The 20th Amendment
The decision of the Janata Vimukthi Peramuna (JVP) to present a Private Members Bill on the abolition of the executive presidency holds out some hope that constitutional reform will not be completely forgotten in the remaining 18 months of this government’s term. As to whether it will succeed or not – there ought to be every reason why it should – will be determined by the post NCM political climate, in particular the evaluations as to which political actor retention or abolition will benefit most.
The abolition of the executive presidency has been at the centre of the politico-constitutional debate since its inception in1978. The original argument was that dynamic economic growth required a strong centre, whilst the argument against was that the concentration of power in a single office would lead to the consolidation of power in that office at the expense of all others, thereby facilitating dictatorship. Indeed as the country moved to meet the challenges presented to it, history seemed to be on a different track. As the country moved towards the acceptance of devolution as necessary for the sharing of power and a settlement of the ethnic issue, the arguments against the presidency grew, whilst at the same time there were those who believed that precisely because of power-sharing at the provincial level, a strong centralized national executive was needed. The issue has never been settled, although of course Chandrika Kumaratunga in 1994, Mahinda Rajapaksa in 2005 and Maithripala Sirisena in 2015 all promised to abolish it. Way back in 1994, the JVP candidate withdrew his candidacy in the presidential election on the promise of abolition.
Of course each who promised have claimed factors beyond their control in fulfilling the promise. It would need a two-thirds majority and a simple supporting vote in an island wide referendum thereafter. For years, the argument has been the parliamentary two-thirds; in 2015 that requirement seemed to have been sorted out. Two and a half years later, however, post NCM the situation is different. The two-thirds may still be a problem and as for the simple majority in a referendum, what does the SLPP actually think?
Mahinda Rajapaksa is the most popular politician in the country. He cannot stand however for the presidency a la 19th Amendment. Does he therefore support abolition now, become Prime Minister at the next General Election and depending on how healthy his majority is, go for abolition of the 19th Amendment and a reintroduction of the 18th?
For the SLPP, abolition does have the advantage of keeping Mahinda Rajapaksa central to every calculation they make and save them tackling the onerous problem of whether progress in the dynasty should be horizontally to brothers or vertically to the son. What is key for them is a general election – abolition of the executive presidency and anything else comes thereafter.
The JVP has said that it would canvas every political force on the issue. The TNA has made it known that they would support abolition as long as it was accompanied by a permanent resolution of the ethnic problem. Some smaller parties seemed to be convinced that 2005 and 2010 aside, the presidency can only be won with their support and are unlikely to support abolition. The UNP position will largely depend on the SLPP. There was a time however when the two did see things in the same light – a UNP supporting abolition on the grounds that Ranil Wickremesinghe would never win the political beauty contest the presidential election is.
It would seem like the problem of the executive presidency is not going to be settled on its own merits but rather on the tactical tipping and tilting in the balance of power between the UNP and the SLPP. One feature though has to be addressed as long as the 19th Amendment lasts and this relates to its impact on the executive presidency. As Asanga Welikala notes:
After the Nineteenth Amendment, the president is directly elected by the electorate as a whole for a term of five years, with a two-term limit. The president is the head of state and government and commander-in-chief, and is responsible, although not answerable, to parliament. The president is a member and the head of the cabinet of ministers, which directs and controls the government. Cabinet ministers (other than the president) are collectively responsible and answerable to parliament. The president appoints as prime minister the member of parliament who is most likely to command the confidence of parliament. The President may consult the prime minister, where he considers it necessary, in determining the number of cabinet and other ministries, in assigning functions to them, and reallocating such functions. However, the president can only act on the advice of the prime minister when appointing and dismissing cabinet and other ministers. The prime minister cannot be removed by the president and continues in office throughout the period the cabinet continues to function. The cabinet is dissolved if the prime minister ceases to hold office by death, resignation, or ceasing to be a member of parliament. The cabinet is also dissolved if the government loses a vote of no confidence, or fails to get its statement of government policy or the annual appropriations bill passed.
He further observes:
Although the classification might be debatable, these changes have plausibly been characterised as converting the 1978 Constitution from a ‘president-parliamentary’ to a ‘premier-presidential’ model of semi-presidentialism. After the Nineteenth Amendment, the cabinet, as a matter of law, is exclusively responsible to parliament and not simultaneously to the president. The prime minister cannot be dismissed by the president and this can only be done by parliament withdrawing confidence from the government as a whole. Since he remains the head of the cabinet and government, and can reassign functions between them without prime ministerial advice, ministers may wish to maintain cordial relations with him, but that is not a legal requirement. And of course, the president may well accrue greater de facto power in a situation in which, his party also enjoys a parliamentary majority.
To avoid a re-run of the last two months and more, abolition would be the way to go. The Nineteenth Amendment is insufficiently sturdy for the long haul. The issue therefore is what will replace it.