Colombo, Constitutional Reform, Peace and Conflict, Politics and Governance

The “Perils of Presidentialism”: Lessons from Sri Lanka

Transcript of a presentation made at the session on Forms of Government at the International Conference on Dynamics of Constitution Making in Nepal in a Post-conflict Scenario held in Kathmandu, Nepal in January 2010. The other panelists were the Hon. Bob Rae Q.C. M.P.Canada and Justice Pekka Hallberg, President, Supreme Administrative Court, Finland. The conference was co-hosted by the Nepal Constitution Foundation (NCF), Tribhuvan University Faculty of Law and the Supreme Court Bar Association

Let me begin by thanking you Mr. Chairman and the organizers of the conference for inviting me to speak this morning. We in Sri Lanka watch with very keen interest the constitution making process in Nepal. Those of you who are familiar with the constitutional and political developments in Sri Lanka will know that we have been struggling for the last 15 years to change our constitution. Whenever we have tried to reform our Constitution even before that our process has been flawed. Our process has not been half as participatory or as inclusive as your process has been. But we live in hope because fundamental constitutional reform is essential for our country. When another attempt is made, hopefully, in the not too distant future, we shall certainly look to the developments of Nepal in the last two to three years for inspiration and guidance.

I will like to share with you the Sri Lankan experience on one of the topics that I am led to understand the Nepal process is struggling with. I understand that the Constituent Assembly (CA) Committee on Determination of the Form of Government has presented a report in the form of a compilation of the official positions of the major parties rather than as a consensus document agreed to by all the parties. The stand of the UCPN (Maoist) in favour of a “consensual presidential system and multi-member direct proportional election system” comes as the first among them. The Nepali Congress has voted for the continuation of the parliamentary executive system with a nominal head of state (the President) and mixed-member proportional electoral system. The Communist Party of Nepal (UML) has opted for a presidential form of government elected by the legislature and a mixed electoral system. There is a fourth proposal from CA member Pradeep Giri (Nepali Congress) who has espoused the proposal of 25 NC legislators last year pleading for a directly elected prime minister and a ceremonial president elected by provincial and federal legislatures. This proposal is similar to the Israeli experiment in the 1990s, which was subsequently abandoned because of systemic contradictions that emerged in the implementation process.

I would like to, if I may in the same spirit Mr. Bob Rae referred to, highlight the dangers of the presidential system through the Sri Lankan experience. In our 61 years of independence we had the parliamentary executive model for 30 years and it had the presidential executive model for 31 years. I do think Sri Lanka offers a very good case study for you as you debate this question of whether you should have a presidential executive or a parliamentary executive. I might also remind you that Bangladesh had a similar debate and after a brief flirtation with the presidential model, then reverted to the parliamentary executive model.

I have used deliberately in the topic of my presentation the “Perils of Presidentialism” which is the topic of seminal article written by Professor Juan Linz, the Sterling Professor of Political Science at Yale University in a seminal article that he wrote in 1990 in a journal called the Journal of Democracy. Although it was written a long time ago I think the literature and the scholarship that has followed has critiqued the Linz thesis somewhat, but has really not refuted the basic argument that Professor Linz made in the article. I suggest the members of the Constituent Assembly and civil society who are interested in this issue of forms of government read a copy of Linz’s article.

Linz’s basic thesis was that the presidential system generally promoted authoritarianism and undermined liberal democratic values and institutions. I quote from his article.

“A careful comparison of a parliamentarism as such with presidentialism as such, leads to the conclusion that on balance the former i.e. the parliamentary system is more conducive to stable democracy than the latter. This conclusion applies especially to nations with deep political cleavages and numerous political parties.”

Linz focused primarily on several countries of South America and Spanish speaking world. He mentions Sri Lanka in passing at the beginning of the article but I believe that the Linz thesis applies very much given the Sri Lanka experience of presidentialism from 1978 to the present. In the interest of time I shall briefly outline the Sri Lankan experience and then comment on it using where relevant some of Juan Linz’s arguments.

When Ceylon/Sri Lanka became independent in 1948, its first post independence Constitution, the Soulbury Constitution, provided for a British style Parliamentary Executive with a Prime Minister as its head. The Queen of the United Kingdom continued as a constitutional monarch with a local Governor General as the head of state in her absence. When the United Front Government of Sirimavo Bandaranaike took the lead in espousing the need for a homegrown or autochthonous Constitution in the early 1970s, the Constituent Assembly rejected a proposal to introduce a presidential system and opted to continue with a parliamentary executive model. The First Republican Constitution of 1972, therefore, which was operational until 1978, was similar to the Soulbury Constitution in terms of the form of government but replaced the Queen with a nominal President appointed by the Prime Minister.

When the United National Party won a resounding victory at the parliamentary elections of 1977, it decided to introduce a new constitution and largely at the insistence of its leader, J.R. Jayewardene, it proposed the introduction of an executive presidency. Though this was opposed by most of the other political parties since the ruling party could obtain a two-thirds majority vote in Parliament on its own, it was able to introduce the Second Republican Constitution of 1978 with a executive presidency, unilaterally. The dangerous trend of unilateral constitution making rather than consensual constitution making, or the instrumental use of constitutions by governments in power in the interests of governments in power, that had commenced in 1972, continued much to the detriment of constitutionalism in the country.

