Abolishing the presidency: A mis-diagnosis

By Dr. B. S. Wijeweera

(November 07, Colombo, Sri Lanka Guardian) Consistency is not the strong point in politicians or their political parties. Expediency is. The Island editorial of 30 October 2009 makes an interesting observation on this. >From about 1994, the SLFP wanted the presidency scrapped, but did not get down to doing it even when it had the opportunity. At that time, the UNP wanted to continue with it, with some modifications. In his presidential manifesto, the incumbent President declared his intention to do away with the presidential system but there appears to be second thoughts on this now. In turn, the UNP (and JVP) now wants to scrap it altogether. This is not a matter that should be decided on the see-saw of political expediency. Furthermore, such a change may require an approval by the people at a referendum.

The Drawbacks of the Presidential System

The weaknesses of the presidential system are many; the chief among them being investing too much power in a single person, the tendency to abuse such power and the relegation of Parliament to the status of a mere rubber stamp carrying out the dictates of the President.

Nothing illustrates better the immensity of presidential power and the servility of Parliament than the occasion when an attempt was made in January 1981 to have what would have been the Third Amendment to the Constitution. A constitutional amendment Bill was passed in Parliament with a two thirds majority to provide for two MPs to represent the single Kalawana seat. Fortunately, the Supreme Court held that this measure required approval of the people at a referendum. The powerful government balked at putting itself to the test at a referendum and the amendment was shelved. The positive feature of this illustration is that the Judiciary acted as a brake on presidential excesses. The negative feature is that an overwhelming majority of MPs, some very learned in the law, had no compunction whatsoever in going along with a measure that was politically motivated, blatantly unethical and ad hominem.

The conceptual issue that arises from the above episode is the healthy convention of "separation of powers" between the judiciary and the other two arms of government. The combined strength of the executive and legislature was kept in check by the sturdy independence of the judicial arm, thereby avoiding the disgrace of having two MPs (one elected and the other nominated by the governing party) representing a single-member constituency. This principle of separation of powers should be highlighted and elevated to the status of a cardinal principle upon which our polity should be re-constituted.

Abuse of Power Re-considered

The issue of abuse of power should be viewed from a broader perspective. It is true that every President from JRJ onwards has tended to misuse presidential powers, with the exception perhaps, only just perhaps, of DBW. But are only Presidents guilty of such malfeasance? Every government functionary from the lowest Grama Sevaka (one of whom got caught recently by reporting to a court that a police officer who was very much alive was dead) to the highest Secretary of a Ministry, and beyond that every Minister tends to misuse his powers. The record of countless FR cases decided by the Supreme Court provides the testimony to this fact. What is more this august body, the SC, has pointed out in a recent case that even a former CJ has misused the powers of office by making "an order in excess of jurisdiction". However, in this instance he appears to have acted with the best of intentions. The essence of this observation is that abuse of power is a universal phenomenon arising from the venality of human nature and not something intrinsically specific to a particular office.

The excesses of a President assumes alarming significance because of two factors. Firstly, there is the privilege of immunity spelt out in Article 35 of the Constitution which insulates an incumbent from legal suits. This doctrine has been toned down somewhat by judicial interpretation but the residual effect is that he is still above the law. The second factor is that the remedy of Impeachment as a check on presidential excesses has been atrophied with the control of a majority in Parliament by the President’s political machine. The political party system has worked in such a way as to render Parliament impotent in the face of presidential power.

Perhaps, it is as a result of this perceived impotence that some have, in a knee-jerk reaction, advocated the reversion to a parliamentary executive. What is ignored is that excesses of a parliamentary executive can be as devastating as that of a President. The mere fact that a Prime Minister sits in the House does not necessarily ensure a corruption-free, efficient administration. Dissenting voices may be raised, even no-confidence motions, but in the final analysis the majority will gang up to preserve the status quo. The perks and remunerations of MPs are so favourable nowadays that few would want to rock the boat.

On top of this if the governing party or coalition commands a strong majority in the House we would be back to the situations that prevailed in the 1970-77 and 1977-89 administrations. The only difference is that we would have replaced the omnipotence of the President with a dictatorship of a Prime Minister!. This is not to argue that Parliament needs no reform, but Parliament must be strengthened in such a manner so as to be an effective check on executive power. In order to achieve this one has to take a critical look at the manner in which Parliament is constituted through the electoral process. Before that however some digression into theory is necessary.

