Agreement. So, those who keep reminding us that the LTTE has violated its provisions over two thousand times must address the question of what we should do about it. It is not permitted for the monitors of the process the Norwegians or the Scandinavians to do anything except to announce such violations. May be they could do more in this respect but the effect will be the same. So, do we go to war against the ceasefire violations or allow the LTTE to continue such violations and expect the international community to bail us out which they will not do. If we at least follow the advice of the international community they may be morally obliged to assist us in case things go awry. Perhaps we should get into more binding arrangements. But the JVP and others scream at any intervention by the international community. Quo Vadis?



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