In 1978 the advocates of presidentialism basically put forward two arguments in favour of the presidential model. The first was the need for stability and strong government. The second was that the presidential system would actually empower the minorities as a President, the main political actor, would have to be elected by the whole country rather than from a small constituency. The justification was that since a successful presidential candidate would have to attract votes from the north and south of the island and from all ethnic and religious, this would also encourage moderation in the policies of the candidates.

One has to seriously reflect upon these two justifications for the presidential system. What do we mean by stability? I think this is a very important question. Prior to 1978, we had in Sri Lanka nearly 50 years of franchise. Every five years we changed our governments at elections that were basically free and fair. While some people may describe this as a sign of instability I would argue that in the long term it was actually a sign of stability. It is significant that post 1978 we have had much more instability in terms of respect for constitutionalism, the rule of law and the legitimacy of democratic processes. I believe that the proponents of the presidency for stability argument really were suggesting that a “third world” country like Sri Lanka needed a strong government, that the political and economic challenges of a developing country required that there should be a strong government that could take tough, unpopular decisions that was in the long term interest of the country. The chief architect of the 1978 Constitution President J.R. Jayewardene famously once said, “We need an executive freed from the whims and fancies of the legislators”. How this statement fits with the principles of liberal democracy is of course is an interesting question.

The second argument that the presidential system empowers the minorities is, in my opinion, the more powerful one. It needs to be examined carefully. I think the experience in Sri Lanka has demonstrated that the minorities are empowered, but only at the time of the presidential election or during the campaign. The empowerment is, therefore, limited and not a continuing one. The problem is that once the President is elected he or she is so secure in power, is so powerful, that s/he becomes virtual elected despot. Thereafter it is extremely difficult, not only for the minorities, but for anyone for that matter, to exert influence or pressure or for public opinion to influence the President. This is a huge problem in Sri Lanka. Indeed, at the forthcoming presidential election in Sri Lanka, the voters face a terrible choice. They have to choose between a very authoritarian incumbent President and a former military commander with no experience or record of commitment to democracy. Many voters agonise over such a horrible choice which highlights, I think, one of the fundamental flaws of our presidential system in particular but also many presidential systems in general. The dilemma faced by the voters in Sri Lanka is that they know that though the candidates may make various positive promises or state all the correct positions or appear to be committed to the rule of law, they also recognize that on the day after the election, on 27th January 2010, whoever is elected will be virtually uncontrollable and unaccountable because no person or institution can exercise an effective check on the office of the President under the Sri Lankan Constitution.

I must emphasise one more feature of the presidential system in Sri Lanka. We have what has been described as a mixed or hybrid Presidential/Parliamentary system or a semi- presidential model. Our system has also been described by a well known political scientist who was a champion of the 1978 Constitution, Professor A.J. Wilson, as Gaullist, because he argued, that it had several features of the French system. It seeks to combine some of the features of purely presidential system with the British parliamentary executive model. So we have a President directly elected by the people for a 6 year term. The President is the head of State, head of government, Command in Chief of the armed forces with special responsibility for the defence of the country. S/he is the head of the Cabinet of Ministers, chooses the Prime Minister and appoints the cabinet ministers who hold office at his/her pleasure.

A feature of the British parliamentary system that we have adopted in our model is that the President has to choose his or her cabinet members from the members of the legislature. The President can also assign to himself any cabinet portfolio and much to our concern the Presidents of Sri Lanka since the early 1990s have also retained the portfolio of finance which in my view is unconstitutional and violates fundamental principles of parliamentary democracy. If one examines the history of parliamentary democracy one sees that the main way by which parliament exercises control over the executive is by controlling the purse strings and through the effective control of public finance. Parliament cannot exercise such control if the Minister of Finance is outside the legislature.

The President of Sri Lanka can dissolve legislature virtually at any time without having to consult anyone. He has wide powers of appointment- of judges, persons to key institutions such as the armed forces and the police, commissions, election commissioners, secretaries to ministries and other public servants, governors of provinces and the Attorney General. In 2001 a constitutional amendment, the 17 Amendment to the Constitution, was adopted to reduce these powers of appointment by requiring them to be exercised on the recommendation of a Constitutional Council with nominees from several political parties and the Leader of the Opposition, a feature that was inspired by the Nepal Constitution of 1990. Though it worked reasonably well from 2001-5, the amendment has been intentionally violated by the government of Sri Lanka since 2005.

The President wields even more power when the country is under a state of emergency. In Sri Lanka, since 1970 a state of emergency is more the norm rather than the exception particularly because of the ethnic conflict we have had for many years. In such circumstances, the President can promulgate emergencies regulations which even trump or override the laws of the parliament. Furthermore, the President has a sweeping, blanket immunity from judicial surveillance. S/he cannot be made a party to any legal proceedings for anything done in his official or even private capacity. So if you are married to the President, you probably won’t be able to divorce the President while he is in office! The President can also appeal to the people directly, over the heads of the legislature, at a referendum seeking popular endorsement for a Bill that has been rejected by the legislature.

