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Sri Lanka Must Retain Presidency with Powers Same as USA, France, Brazil, Philippines, Indonesia, South Africa and South Korea

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BY DR DAYAN JAYATILLEKA

There are at least two fundamental challenges facing the new Sri Lankan government and both are of long standing. One is the North-South question, which is my shorthand for what is variously called the Tamil National Question or the ethnic problem. The other is the South-South Question.

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While this latter naturally embraces the party political competition, which is now intra-party as well as an inter-party issue, that is not the hub of the problem. The crux of the South-South problem today is that of forms of government: Presidential or parliamentary.

The North-South and South-South problems intersect and interact, because they combine into problems not merely of forms of government, but forms of state. The options are:
(a) Presidential/unitary
(b) Presidential/non-unitary
(c) Parliamentary/unitary and
(d) Parliamentary/non-unitary.

Within the new government there are two positions regarding matters of system and structure. They are both flawed, but one is less flawed than the other.

The first position is that of the abolition of the executive Presidency, by which is meant the transfer of the executive powers and function from the presidency to the Parliament, essentially the Cabinet and the PM. This position is that of the shift from Presidential to Prime Ministerial government. In Sri Lankan terms it is a reversion to the pre-1978 situation of a neo-Westminster model. Inasmuch as the state is formally characterized as unitary, it is the reversion to the First Republic of 1972 rather than the non-republican classically Westminster model contained in the Soulbury Constitution. In stricter terms, it is a dismantling of what Prof AJ Wilson called “the Gaullist system in Asia” (1980), i.e. the French model of the Fifth Republic (without the important element of secularism), instituted by President JR Jayewardene in 1978 and the restoration of a quintessentially British (colonial) model.

Politically, this first position is shared by Ranil Wickremesinghe, Chandrika Kumaratunga, the TNA and the JVP. Ranil and Chandrika amount to what I would call the ‘UNP Plus’, with the Plus standing not for the SLFP but the neoliberal ideologues of the CBK Sudu Nelum constituency. It would not be inaccurate to say that if one were to exclude the JVP, the advocates, including the born again advocates of the abolitionist agenda are the old ‘peace constituency’.

The second position within the new Sri Lankan government is not that of the abolition of the executive Presidency but its drastic shrinkage, leaving it with certain core or residual powers. I call this a skeletal and minimalist, but not merely nominal, Presidency. This notion holds that the Presidency should retain the portfolio of Defense and nothing else or nothing else of much importance. The votaries of this view are hardcore supporters of President Sirisena, ideologues of the erstwhile Reformist (‘rebel’) faction of the UNP, and the JHU. They seem to be concerned about the centrifugal consequences, not least the ethnically centrifugal consequences, of the de-facto abolition of the executive Presidency by means of the wholesale transfer of executive powers to the Cabinet and the PM.

My own position is a third one, which I fondly believe is the unvoiced sentiment of the majority of the Sri Lanka Freedom Party. Quite obviously the country has to bid farewell to the maximalist Presidency of the Jayawardene vintage, which reached its zenith with Mahinda Rajapaksa’s 18th amendment and the abolition of term limits. However, the answer is neither abolition nor even a minimalist Presidency. It resides in what I would suggest is a Buddhist-Aristotelian perspective in which one must search for the Middle Path and the Golden Mean.

The essence of the Buddhist-Aristotelian paradigm is the avoidance of excess. This would mean the identification of the excessive powers of the Sri Lankan Presidency and their deletion, transfer or diffusion/sharing. This avoids the twin extremes of maximalism and minimalism.

All of this sounds very nice but how would it work out in reality? It is really quite simple indeed. The Aristotelian tradition originated in the comparative study of the Constitutions of the Greek city states. In order to avoid controversy, let us set aside the Eurasian Presidential models such China, Russia, Vietnam. Let us instead look at the most exemplary variants of Presidentialism within the liberal-democratic tradition, Western and Eastern; global Northern and Southern. These are US, France, Brazil, South Africa, Philippines, Indonesia and South Korea. Whatever powers, role and functions that the Sri Lankan Presidency possesses, which are not among those that these liberal democratic Presidencies enjoy, should be shed. All powers enjoyed by the liberal democratic Presidencies in the above mentioned states, should be retained.

Succinctly put, my perspective is one of structural reform and re-engineering as opposed to systemic change. I urge that the Executive Presidential system of the Second Republic (1978) remain, but by no means untouched. While the “Gaullist System in Asia” as Prof AJ Wilson defined it, should remain, that system requires structural reforms, not abolition or gutting.

Concretely, I do not see the need for anything qualitatively more than the replacement of the 18th amendment with the restoration of the two term limit and the entrenchment of an independent public service (abolished only recently by President Rajapaksa, but initially and for decades by the Sirimavo-Felix-Colvin troika in 1972).

The centrist approach to Constitutional change that I have outlined here has as an accompaniment, the outlook of gradualism. It requires deliberation, discussion, debate, examination, indeed dispassionate scrutiny—and by large all inclusive and representative collective body so as to ensure broad national consensus. A Constitution must evolve; it must not be overturned or overthrown. A Hundred Day fast-track is precisely the wrong one for fundamental constitutional change.

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