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| Sunday, 6 July 2003 |
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The FDB memorial lecture : NM's prediction comes true Excerpts of Felix Dias Bandaranaike Memorial Trust Lecture delivered by Deshamanya H.L. de. Silva P.C. on Thursday June 26. The subject which I have chosen for this evening's address relates to the operation of executive government at the political level consequent on the pivotal structural change that was introduced with the 1978 Constitution. The strains, stresses and tensions attendant on the change from Parliamentary to Presidential government which sometimes verge on breakdown, are I think mainly attributable to the equally significant changes in our political culture and ethos that leaves little room for compromise. The dominant feature in this sphere is the emergence of violence and criminal conduct that is linked to large scale financial corruption and abuse of power and the breakdown of law enforcement, the changes consequent on social and economic factors and of course the exacerbation of the ethnic problem that continues to bedevil us. Although there was a special Constitutional Court under the First Republic Constitution of Sri Lanka this institution does not appear to have commended itself to the framers of the 1978 Constitution. The new Constitution conferred a sole and exclusive jurisdiction in the determination of constitutional questions and the interpretation of the Constitution on the Supreme Court (Article 125). As to which forum (a purely judicial body or one composed partly of men with political experience) would be more appropriate to the determination of such questions will always be a debatable matter. Nevertheless, it seems to me that, as recent events in the political arena have shown, a suitable mechanism for the resolution of constitutional problems and the reduction of friction, composed of a body of persons of eminence, removed from the hurly-burly of politics and insulated from the seductions of political patronage, may inspire greater public confidence in the working of our political institutions and the avoidance of political gridlock. Authoritarianism Should we continue with a Presidential Executive? Among Sri Lankans today it would be hard to find any enthusiastic advocates of Presidentalism. There is a deep-seated fear that Presidential government paves the way for authoritarianism. It is perhaps significant, as pointed out by Professor Fred Riggs, that some thirty-three Third World countries (but none in the First and Second Worlds, barring the United States) have adopted Presidential Executive Government. Invariably they have had to face political catastrophes in the form of coups d'etat which resulted in the seizure of governmental power, suspension of the Constitution, the imposition of Martial Law and authoritarian rule by the military. Examples that come to mind are Korea, South Vietnam, Liberia, Pakistan, and many African and Latin American countries. In contrast, he points out that almost two-thirds of the Third World countries which have adopted Parliamentary Executive systems usually based on the British and French models have had greater success and stability and avoided the breakdown that appear to characterize Presidential Executives. But once it is established and is fairly entrenched in a Country (and we have had it for twenty-five years, it seems like an incubus) an evil spirit that is not easily exorcised from our midst. Whatever be the merits and demerits of the system, there is general agreement that the changeover that was effected in our Country from a parliamentary system of government in which a Cabinet of Ministers headed by a Prime Minister, drawn from the elected legislature is charged with the control and direction of the Government of the Country to executive government of the Presidential type in which the President is elected directly by the people and is both the Head of State and the Head of Government is a watershed in our constitutional and political history. It is certainly the most turbulent period of our recent history. The genesis of the idea of adopting the Presidential Executive in Sri Lanka is found in a speech made by the First Executive President J. R. Jayewardene in December 1966 at the annual sessions of the Ceylon Association for the Advancement of Science, when he was the Deputy Leader of the United National Party. In advocating a presidential system on the US and French model he stated as follows: 'The executive is chosen directly by the people and is not dependent on the Legislature during the period of its existence, for a specified number of years. Such an executive is a strong executive, seated in power for a fixed number of years, not subject to the whims and fancies of an elected legislature, not afraid to take correct but unpopular decisions because of censure from its parliamentary party. This seems to me a very necessary requirement in a developing country faced with grave problems such as we faced today.' The rationale for its introduction was the need for the Executive to be free from the shackles of Parliamentary control. Evidently he did not envisage a situation when as now a President, despite the full panoply of executive powers, is virtually under siege from a hostile majority in the Legislature determined to thwart Presidential decisions. There was no indication at that time (1966) that the President was to exercise the executive power along with a Cabinet of Ministers. But the UNP election manifesto for the general election of 1977 clearly indicated such a development in his thinking for it said: 'Executive power will be vested in a President elected from time to time by the People...' The Constitution will also preserve the Parliamentary system we are used to for the Prime Minister will be chosen by the President from that party which has a majority in Parliament and the Ministers of the Cabinet will also be elected Members of Parliament. President Jayewardene did not indicate then how and in what manner the President was going to function when the person chosen as Prime Minister and others chosen as Cabinet Ministers were from a political party opposed to the President and constituted the majority in Parliament. Nor did the final draft of the Constitution indicate how this problem was to be resolved if the elected President had to face a hostile majority in Parliament, which refused to pass the annual Appropriation Act and was thus able to obstruct the implementation of all executive functions. Major weakness This was the major weakness of the 1978 Constitution and the Achilles heel of its center piece the Presidential Executive. Dr. N. M. Perera in his 'Critical Analysis of the new Constitution of Sri Lanka (1979), which was a trenchant criticism of this innovation and many other unusual features of this constitution had with remarkable foresight drawn attention to them. Recognizing that the five-sixths majority which the UNP obtained at the 1977 General election was an untoward event, Dr. Perera observed; It is inconceivable that the next general election will produce the lopsided configuration that we witness today, if only because the system of proportional representation that will become effective at the next election. It is more than likely that the political complexion of the next Parliament would be different from that flaunted by the UNP and its leader the President of the Republic. How will he function with a hostile majority in Parliament which can well refuse to carry out his policy? It could and would dry up the finances without which the Executive would be atrophied. (pg 21). This prediction was in large measure confirmed at the General Election of December 2001. He warned us that democracy itself would be in danger: If the Presidential system cannot co-exist with a Parliamentary democracy, then so much the worse for democracy, they would turn to a dictatorship as the next alternative (ibid pg 21). Neither President J. R. Jayewardene nor any of his constitutional advisers, including Professor A. J. Wilson, who was an ardent advocate of this innovation, have given us a satisfactory reply to this criticism or suggested a solution that is feasible or practical in the context of Sri Lankan politics. (To be continued next week) |
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