The only check that we have in the Sri Lankan constitution and indeed one that Linz argues, is one of the checks in all presidential systems, is impeachment. Under the Sri Lankan Constitution, however, an impeachment is virtually impossible. Two- third majority votes in the legislature on three separate occasions and the finding of guilt by the Supreme Court is needed. The whole process could take months and as indeed happened in Sri Lanka on the one occasion that an impeachment was attempted, the President can make use of the time and of course his enormous powers to “persuade” legislators to change their minds.

We have, therefore, in Sri Lanka what Professor C.R. de Silva, in a critique of the presidential system in Sri Lanka, has called the “overmighty executive”. This is compounded by the fact that the rival centers of political power i.e the legislature and judiciary – have very little countervailing power or control. Such a combination, therefore, is a recipe for the authoritarianism. We have experienced this increasingly in the last four to five years in Sri Lanka. I would like to also take this opportunity to warn against the dangers of hybridity or mixedness. Bob Rae has already referred to this in his presentation this morning. Sometimes when you mix two systems the danger is that you leave out the checks and balances of each system. If you had a pure presidential system where there is strict separation of powers, as our colleague from Finland highlighted this morning, between the legislature and executive, then perhaps the legislature would have functioned more effectively as a watchdog on the executive. Similarly in a parliamentary executive, where the most powerful political actor is a member of the legislature and continues to wield power only so long as s/he commands the confidence of the legislature, this promotes humility, accountability and responsiveness. But since in Sri Lanka, we have neither, there is a serious restraints on power shortfall that undermines good governance and constitutionalism.

Every system has its rationale, logic and its own scheme of regularized restraints. When you mix systems the danger is you might leave out some of the basic checks and balances. This is the reason why in Sri Lanka the presidential system has contributed significantly to the rise of the authoritarianism, the rise of unaccountable and unresponsive government in Sri Lanka. It has also had a rather corrosive and negative impact on liberal democratic institutions and values. I would like to expand on this on the time I have left referring to some of the arguments Juan Linz made in his article.

One of his powerful points in my view is that presidential system encourages a personalized style of politics and a kind of crude populism which is the very antithesis of constitutionalism. It builds on the style of politics which focuses on the individual rather than people with political experience, capacity and commitment to liberal democratic values.

Some scholars have even made the point that the presidential system is better for political outsiders to come in and take charge or take power as opposed to people from within the political elites and they see this as something positive. But I think it could be argued that this is negative. Think of Chavez in Venezuela, Morales in Bolivia, Correa in Ecuador, Estrada in the Phillipines, Takshin Sinawatra in Thailand, Wahid of Indonesia and of course Rajapakse in Sri Lanka. It would probably have been difficult for a Gordon Brown, a John Major, a Manmohan Singh or a Kevin Rudd to have become President if their respective countries had presidential systems. I am sure you have your parallels in Nepal. In Sri Lanka we have the example of one of our most experienced politicians, the perennial leader of the opposition, Ranil Wickremesinghe, who just can’t win a presidential election because he lacks some of those charismatic, populist attributes that has made Rajapakse such a success as President. We need to reflect on whether we need a system that encourages a personalised, charismatic and populist style of politics. We need to be conscious that such a system is likely to promote authoritarianism as it has done in Sri Lanka.

The other danger relates to what the fact that s/he is elected by the whole country does to the President in terms of ego and power and authority. It fosters a mindset where the President tends to think that because s/he is elected by the entire country s/he has the authority and legitimacy to basically do anything. It gives a person an exaggerated sense of is own importance. To use Linz’s own words “the risk that he will tend to conflate his supporters with the” people” as a whole.” For example if you look at Sri Lanka, President Rajapakse has deliberately and intentionally not implemented an entire chapter in our constitution designed to promote good governance, the Seventeenth Amendment to the Constitution. While various bizarre and unconvincing justifications for such violations have been trotted out by friends of the government, the basic reason seems to me the fact that the President just did not want to implement a chapter in the constitution that reduced his discretion, patronage and power. It is almost as if he took the position ” I am the President, I am elected by the people; I should be able to appoint whomever I want to key institutions.” In Sri Lanka certainly therefore, presidentialism has fostered a kind of crude populism that is very dangerous from a liberal democratic perspective. As you know as constitutionalists we are not only concerned about how people are elected, but we also perhaps more concerned about the extent of their power and restraints on their power. Populism as described earlier is the very antithesis of constitutionalism.

Linz also discusses the defence of presidentialism in terms of stability and rigidity. I was struck by the stability argument that is used often in Nepal debate. I think the experience of Sri Lanka is that what is often used to justify stability has resulted in a kind of unresponsiveness and strong government that goes against the interest of the people. The corruption, nepotism and the abuse of power that Sri Lanka has experienced in recent years has created enormous problems with respect to good governance and generated widespread cynicism about politics in the minds of the people. In recent years Sri Lanka had to deal with a strong separatist movement led by the Liberation Tigers of Tamil Eelam or LTTE that promoted, not surprisingly, an obsession with national security. The cumulative effect of all these factors created a negative kind of stability- authoritarianism.

