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| Sunday, 29 September 2002 |
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Features |  |
| News Business Features Editorial
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Constitutional checks and balances : Should Presidential powers be retained? by Raj Gonsalkorale The current feud between two power centres, the President and the Prime Minister begs the question whether we are really ready for co habitation and whether what is going on in its name is an absolute farce. One cannot but feel that we are still not mature enough and have not had the experience of democracy to overcome the ongoing feud between the two power centres and engage in real cohabitation. Either it is this or the two major political groupings have such diverse political philosophies and economic and social agendas that they simply cannot even run parallel let alone in convergence. The inability to accept democratic outcomes, possibly due to absence of structures and mechanisms that facilitate expression of supporting and opposing views, without being labelled as either supporters or opposers of one political party or another, could be regarded as a consequence of inadequate exposure to a culture of democracy in Sri Lanka. In the main, any significant expression of supporting or opposing views are spearheaded and sponsored by political parties, with opinions becoming either black or white, with little room for grey areas for discussion and negotiation. Such acute polarisation, and absence of structures and mechanisms outside political parties to engage in discussions without fear or favour, begets violence as the only means of expression when views become so diametrically opposed. Sri Lanka has witnessed more than its share of such activity, particularly during elections. We may be witnessing the emergence of a UNF political, social and economic agenda that is far removed from that of the PA. Some analysts are anticipating that the UNF government will bring in new laws to restrict trade union rights and security of employment, further relaxation of terms and conditions on foreign investment and introduce a political order that is drastically different to the aspirations of the PA alliance. If these analysts are correct, then the political, social and economic philosophy of the UNF will be quite distinct to that of the PA, and the power centre that represents the PA, the President, will naturally oppose the introduction and implementation of such a UNF agenda. The real reason for failure of cohabitation will therefore be more than a clash of personalities, or simplified politics, but something more fundamental and deeply philosophical. Right One cannot take away the right for the UNF government to pursue their political, social and economic agenda. The PA had this same right when in government. The difficulty in Sri Lanka and generally in developing countries is that the electorate is never given an indication of what these philosophies and strategies are and neither does the electorate demand to know what they are. In these countries elections are often not fought on serious issues, but on grandiose new promises, and the failure to honour past promises and, on personalities. In reality, cohabitation probably has not worked so far due to the fear of being on the wrong side if peace is achieved and a dividend follows which will ensure that the side responsible for achieving it reaps all of it, while the good work done by the other side in bringing it closer gets forgotten, and is labelled as a failure. Such is the challenge and excitement, and harshness, of politics. No one gets a second chance, and the Prime Minister knows it. The President had her chance, and undeniably she contributed immensely towards bringing peace closer, if not anything else, by shifting the focus of the conflict from one of war to peace. However, she did not succeed for whatever reason in culminating her efforts, and now the people have passed on the challenge to the Prime Minister. If he succeeds, he will naturally reap all the kudos. He could be magnanimous and recognise the contribution made by the President. If he fails, he will slide down the slippery slope to defeat, and on the way he might very well look for scapegoats, and for him the most effective target would be the President. The current impasse with cohabitation may be solved with the 19th amendment, if it is passed in Parliament, and perhaps at a referendum if the Courts order one. However, in terms of providing political checks and balances, wittingly or unwittingly, it may not be in the best interests of the country to enact the 19th amendment in its present form, as a curtailment of the powers of the Presidency could dilute the reserve powers assigned to the President to provide those political checks and balances that would at least narrow the divergence between the philosophies and strategies of the two major political groupings and provide a more stable and consensual form of governance. While stating that it may be best if the constitutional powers of the Presidency are retained in regard to dissolution, thus forcing the President and the Prime Minister to work together for the common good of the Nation, the party that has won a general election and a mandate from the people to form a government also needs some certainty of tenure without a political opponent breathing down its neck at every turn. A new government should be given an opportunity to show their vision, dynamism and ability to govern. It may therefore be opportune, and perhaps acceptable to political parties of all shades if the Presidents power relating to dissolution is codified so that it could be imposed only under certain conditions, and also if such powers are provided after a government has been in power for at least half of its tenure. A Presidency without power will not provide the desired effect of checks and balances, and a Presidency with unlimited power can be even more disastrous. The ultimate instrument available to the President to exercise power is the power to dissolve Parliament. Such power however cannot be open ended and unfettered, as that could become a worse threat to democracy than some acts of an unpopular government. Difficulties There is also a need to accept that the President represents an opposing political party, and if cohabitation is to work, an understanding of the partisan actions that the President may engage in wearing her party hat. Ideally, if both power centres could agree upon a programme of action at least at macro level, and an understanding is reached if required via a memorandum of understanding between the two power centres, there is a possibility that cohabitation could work. The ideal solution to overcome the difficulties associated with cohabitation would be to amend the Constitution completely and perhaps do away with the Executive Presidency as advocated by the President. Piecemeal pecking at the powers of the Presidency are seen by many as politically motivated actions particularly when leaders of the UNF, in particular some of its cabinet ministers, are seen engaging in personalised attacks on the President vowing to strip her of all powers and turning her in to a figure head. Such behaviour is not conducive to achieving any progress with genuine attempts to amend the Constitution in a non partisan manner and it has led to the President taking a very partisan line on some issues, especially on the peace talks with the LTTE, something the country simply cannot afford to do at this crucial juncture. A bipartisan approach is essential if tangible and long lasting progress is to be made with this very crucial issue. The dangerous partisan political line being taken by the President on the peace process unfortunately undermines her own power to act, if she is of the opinion, as Head of State, that outcomes being agreed upon with the LTTE are detrimental to the country. |
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