Abolishing the Executive Presidency:

It has to be done as a single issue -GL

Interviews by Manjula Fernando

Q: The government is now drafting a new Constitution, people have given a mandate to abolish the Executive Presidency. Do you think this is the right time to do that ?

A: A Constitution is not cast out of stone. It has to respond to changing needs. The drafting of a new Constitution is a desirable exercise. We support that.

You asked about the abolition of the Executive Presidency, I think there is strong public opinion in support of the abolition of the Executive Presidency. If a referendum is to be held, a significant majority would endorse that. It requires a referendum in addition to two a thirds majority in Parliament.

But if there is sincerity on that and if the Executive Presidency is bad for the country, it needs to be abolished immediately. The government cannot say it will be abolished, after five years.

If every president is to reason it that way the Executive Presidency will never be abolished. That has unfortunately been the situation in our country. However much an incumbent government says, it will do everything in its power to abolish the Executive Presidency, the people are cynical that no government would voluntarily abolish it.

During President Chandrika Kumaratunga’s tenure there was a similar move to abolish the Executive Presidency. There again a formidable problems arose from the transitional provisions.

The second point is the effort to abolish the Executive Presidency will be a futile if we tie it up with other things. If we are really committed, and if we are not saying it because it’s politically right, then it has to be done as a single issue.

There is strong conviction to abolish the Executive Presidency but if you tie it up with electoral reform and a variety of other things, it will never happen. Today if there is any discussion on constitutional reform, the abolition of the Executive Presidency and electoral reform are in the forefront of these discussions.

However, there are different views on electoral reform because it is a gut political issue. It concerns the future of political parties. Everybody agrees the present system is unsatisfactory, particularly the preferential system. In fact it brings out the worst in human nature.

An aspiring politician does not stand a chance as he must contest the entire district. Those who fund you will expect favours in return and colleagues are at each other’s throats. There is agreement that the system must change but there is no unanimity regarding an alternative.

If you are going to link the abolition of the Executive Presidency with the final agreement on electoral reform, that is a ruse for not going ahead with it. Abolition of the Executive Presidency is feasible, if it is treated as a single issue. A constitutional amendment can abolish the Executive Presidency. There will be a majority in Parliament. It will have the support of the people at a referendum.

Late Ven.Maduluwawe Sobhitha thera was to present himself as a common candidate on this single issue.

He publicly said if he is elected as the President, abolish the Executive Presidency in four months and go back to Naga Vihara. He did not tie it up with electoral reform.

There is a great deal of scepticism, whether this is going to happen at all.

Q: You were part of the 2000 draft Constitution. What went wrong, why didn’t it become law ?

A: One of the main problems was the transitional provision, the draft Constitution had a transitional provision. During the interim period the incumbent President would have the powers of the President and the Prime Minister. That was unacceptable to the Opposition. It was not a straight forward proposal to do away with the Executive Presidency immediately. Even today it is the same situation.

Q: The government is talking about a new Constitution altogether. Should the new Constitution entrench devolving of power to the Provinces ?

A: Devolution of power is already provided in the 13th Amendment. So before we think of adding new powers. Shouldn’t we look at the powers already devolved under the 13th Amendment. Are we ready to devolve those powers?

The 13th Amendment was a response to a particular situation. President J.R. Jayawardena was confronted with two rebellions. One in the North and the other in the South He appealed to the Indian Prime Minister Rajiv Gandhi, as to protect the legitimate government of Sri Lanka.

His military leaders confirmed that they did not have the strength to face two rebellions simultaneously. Rajiv Gandhi helped, but not unconditionally. He got a firm assurance, that minority issues will be addressed. The 13th Amendment was an outcome of that situation.

It makes sense to take stock of the changes that have occurred since then, after almost 30 years. We must also assess the 13th Amendment which was in our statute books for so long. Why is it that no government was capable of implementing it? Some wanted to implement it but found constrained by circumstances. Today the crux of the controversy is with regard to police power.

Q: That is the reason why the government is going for a new Constitution.

A: If that is the reason, it is not a valid reason. These are existing provisions, they are part and parcel of Sri Lanka’s Constitution, is there a political will to implement it? Are those provisions realistic, practical?

What is the use of calling for a new Constitution, if you are not ready to address those issues. As far as land is concerned there is already substantial devolution. Is the government ready to go further? Don’t forget the 13th Amendment survived the Supreme Court challenge by a whisker. The 13th Amendment was challenged on the ground that it was violated Article 2 of the Constitution which states that Sri Lanka shall be a unitary state.

Article 2 cannot be changed without a referendum. You cannot change the character of the Sri Lankan state without a referendum. The Supreme Court was divided. It survived the challenge because of Justice Parinda Ranasinghe’s vote who suggested a lifeline.

The 13th Amendment in its existing form was challenged that it was not consistent with the Constitution. It is not consistent with Article 2. We will no longer be within the framework of a unitary state.

Is that acceptable to the people of Sri Lanka at this moment ? There were different views at various times and we have experimented with various systems. Sri Lanka is like a legal museum, we have operated every system. The Westminster System, the Presidential System and different electoral systems.

In the light of all this, we must question ourselves, whether we want to go further than the 13th Amendment and if so, to what extent? Are we prepared to abandon Article 2 of the Constiutution? What are the repercussions?

Q: Are you suggesting the Government should abolish the Executive Presidency without having a new Constitution ?

A: No, we can bring an amendment to abolish the Executive Presidency and then to make consequential amendments. Once the Executive Presidency is expunged, from the constitutional provisions, there will be a gap. That hiatus has to be filled. That has to be done by consequential amendments. That is perfectly feasible legally and politically.

Q: Once the executive presidency is abolished, should the executive powers be shared between the President and the Prime Minister ?

A: The powers that were exercised by the President will have to come to Parliament. Some of it will be exercised by the Cabinet, some of it will directly come to parliament. Those are arrangements, that we can put in place. It is not a practical problem. The problem is the political will to do that.

Q: When the 19th amendment was debated, there was an issue with regard to the powers vested with the President and the Prime Minister.

A: There is no merit in doing away with an omnipotent president and replacing him with an omnipotent Prime Minister. The whole idea is to have checks and balances. So then, much of these powers will have to come to parliament. But there should be provisions made with regard to the security issues. Under the executive presidency, 13-A provided for very significant powers, to control extreme situations in the provinces.

If there is a breakdown of law and if there is a threat to national security, President has residual powers of intervention, those are powers we need. If the executive presidency is no more, there should be provisions to exercise those powers. Those provision has to be made, empowering the parliament through consequential amendments.

Q: With regard to the Prevention of Terrorism Act and the National Security Act. Should we continue these law?

A: These are undertakings that the government has given in Geneva and elsewhere. These are really promises made at the election time. And it is no secret that these promises had a lot to do with the voting patterns in the North. So now it is payback time. Those who were made promises are now demanding delivery.

There is huge pressure for the abolition of the prevention of Terrorism Act and significant watering down of the Public Security Ordinance which was enacted in 1947, even before we got independence. These have to be done on a proper appraisal of considerations connected with security not as a response to political promises that were given.