The third argument that I would like to borrow from Linz is that the danger of presidential system is that it promotes a winner takes all or zero sum game outcome. A good example of this will be the forthcoming presidential election in Sri Lanka. The future of the Rajapakse Administration, members of his family who occupy important positions, cronies, party, are all at stake. The stakes are very high. In fact the outcome of the presidential election will impact upon the parliamentary election which is due in April/May. You will recall the argument made last evening by the Minister of Federal Affairs on the need to promote consensual politics, coalition politics and power sharing arrangements. This becomes extremely difficult when you have a presidential model because the President is so powerful that it is very difficult to have a meaningful power sharing arrangement because the Prime Minister and other cabinet ministers will have relatively far less power. In Sri Lanka we had a brief and positive experience of cohabitation- the President from one party with the Prime Minister from another, from 2001 to 2003. It proved extremely difficult to work and lasted for a short time because powers were so loaded in favor of the presidency.

The fourth point that Linz highlights is the danger that the presidential system could devalue democratic institutions. This has certainly happened in Sri Lanka since 1978. It is particularly tragic in the Sri lankan context because as you know we had a very strong tradition of the rule of law, parliamentary democracy and universal franchise since 1931. If you read the Hansards, the debates in the parliament in the 50s, 60s and 70s, the quality of parliamentary debates was very high. Parliament functioned as a deliberative assembly as indeed it is expected to. We had a strong committee system. In fact in the early 1990s, I had a meeting with a delegation from the Nepal parliament that came to Sri Lanka to study our public accounts committee which was considered a model committee. All that has gone today. That tradition has ended and we have had in the last 20 years or so a shift from parliament as the main locus of political power, debate and discussion to the presidential secretariat. The presidential secretariat is full of unelected presidential advisors, subject to little if any parliamentary oversight and is part of the presidential patronage politics that I referred to earlier. This has had a corrosive effect on parliament as an effective democratic institution.

Capable people want to enter parliament any more in Sri Lanka because parliament is no longer the main political institution in our constitutional structure. The quality of parliament has, therefore, suffered. The deliberative and scrutinising functions of Parliament have suffered drastically. Not only has the parliament been devalued but I would argue that the institution of the cabinet of ministers has been devalued as well. It is no longer the focal point for policy debate and formulation. Linz made this point in his article. He says that a presidential cabinet it is less likely to include a strong minded people because all the people appointed to the cabinet hold office at the pleasure of the President. In a parliamentary executive model, on the other hand, you will find that though cabinet ministers and the Prime Minister are sometimes from the same party, there are invariably strong members of the party, persons the Prime Minister has to appoint whether s/he likes them or not, and therefore there is greater likelihood that the quality of the cabinet will be enhanced. Cabinet ministers could resign from the cabinet, go to the back benches and then make matters extremely difficult for the Prime Minister.

A related point that I think is a very important point in the context of South Asian politics is that the parliamentary system promotes a system where there will be less arrogance on the part of the wielders of power. In 1971, one of our Marxist politicians, Colvin R de Silva, defending the parliamentary executive model, stated that a virtue of the parliamentary executive model is that the Prime Minister has to be continuously accountable to the parliament.” The Prime Minister knows that s/he can lose his/her position at anytime if s/he ceases to command the support of the house or the confidence of the house, for instance by a vote of no-confidence. In a presidency it is virtually impossible to remove the President. Furthermore, the Prime Minister is a member of the parliament, sits in parliament with his parliamentary colleagues, is not cocooned in a presidential office far away from parliament. During Question Time, for example, we have all seen how Gordon Brown gets a hard time in the British House of Commons. This is very healthy and it creates a sense of humility, accountability and a healthy sense of irreverence for the person who wields the main political office in the country.

In South Asia where generally our political culture is so hierarchical, where we have very little internal party democracy, where we have a strongly entrenched welfare state with patronage politics etc. the weaknesses, the dangers and the perils of presidentialism that Linz highlighted apply even more forcefully given that political context and reality.

I would like to briefly comment on the proposal that is floating around in Sri Lanka and which I believe has been floated in Nepal as well- the idea of a nationally elected, so called, executive Prime Minister. It was tried in Israel from 1992 to 2001. It was applied or worked for three elections. There were some very Israel specific reasons for the introduction of this strange model. It was felt that the system of proportional representation practiced in Israel gave too much power to small parties. But after three elections it was abandoned and it was acknowledged as a failure. I think it is important to study why Israel flirted with the idea and then abandoned it, before we think of introducing it either in Sri Lanka or in Nepal.

Let me conclude, Mr. Chairman, by summing up my arguments. The Sri Lankan experience with presidentialism has been a negative one when viewed from the perspective of constitutionalism, the rule of law and the protection of liberal democratic values and institutions. Our democratic traditions have been seriously undermined as a result of presidentialism. In 1971 when the proposal to introduce the presidential system in Ceylon/Sri Lanka was made, one of our most distinguished liberal Prime Ministers, Dudley Senanayake made this statement which has turned out to be prophetic-

” The presidential system has worked in the United States where it was the result of a special historic situation. It worked in France for similar reasons. But for Ceylon it would be disastrous. It would create as tradition of Caesarism. It would concentrate power in a leader and undermine parliament and the structure of the political parties. In America and France it has worked but generally it is a system for a Nkrumah or a Nasser, not for a free democracy.”