Montesquieu on Abuse of Power

Over two hundred and fitly years ago, the French philosopher, Charles Montesquieu summed up the human tendency to misuse political power in a time-tested quote: Political liberty is there only when there is no abuse of power. But constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go. To prevent this abuse, it is necessary from the nature of things that one power should be a check on another.

From this distillation of "the nature of things" he went on to propound the theory of separation of powers which the framers of the American Constitution adapted. Following as we do the British constitutional tradition, we have only adopted this theory partially in that the judicial function is performed independently without interference from the executive or legislature, and the judiciary acts as the final arbiter in legal disputes. However, in the British tradition as well as ours the executive and legislative functions remain merged.

When the 1978 Constitution was promulgated there was an intent to bring about a separation of the executive and legislative functions also and vest them in two distinct institutions, namely the President and Parliament respectively. In fact, Article 4 of the Constitution still clearly vests legislative power in Parliament and executive power in a President elected directly by the people through a separate electoral exercise. Unfortunately, this puristic constitutional provision was sacrificed at the altar of political expediency by insisting that the Ministers shall come from Parliament. This deviation from the Montesquieu norm was rationalised at that time as a measure to hold the Cabinet as a whole answerable to Parliament, though the President functioned from without. In the event, we fell between two stools neither subscribing to the separation of powers theory nor that of a parliamentary executive. The real intent of this deviation, it later transpired, was to place at the hands of the President the five-sixths majority in Parliament that his party commanded. Today, ministerial appointments have become the main instrument by which the subservience of Parliament is maintained. After painful experimentation we seem to be at the cross-roads once again in having to decide between adherence to one theory or the other.

For the record it has to be noted that the American system provides for the executive President to choose his Cabinet from outside of the legislature. In the French constitutional system, the Premier and Ministers are not members of the legislature though they hold office at the pleasure of the legislature. In fact, there is an explicit French constitutional provision called the "incompatibility rule" which requires a member of the legislature to resign from his seat it he decides to accept office as a Minister. Both systems manage to keep an effective control on government policy and expenditure without the requirement of Ministers being members of the legislature. We should take these working arrangements into account before deciding between a presidential or parliamentary executive.

Transformation of Society

It is generally accepted that in primitive social organisations power tended to be concentrated in one or two individuals or institutions; the tribal chief in early society was the repository of all power relating to that society. In the Mahavamsa narration of King Elara’s sense of justice (Ch.21) we get a glimpse of how society functioned those days. He defined the law (legislature), the "bell of justice" was hung in his bedchamber so that the complaint came direct to him (executive), and he decided on the guilt and punishment (judiciary).

As society changed and became more complex we begin to see a sharper delineation of social functions and such functions getting associated with distinct institutions. The American academic, Professor Fred Riggs, explained this phenomenon in his theory of "prismatic society" using the analogy of how a ray of sunlight breaks up into its constituent colours (rainbow colours) when made to pass through a glass prism. What can be inferred from this exposition is that as society’s functions become more complex there is a natural tendency for these functions to get separated and for the separated elements to be made the responsibility of different institutions. The value judgment in Riggs’ theory is obvious because it is a rejection of the totalitarian society which tends to concentrate the control of all functions in the state.

Against this backdrop, the transformation of our constitutional system needs a closer examination. The Soulbury Constitution provided for the separation of the judicial function and vested it in the judiciary, but the executive and legislative functions were somewhat fused and made responsible to the legislature. The 1972 Constitution proclaimed the legislature (National State Assembly) as "the supreme instrument of state power" and vested in it the legislative power, the executive power and the judicial power, except that the last function was to be exercised by courts established by law. Here we observe a complete fusion of powers, at least notionally. The 1978 Constitution provided for a clearer statement of separation of powers. Article 4 vests the legislative power in Parliament, the executive power in the President; the judicial power is to be exercised by Parliament but only through courts established by law. Jurisprudence and judicial precedent have combined to leave no doubt that the judicial function is to be exercised solely by the judiciary, Thus, for the first lime we have a clear statement of separation of powers into the three arms of government. If we interpret Fred Riggs’ prismatic theory explained above in its normative element, then, a reversion to the parliamentary executive system would be a regressive step, socially.

