( Text of Editorial appearing in the “Daily Financial Times” of July 5th 2022 under the Heading “Both the President and the Presidency must go”)
Last week the Cabinet of Ministers approved and later gazetted the proposed amendment to the Constitution, which if approved would be the 21st Amendment. The demand for change in the governance structure in Sri Lanka is no longer a demand only of the general public of the country but a prerequisite for many of the international partners who would be assisting the country to come out of its current economic situation.
However, the minimalistic approach of the Gotabaya Rajapaksa-Ranil Wickremesinghe Government to present a diluted amendment that retains both the executive presidency as an institution and the current incumbent in office until the end of his term would not suffice to address the current crisis.
An argument against the abolition of the executive presidency is that the presidency leads to stability. Proponents of the presidency say that in view of the political and economic challenges faced by a developing country such as Sri Lanka, a strong government freed from the whims and fancies of the legislators and which can take tough, unpopular decisions that are in the long-term interest of the country is needed.
The fact that President Rajapaksa has failed in governance, despite having overwhelming powers bestowed to him through the 20th Amendment (20A) and enjoying a two-thirds majority in Parliament, is testament to the abysmal failure of the institution of executive presidency.
It is apparent by now that the current crisis could have been avoided or at least mitigated if there was a degree of oversight by the Parliament. Despite the legislature being responsible for the finances of the Republic, there has hardly been an opportunity for Parliament to intervene while the Government of President Gotabaya Rajapaksa was making one policy mistake after another. In any other parliamentary democracy, the Governor of the Central Bank, the minister in charge of finance and responsible public officials would have been under constant scrutiny. Here, instead of such checks, the minister in charge of finance was hardly in Parliament even to answer a question from the members of the Opposition and the governor refused summons by the legislature.
An Attorney General’s department assisted by an equally independent Police and a judiciary would have set the necessary checks against the rampant corruption that raged for the last two and a half years devastating the economy. Public servants acting independently would have been able to advise the Government on the follies of their policies without fear of retribution and been whistleblowers when such advice was not taken. The new proposals made by the Government do not even restore the constitutional checks and balances that were in place through the 19th Amendment. The Constitutional Council which will determine the appointments to the “independent commissions” will be dominated by government appointees, nullifying its purpose; the current President will continue to have powers to appoint Cabinet of Ministers, allocate subjects and functions and he will have power to prorogue Parliament whenever he wishes and dissolve Parliament after two and a half years without the approval of Parliament. The President will continue to be able to appoint all secretaries to ministries at his own discretion. This would mean that at a point when the cabinet of ministers is dissolved, the president can govern through secretaries to the ministries without a Cabinet.
The 19th Amendment did not allow for the president to hold any ministerial portfolio other than as an interim measure for the incumbent. The new proposal grants the president the Ministry of Defence, without identifying the agencies that may fall within that ministry. As seen previously such provisions are easily abused with the president deciding to incorporate any agency into the Ministry of Defence. The last two and a half years is ample proof of the abysmal failure of the individual, Gotabaya Rajapaksa and the institution of the executive presidency. Any constitutional amendment that does not remove both is doomed to failure. Assuming that minimalistic constitutional amendments to simply appease international partners will suffice to address the current crisis is a mistake. If there is to be any hope of economic recovery and moving forward from this current predicament, both the president and the presidency must go.