Secondly I have tried to use Linz’s “Perils of Presidentialism” article as the basis of the critique to suggest to you that perhaps the lessons from Sri Lanka may be of universal application. The particular form of presidentialism in Sri Lanka is problematic but perhaps the Linz thesis highlights the fact that the concept of presidentialism also has serious flaws.

Finally, many constitutional commentators in Sri Lanka have quite often, unfortunately in my view, cited an English poet when they have talked about the subject of forms of government. Alexander Pope said “For forms of government let fools contest, whate’er is best administered is best.” I hope I have convinced you, however, that the form of government is very important. It is a very important topic. It can have profound implications on constitutionalism and constitutional governance as a whole. So in a nutshell, Mr. Chairman, my message is simple. Please don’t follow the advice of Alexander Pope (or any pope for that matter!). Please don’t follow the mistakes of Sri Lanka and beware of the perils of presidentialism. Thank You.

  • Dr. Dayan Jayatilleka

    So, let’s see : Rohan Edrisinghe thinks that Presdentialism is the problem rather than the absence of the separation of powers and thus of checks and balances that the US presidential system is locked into; he has a problem not only with Chavez but with US educated economist President Correa of Ecuador; he places Chavez, Correa and Estrada in the same basket; he thinks that Ranil Wickremesinghe keeps losing because of his absence of ‘ presidential charisma’ rather than his policy of appeasement of the separatist terrorist LTTE. No wonder this guy has no credibility or intellectual influence among the Sri Lankan public and Lankan federalism is so pathetically puny as an opinion trend. Luckily the Nepalese have authentic ‘organic intellectuals’, highly educated political leaders such as Pushpa Kumar Dayal and Baburam Bhattarai — quite distinct from from Rohan’s hero Ranil and Lankan leftists such as Somawansa — who will ignore this watery porridge of a policy prescription in their programmatic project for the people of Nepal.

  • Pearl Thevanayagam

    Dr Edirisinghe has lucidly and incontrovertably put forward his points on the ‘perils of presidentialism’.

    As he rightly pointed out even the only concession to oust a president through impeachment failed due to the powers bestowed on the President to prorogue parliament and allow enough time to lapse thereby allowign the mud to settle.

    This happened to Premadasa in September 1992. Lalith Athulathmudali, Gamini Dissanayake and co passed an impeachment motion and Premadasa promptly prorogued parliament.

    Rohan’s predictions came true and it would indeed be difficult to rout out this authoritarian menace the people have taken upon themselves. As President said in his interview with Al Jazeera he is here to stay. Forever.
    Successive Presidents who came to power on the pledge of abolishing Executive Presidency cited the JVP insurgency and LTTE rebellion as reasons for continuing it.

  • niranjan

    Dayan J,

    Why is it that Ranil W lost by a narrow margin of about 180, 000 votes in 2005 if a majority of the people were convinced that he was an LTTE appeaser?
    Charisma also matters in a Presidential candidate along with the ability to show that such a candidate is a man of the common people and speaks the peoples language which is Sinhala. Ranil also prefers to wear trouser and shirt as opposed to President Rajapakses national dress.
    Ranil has no popular appeal precisely because he is not a common man and his Sinhala is not as good or as convincing as Mahinda Rajapakses.
    All former Presidents had charisma JRJ, R Premadasa and CBK except perhaps for DBW.

  • Pearl Thevanayagam

    Why should Dr Jayatilleka show knee-jerk reaction to Dr Edirisighne when he says that Ranil lacks common-man charisma as opposed to the Presdient who could articulate well in Sinhala.

    Ranil has many negative points when it comes to voters electing him and he has plenty of skeletons dancing out of the cupboard such as the Batalanda torture chambers among tohers.

    Dayan has implicit trust in the President notwithstanding his abyssmal record in the area of human rights.

    Having said that Mahinda shows symptoms of Chavez, a military man, who rose to power since 1999 on the pledge to alleviate poverty but is now a concern for the EU that he is fastly descending into authoritariansim.

    Chavez like Mahinda is also a strong believer in suppressing the media.

  • Humanist

    I agree with Rohan that the presidential system has been the bane of Sri Lanka and a parliamentary system is better suited to counter the hierarchical social system of the country.

    However, I disagree with his comparison of Ranil Wickremasinghe with Manmohan Singh,. MS might be not charismatic but he is positively amiable and understands the realities of a developing nation – in contrast to RW. As for MR, It’s not only that RW cannot compete with him because he cannot speak Sinhalese, but his communication skills, even in English, outside his own charmed circle, are zilch. The man does not know the next thing about how to win friends and influence people and he tries to be a politician? The UNP is very unlikely to win as long as he is at their helm and if they win, it is despite him not because of him. The biggest favor he can do to the country to make sure that MR won’t last forever is to step down – fast.

  • The Geneva conventions clearly stipulate that in a war or military combat, the combatants captured by the enemy sides should be handed over to the International Commission of the Red Cross(ICRC), to be kept in a prisoner of war camp, to be supervised by the ICRC and maintained by the UN.

    Prisoners of war exchanges were done by the government of Sri Lanka(GOSL) and the LTTE during the war called “Eelam war” by the LTTE and “terorrist war” by the GOSL.

