President prorogues parliament, flies to London. JO signals support for removing Executive Presidency

JRJ takes oaths as Lanka’s first executive president

Rajan Philips-April 21, 2018, 6:10 pm 

Pussycat, pussycat, where have you been?
I have been to London town to see more common MPs.
Pussy cat, pussy cat, what did you do?
I frightened them all by talking about NCMs.
- The new SLFP rhyme

One would have thought that the idea to prorogue parliament would have come as a positive idea from the Prime Minister and the UNP, to make a fresh start in parliament after the terrible four months the government has gone through in 2018. Rather, it came from the President as a desperate measure to buy time to stop the bleeding in the SLFP that now has trifurcated body parts in the National Assembly. With parliament prorogued, the President flew to London to attend the Commonwealth Summit. This could be President Sirisena’s last Commonwealth Summit. In the light of ongoing developments, there is no conventionally conceivable way for Maithripala Sirisena to remain as ‘president’ of one kind or another after his current term runs out in January 2020.

There is, however, an outside chance for Mr. Sirisena to continue as ‘President’ in a modified presidency after 2020. That would depend on the JVP’s 20th Amendment passing through parliament and getting the approval of the people in a referendum, and Maithripala Sirisena playing his cards well, being on the winning side, and being acceptable as a consensus-and-compromise choice as the first Head of State in the country’s post-executive-presidency era. That would be just reward Maithripala Sirisena, for playing more than a catalytic role in abolishing or significantly attenuating the executive presidential system.

When the JVP first announced that it would take the initiative to introduce a 20th Amendment bill in parliament to abolish the executive presidency, it looked like a looming David vs Goliath battle. David won the old fight, and the JVP can draw heart from that. But this battle will require more than a shepherd’s slingshot. The executive presidency is more entrenched than the two-legged Biblical behemoth. The good thing about the JVP’s initiative is that its six members are necessarily disinterested about the presidency and utterly sincere about their objective unlike all the election winning promisors since 1994 – from Chandrika Kumaratunga, through Mahinda Rajapaksa, to the current diarchy of Maithripala Sirisena and Ranil Wickremesinghe. The irony, on the other hand, is that the JVP, with its tarnished legacies of revolutionary romanticism and bloodletting insurrections, is now taking on the more tedious tasks of constitutional politics: listening, persuading, accommodating differences, and amending through consensus building. In fairness to the six JVP MPs, it must be said that while their legacy might be soaked in blood their hands are not at all soiled by corruption.

Enter the JO: Flip, fillip

or trial balloon?

Early last week, the JVP and constitutional watchers received a surprising signal from the Joint Opposition. Apparently speaking on behalf of the Joint Opposition, MP and former Minister Bandula Gunawardane "pledged conditional support for the JVP’s 20th Amendment to abolish the executive presidency." The caveat of course is that the proposed amendment must include a provision for the immediate dissolution of parliament "after the passage of the 20th amendment to the constitution." The JO’s position is that the government has lost its two-thirds majority in parliament after the no confidence motion against the Prime Minister, and, therefore, any amendment to the constitution will require the JO’s support to meet the two-thirds majority requirement for its passage. We do not know if the signal sent by Bandula Gunawardane is based on any consensus within the JO, or if it is the position of JO’s chief Mahinda Rajapaksa, or if it is just a trial balloon to test the political winds. For now, there is no harm in taking the signal at its face value and running with it as far as we can.

On the face of it, this is a very positive development. There are lots of devils that need to be ironed out in the details, but the JVP could not have hoped for a bigger boost for its initiative. It is also consistent with recent speculations about a tacit, if not telepathic, common ground between Ranil Wickremesinghe and Mahinda Rajapaksa about joining forces to end the executive presidency. Most importantly, the JO’s position takes the wind off the sails of the constitutional ideologues, who are not a huge political force but who can make disproportionately huge political noise. Their core belief is that the ending of the executive presidency is nothing less than the end of Sri Lanka. The usual detractors have made public statements decrying the JVP’s initiative as insane and calling the JO’s signalling support as betrayal. But they know there is little they can do if the two major parties are able to occupy the common ground for dismantling the executive presidential system. They may do so for entirely different and self-servingly opportunistic reasons, but the objective merits of the end result can never be in doubt.