The Way Forward

If we accept Montesquieu separation of powers as a desirable norm (to which view the writer subscribes), then, we have to examine how best the articulated problems relating to the present presidency could be addressed and tackled. The instruments to control presidential excesses are already in place, except that they cannot be invoked because of certain habits we have got accustomed to. The instruments are Impeachment Motion and No-confidence Motion. In addition, there are the PAC, COPE and Committee on High Posts to oversee the administration, but they are ineffective because of governing party domination of these Committees.

The Impeachment is the best device to keep a recalcitrant President in cheek. Unfortunately, it cannot be used so long as the President has a loyal following in Parliament that will do his bidding. Similarly, No-Confidence Motions can keep Ministers in check, but Ministers do belong to a parliamentary club that places greater value on mutual back scratching than serving the national interest. In fact, in our entire parliamentary history there isn’t a single instance where a Minister was forced to resign on a No-confidence Motion. Thus, we see that the real weakness lies in the composition of Parliament and the way it is organised. The focus on the presidency in misplaced; it is a mis-diagnosis. The searchlight should fall on Parliament to redeem it from its supine state and to usher in reforms to make it an effective check on executive power in keeping with the Montesquieu dictum that "one power should be a check on the other."

A Free and Independent Parliament

In the early nineteen nineties the late Dr. Chanaka Amaratunga, in a little known essay, argued a strong case for a "free and independent" Parliament. His thesis fell short of an espousal of the separation of powers, but he urged very strongly for the independence of Parliament from executive domination, and for the freedom of the MP from party control. His ideal of the MP was essentially Burkean, an MP whose primary loyalty is to the national interest as opposed to party or parochial interests. Of course, this argument was flawed to the extent that a person elected to Parliament on a party ticket with the patronage of party leaders cannot really be expected to be that "free". Some may even argue that it is the party that won a mandate, not the individual.

This dilemma can be resolved if MPs are elected without party nomination in a first past the post electoral system. There can be no PR, because there are no party labels attached to candidates. Each candidate contests on his own standing within the electorate, with political parties and other associations free to support one candidate or the other. If one searches for a precedent for this electoral process it is there in the Donoughmore system of electing members to the State Council. Thus can Chanaka Amaratunga’s dream of a "free and independent" Parliament be actualized.

The Synthesis

How does all this relate to the starting point of this essay i.e. to put forward a case for the retention of the presidential system, when important political parties appear to be moving in the opposite direction?

The urgent need to combat presidential excesses is conceded, but the remedy does not lie in abolishing the presidency. Rather the better strategy should be to strengthen the powers of Parliament and to make it an effective check on presidential power. Constitutionally, separation of powers should be further entrenched by requiring Ministers not to be a part of the Legislature. Of course, experienced politicians can take up ministerial office, but then they cannot continue as MPs. We need full-time MPs and full-time Ministers. Also, there is a lot of professional talent in the country to be tapped for ministerial responsibility.

For Parliament to be a really effective instrument, it has to be saved from the clutches of political party domination. Today, Parliament is completely colonised by political parties, and in true colonial fashion these parties tend to exploit it for their own purposes. In this regard, Chanaka Amaratunga’s plea for a "free and independent" Parliament is like a breath of fresh air. His objective can be achieved by calling for parliamentary contests without political party nominations. In the process, the controversial PR system would get automatically eliminated. We have already a healthy precedent in the electoral system of the Dononghmore State Council. It is admitted that entrenched political parties will resist such a change with utmost rigour. Colonisers do not give up their acquisitions easily!!

Finally, the choice before us is whether we move in the direction of a plurality of power centres or embrace the idea of a "supreme instrument of state power". This is a value judgment and the writer’s preference is for the former. Not only must the plurality extend to the three arms of government acting as checks on each other, but also it must reach beyond to embrace religious Nikayas and Orders, the media and the academia as independent institutions acting in synergy to foster good governance.

-Sri Lanka Guardian