    But the images and interviews telecast in the “Hard Talk” program of BBC yesterday, showed that the GOSL, the enemy of the LTTE, captured Tamil kids, branded them as “Child soldiers” and dumped them to be supervised by the military.

    The kids were being indoctrinated to accept the colonisation of Tamil Eelam(TE) by SL and accept the military occupation of TE by it, in a place called “rehabilitation centre”.

    Every morning, probably against their will, the Tamil kids were asked to sing “Namo Namo Matha”, which is a Buddhist mantram in Pali, the meaning of which is not even well understood by most Sinhalese but called by them as their “National anthem”.

    Gross violation of Childrens rights has taken place under the very nose of the UN.

    Inspite of the presence of UNICEF in SL, which appears to be Indian controlled than UN controlled, the rights of children are being ignored.

    Also, the violation of rights of Sinhalese kids in Buddhist “Daham Pasal” are totally ignored by the UNICEF in SL upto now.

    Any sensible person seeing the television images will quickly realise that all the children were not real “Child Soldiers”.

    Most children appear to be kids, who in extreme fear of the ruthless, criminal, torturous and barbarous Sri Lankan military, had asked or gone for protection by the LTTE, who in turn probably had taught them self defence and resistance.

    The great tragedy is that the UN and the International Community(IC) have grossly failed to protect the rights of these children, though seriously guaranteed by the UN. This has happened inspite of Ban Ki Moon visiting SL after the war.

    The truth takes time to establish itself but at last it does. This has happened in SL.

  • justitia

    “We need to be conscious that such a system is likely to promote authoritarianism as it has done in sri lanka” – R.Edirisinha.
    This is the inherant danger when an executive president who tends to ignore those provisions of the constitution which will dilute his stranglehold on perpetuation of his succession forever in politics, on conferment of favours on persons unsuited for just governance because they are kith and kin and political supporters, on the judiciary and state prosecuters and law enforcemet agencies, on appointments to public service, on the conduct of free and fair elections, and ignores corruption and waste merely to suit his political caucus,gets elected – as has happened in sri lanka.
    Authoritarianism has transformed into totalitarianism.
    Those who sing ‘hosannas’ too are entrenched, with their perks.
    A profligate foreign minister ran riot antagonising the entire diplomatic service – is now replaced by an ‘yes’ man who whitewashes the regime.
    We can only watch and hope for the best.

  • Heshan

    J.R. was honest in at least some respects – the man was not a die-hard fascist or addicted to nepotism. He himself could handle something like the Executive Presidency. However, the picture changes when you have a villager from Hambantota… such people get carried away by influence and are eager to get their family involved in politics as soon as possible. In particular, when the villager was an ex-JVP member, things are bound to get even worse.

  • Tmama

    Sri Lanka achieved independeance in 1948 against the wish of its minority leaders. Prof Asoka Bandarage records in her book the many demands for 50 -50 made by Mr GG poonambalam, in the thirties and forties. THe sheer impossiblity of conducting a rule of law all through late 50 and 60s are recorded by another commentator no less person than the Cabinet Secretary of the time Mr BP Peiris.

    Many special privileges and the economic strength minorities held grew all through the sixties. While Sinhala schools produced entrants to Arts faculty destined to unemployed pool that culminated in JVP insurrection 1971, Tamil scholools excelled in Sciences which had well paid jobs in the end.

    THe Cynide wearing young men emerged in 70s, with of standardisation of Advncedlevel results applied to greater weight to backward Sinhala provinces in the university entrance and other minor privileges. Also Sri Lanka faced an embargo from US administration after the take over Petrol service stations belonging to Oil companies after the that was the forerunner to the Terrorismafter the 1971 constitution change under the mentoring of FP leaders as recorded by Dr Michel Roberts. The sad events of 1983 was a sequel to loss of many lives by remote controlled bombs by the powerful Terrorist group infull swing by 1980. That in turn led to shameful events of riots of 1983. Icelandi and Norwegian scholars should give greater time to study the strngling of of the Parliamentary system by a determined minority with great privileges and economic clout.

    TOday Sri Lanka realise the power exercised by various drug smugglers, money men in the West who maintain so called independent newspapers and political parties.

    Presidential system provides some cover to the man in the street from these unseen powers.

  • wijayapala

    If not for Edrisinha’s rather blatant partisanship and his goofy reference to Ranil, I would’ve thought this was not a bad article. It is certainly better than Publius’s pro-federalism piece.

    Mahinda supporters who praise the Executive Presidency have to explain why it took over 25 years to win the war, and how it will benefit Sri Lanka after Mahinda is gone. Mahinda may have won, but before him there were FOUR Presidents who lost the war.

    Add to that the fact that the war began AFTER the Executive Presidency was established (to promote “security and stability”).

    Sri Lanka should not adopt US style presidentialism/separation of powers. It is notoriously inefficient and worked only because the US had the economic resources to waste on it. Here is a far better read than Juan Linz’s critique that compares the US and UK systems of governance:

    The Institutional Foundations of Democratic Government: a Comparison of Presidential and Parliamentary Systems, by Terry M. Moe and Michael Caldwell, 1994.

  • NAVIDI SL

    One may write and espouse their views supported by the comments of this and that professor. Firstly, let me strongly say that one of the proven failures of specialist academics is their inability to comprehend and incorporate other disciplines into the analysis and conclusions.