There is no overstating the importance of JO’s support for a constitutional amendment to the executive presidency, regardless of whether or not JO’s support is needed to secure the requisite two-thirds majority. There is more than one way to get 150 out of 225 votes in parliament. For starters, if you add the 122 who voted against the no-confidence motion, the 26 who abstained and the six JVPers who will be spearheading the 20th Amendment, you have 154 in total, more than the 150 required to meet the two-thirds requirements. I am not suggesting that all 154 are in the bank for the JVP to draw from, but it is an achievable total. Obviously, without the combined support of the President and the Prime Minister, the JVP’s amendment motion will not take off from the parliament’s Order Paper as a Private Member’s motion. With their blessings, the UNP and the SLFP could muster around 130 votes. The two JHU members including Minister Ranawaka, the former Minister of Justice, and minority MPs who have a love affair with the presidency – will hum and haw, and may not at all be happy about abolishing the presidency. But they are unlikely to ultimately oppose an initiative that has the support of the government and the Joint Opposition. The TNA and its 16 MPs may need some persuasion given their own constitutional agenda. However, given the constitutional connections between the executive presidency and the provincial council system, amending the presidential system will also give the TNA the opportunity to make its pitch for addressing outstanding issues involving devolution and provincial governments.

Dissolution Caveat: Election and Referendum

I would argue that barely meeting the two-thirds majority is not enough for an amendment of this import and more so to ensure convincing approval in the referendum that will follow the passage in parliament. A three-fourths majority, or around 170 votes, would seem more convincing than the prescribed two-thirds majority, or 150 votes. The point, as I have argued many times in this column, is that the requirement of a special (two-thirds) majority, and not a simple majority, to pass a constitutional amendment, implies not so much an electoral mandate for the governing party by virtue of a ‘landslide victory’, but a broad parliamentary consensus involving both the governing and opposition parties. Our own experiences in 1970 and 1977 have shown that landslide victories based solely on first-past-the-post system produce tyrannical majorities and not democratic majorities. The so called ‘mandated’ constitutions of 1972 and 1978 were in fact partisan products and not consensual constitutions. In contrast, the 19th Amendment for all its 19 or so defects is virtually a unanimously adopted amendment. The 18th Amendment, on the other hand, was passed by a notoriously herded majority, with even those opposing it in principle voting for it for reasons of retail politics. The best scenario for the 20th Amendment would be to secure parliamentary passage with the support of both government and opposition parties and not just one-sided two-thirds majority. The support by the Joint Opposition is, therefore, crucial, and the early signs of support by JO, as long as they last, are very encouraging.

What about the JO’s dissolution caveat? Mr. Gunawardane and others in the JO do not seem to have thought through the referendum requirement in indicating as a condition of their support, the immediate dissolution of parliament following the amendment’s passage in parliament. Although the insistence on immediate dissolution is obviously to the advantage of the Joint Opposition, the actual timing of dissolution and a general election may turn out to be quite acceptable to all parties, most of all the UNP. For, just as the support of the JO is necessary for a convincing passage in parliament and assured success in the referendum, the support of the UNP is necessary to make up the basic two-thirds threshold. The UNP may not be agreeable to a general election in 2018, but it cannot object too much to a parliamentary election in 2019, because it will likely count its chances to be better in a parliamentary election in 2019 than in a presidential election. Equally, the UNP cannot insist on the current parliament finishing its full term, because after four and half years the President can exercise his power of dissolution without asking anybody.

The timing of the referendum and the parliamentary election poses an interesting question. Can the two be held at the same time? Will all the parties agree to it? Logistically and financially, holding them together makes a great deal of good and common sense. Politically, it will be awkward for the contenders to canvass in unison for a ‘yes’ vote in the referendum, while trashing down one another in the competition for parliamentary seats. Holding elections and referendums are not uncommon, as many national governments and state governments in the US routinely hold elections and referendums together. While acknowledging that a referendum on the executive presidency is not a normal referendum, there is nothing impossible about holding it along with the general parliamentary election.