    One does not have to be a professor of politics, constitutional reforms or similar to learn that parliamentary democracies does not necessarily bring about stability and prosperity. Spain, Greece and not to mention the austerity measures to be taken by EU countries including Britain and Germany are obvious examples. With the economic power houses India and China spreading their tentacles, I wouldn’t be surprised at the prospect of western democracies becoming more autocratic in the face of dwindling living standards.

    Yet, the presidential systems adopted by South Korea and Taiwan to name a few has transformed their countries into socially stable economic power houses. Furthermore, the parliamentary systems such as in Singapore is not necessarily liberal and democratic.

    Then, why should people in Nepal listen to one who is blinded to facts?

    1)Sri Lanka is an evolving democracy where majority is still practice feudalism supported with colonial vestiges. The social values are based on a hierarchical system even within the families. Western style city living educated ‘liberals’ such as Rohan very earnestly used these features of the society to claim supremacy of knowledge and tell others how to manage country’s affairs. He should respect the verdict of the overwhelming majority of voters of a highly literate country to elect a leadership which they believe would improve their living. It is also a proof that the majority is convinced that, under the current situations, the Executive Presidency is the most appropriate for the way forward.

    2) Only an empathetic strong and popular leadership could bring about progressive change implementation that can help to re-shape the political, economic and social order from a feudal hierarchical to something liberal and dignified where people treat each other with dignity.

    3)Since the establishment of the Presidential system, the SL living standards bettered than neighbours bar Maldives. Of course city dwellers having better time than those in rural areas.

    4) In my view, the powers of the Executive Presidency was the main thrust in winning the war and giving the stability and peaceful settings to the Island. War was won by soldiers coming from poor rural families while Colombo elites were watching the events unfolding on the TV while sipping a cup of tea. It is ironical that city slickers who made little contribution to ending the war now reap the most benefits.

    So what are you whingeing about?

  • wijayapala

    Dear Heshan,

    He himself could handle something like the Executive Presidency.

    It is good to see you forgive JR for his role in the 1983 riots. Jesus would be very proud of you.

  • rajivmw

    Dear Wijeyapala,

    I respect and admire your contributions on this site immensely, but what is this need to constantly mock Heshan’s Christianity? I usually disagree with what he says, but he’s never struck me as being some religious nut. It’s childish provocation and I think you’re doing yourself a disservice.

  • Raj

    Rohan,

    I appreciate your application of Linz’s work to the SL context.

    Like most people, I’ve felt the executive presidency is deeply flawed and should be abolished or radically reformed but you’ve laid out what may be the strongest argument against it that I have ever read. Thank you.

    You should consider writing an abridged version and publishing it in one of SL’s newspapers to reach a wider audience.

    People who have received mail order like Phds are posing as experts and confusing the people.

    As a legitimate constitution expert (and overall as decent a person I have met) you should feel a sense of responsibility to increase the frequency of your publications, speeches, etc. to counter their efforts.

    No pressure 😉

    Raj

  • Pearl Thevanayagam

    Tmama is way out of league. July ’83 would not have occurred had not Premadasa paraded the bodies of 13 soldiers mrudered by the LTTE.
    Why did the LTTE murder these soldiers?
    They raped three women teachers.
    This was never made public by the Colombo media.
    I am no apologist for the LTTE but unlike other Tamil militants the LTTE did not tolerate rape, drugs or theft.
    The LTTE were authoritarian not unlike the present regime but they did bring a semblance of justice when other Tamil militant groups ran riot demanding ransoms etc. and went on a filthy rampage of raping women and engaging in drug related crimes.
    In their eagerness to rout out the caste system they also murdered middle-class tamils such as St John’s College principal Anandarajah and the TULF parliamentarians Amirthalingam and Yogeswaran.
    The LTTE has many parallels to the JVP in that the class and caste system suffocated the lower class and caste as determined by the so called higher caste (a very disputable fact) which erupted as insurgencies and rebellion.
    We are paying the price of our forefathers who were so hung up on class that we forgot the ordinary masses command the majority.

  • wijayapala

    Dear rajivmw,

    Kindly explain why you were silent this whole time while Heshan was ranting against Buddhists, Muslims.. everyone except for Christians, yet I’m the one being childish.

  • wijayapala

    Hi NAVIDI SL

    Yet, the presidential systems adopted by South Korea and Taiwan to name a few has transformed their countries into socially stable economic power houses.

    That’s fine for S. Korea and Taiwan. In SL though, the institution has been a proven failure.

    In my view, the powers of the Executive Presidency was the main thrust in winning the war and giving the stability and peaceful settings to the Island.

    Let me give you a history lesson, and I’ll try to make it very simple for you to understand.

    Executive Presidency started in 1978. SL was at peace, having recovered from the JVP uprising (which was defeated relatively quickly by Prime Minister Sirimavo Bandaranaike) as well as Mrs. B’s failed economic policy. Tamil militancy was beginning its first small sparks in Jaffna, but was not catching flame. JR comes to power on the platform that he will resolve the “ethnic conflict” and bring peace and stability to SL.