To abolish, or to attenuate

Perhaps the most challenging part of the amendment project would be in the drafting of it, in deciding what is to come after ‘abolishing the presidency’ and agreeing about it.

Clearly, the presidency is not going to be abolished in a vacuum. It would be virtually impossible to revert back, lock, stock and barrel, to the old parliamentary system under the 1972 or 1947 constitutions. No matter what, there will be a Head of State and a Head of Government, and how would a constitutional amendment provide for accommodating the two in a future system. That is the question. There are enough constitutional and legal experts around to technically draft a bill of amendment, but what is the political decision that is to inform their drafting? To my mind, the 1972 Constitution terribly diminished the role of the Head of State in a system at the core of which was the legislature as the supreme instrument of state power. As JR Jayewardene would rhetorically ask later, "… what then is the use of the Head of State … if he is nominated by the Prime Minister and if he must do only what the Prime Minister says?" He went on: "if the President is nominated by the Prime Minister, why cannot the Prime Minister be the President?"

This was accomplished when Prime Minister Jayewardene became President Jayewardene in 1978, and this he did, as he said, "legally, by the authority of the constitution." But the 1978 Constitution went to the other extreme, making the Head of State the paramount fount of state power along with an elaborate string of platitudes about the separation of powers. And President Jayewardene did not bother to ask, rhetorically or otherwise, whatever happened to the Prime Minister under the new dispensation of powers? Dr. NM Perera asked and answered the question. In the context of an already rising succession fight in the UNP, the different factions were placated "by reducing the Prime Ministership to a name board."

All of this was a long time ago, and it took such a long time before the power imbalance was somewhat rectified by the 19th Amendment, which annulled the presidential powers to arbitrarily fire the Prime Minister and to equally arbitrarily dissolve parliament. The now anticipated 20th Amendment provides the opportunity to conclusively establish the relationship between the Head of State and Head of Government. It needs to be an improvement on the 19th Amendment and its final resolution must fall somewhere between the 1972 Constitution and the 1978 Constitution. There is also the third constitutional rail, namely, the provincial council system that has direct and perhaps two-way bearing vis-à-vis the presidency.

Interestingly, the provincial council system has become one of the main arguments against abolishing or attenuating the executive presidency. There is no question the two are tied, but that does not mean that every attribute of the current presidential system must be retained to keep the provincial councils in check. For example, the President does not need to have the power to dissolve parliament or sack the Prime Minister at whim in order to check and balance the system of devolution. Undoubtedly, this will be a contentious issue, but it can also be looked upon as an opportunity to strike two birds with one to stone: i.e. using the opportunity of the 20th Amendment to address the problems of the executive presidency and the expectations of a reasonably devolved polity under a unitary constitution. What should be resisted and avoided, however, are the puritanical temptations to alter contentious terms in the constitution. Learned debates over terms – unitary/federal, religious/secular etc., will generate more heat than light, nothing will change, and the country will be stuck in sweltering darkness.

Our legislators can take a lesson from the evolution of judicial thinking at the Supreme Court. If, as our judges have cogently argued that it is possible to provide for devolution of power within a unitary state, it must be equally possible to have power sharing between the Head of State and the Head of Government. The attenuation of the presidency should also mean eliminating the direct election of the Head of State. The Head of State could be elected through a real electoral college (not the evanescent kind as in the US) comprising the national and provincial legislators and a population-weighted voting system. There is no system drawn up in heaven, as Dr. Colvin R de Silva used to say, to straitjacket how a country’s constitutional and political systems should be designed and operated. Apart from our own experience, there are enough examples of constitutional democracies in the world with a diversity of arrangements for Head of State and Head of Government and for electing them. Sri Lanka is one of them now. It should strive to become a better one. Are our parliamentarians collectively capable of striving to be better? It will not be long before we are able to find out, yet again!