    Ten years later (1988):

    1. the Indian Army is occupying northeastern Sri Lanka, fighting

    2. the LTTE and propping up a puppet provincial govt in Trincomalee that is raising an

    3. illegal army (Tamil national Army),

    4. the second JVP uprising breaks out in response to the IPKF arriving and the government is helpless.

    There are FOUR major armed forces (LTTE, IPKF, JVP, TNA) that are tearing the island apart by the time JR leaves office (not contesting the next election).

    See how much the Executive Presidency had accomplished in only ten years!!

  • NAVIDI SL

    Dear Wijayapala

    Firstly, I would be very thankful if you consider writing an article (factual) to enlighten me (and others like me) on what and how SL institutions have failed under Presidential System. A discussion followed would be of interest to many and shall envision a more participative democracy.

    Secondly, the numbered events you listed may be circumstantial. If you insist your theory is correct, I would like add:

    5. Annihilation of LTTE in 2009 and giving everyone a chance to experience long lost peaceful settings.

    In passing, I might say that major hindrances to rapid progress in Sri Lanka is that A) island is bogged down by irrelevant and dogmatic philosophies which has resulted in feudalism and neglect of the disadvantage B) Two sets of values are used to measure individual achievements – one for the western styled and another for others (majority).

    Cheers

  • Heshan

    rajivmv:

    As another poster pointed out in a different thread, Wijapayala is nothing more than a closet racist who tries to cloak his racism in semantics. Unfortunately his ability to make actual arguments that contain any substance is nill, hence the bizzare ad hominem attacks.

  • rajivmw

    Wijeyapala,

    I have certainly not been as prolific as you have, but if you look through the threads, you’ll see that I haven’t been silent to Heshan’s ranting. But here’s my point. This site has to play unfortunate host to a stale old assortment of racists, elitists,’patriots’ and whiners. On the other hand, your comments are consistently thoughtful, original and inspiring. So the occasional cheap shots from you are jarring, especially in this instance where they are void of your usual wit and irrelevant to the subject at hand.

  • wijayapala

    Dear NAVIDI SL,

    Firstly, I would be very thankful if you consider writing an article (factual) to enlighten me (and others like me) on what and how SL institutions have failed under Presidential System.

    Unfortunately I do not have the time to write an entire article, but haven’t you noticed how the civil service has deteriorated over the last few decades? SL used to have the most efficient and professional civil service in Asia. The process of its decline began under the parliamentary 1972 constitution, but most of the damage was done under presidential rule.

    5. Annihilation of LTTE in 2009 and giving everyone a chance to experience long lost peaceful settings.

    You didn’t answer my question: why did it take so long for the presidential system to defeat the LTTE?

    If Sri Lanka had a parliamentary system from 1983 all the way up to to November 2005, then your argument would make sense and we could say that the presidential system may have ended the war. However, the Executive Presidency had been established even BEFORE the war had started!

  • NAVIDI SL

    Dear Wijayapala

    Did some research on Sri Lankan post-independence history which also benefited me.

    For your information the following occurred in Sri Lanka during the Parliamentary System:

    1) Haratal in 1952,
    2) Commencement of Emergency Rule in 1957,
    3) Tamil riots in 1958 followed by many subsequent disturbances that did affect the economy as a whole,
    4) Unsuccessful coup d’feat in 1962,
    5) JVP insurrection in 1972,
    6) Commencement of LTTE insurrection in 1976,

    7) Re-org of civil service with the commencement of semi Government Corporations in 1957,

    8) Executive Presidency commenced in 1978, eliminated both JVP & LTTE.

    Bye.

  • Heshan

    The term of the Presidency in Sri Lanka should not be limited by a written Constitution. It should be subjected to the decision of the people through an election as it is the sovereignty of the people that was supreme, National Freedom Front Leader and Construction Engineering Services, Housing and Common Amenities Minister Wimal Weerawansa said.

    Therefore no restriction should be imposed on the people’s right on the election of the next President of the country as stipulated in the 1978 Constitution, he added.

    http://www.dailynews.lk/2010/06/12/news50.asp

    This is the point I was making, before being interrupted by some idiots. In the first place, J.R. would not have given portfolios to people like Wimal Weerawansa. Secondly, J.R. would not have contested for more than 2 terms… not even CBK tried to go that far, even though (she) CBK got carried away by the Executive Presidency. Mahinda Rajapakse is basically using his “victory” from the war as an excuse to become President for life. It is not something J.R. would have done.

  • NAVIDI SL

    Heshan

    The primary reason why I would not support an extended term is too much experience kill creativity, innovation and Sri Lanka does not deserve a dogmatic leaderships as in the past.

    But, I would not worry too much about his re-election in 2016. There would be many things occurring between now and then. Right now, I rather support him to bring about better living to Sri Lankans, especially to rural disadvantaged.

    What is needed is to develop an alternative leadership to rival his political skills, international stature, personal charisma and not blaming him for his convincing abilities.

  • wijayapala

    Dear NAVIDI SL,

    2) Commencement of Emergency Rule in 1957,
    3) Tamil riots in 1958 followed by many subsequent disturbances that did affect the economy as a whole,

    I’m not entirely sure what your point is. The creation of the Executive Presidency did not stop anti-Tamil riots, judging by both the Big One in 1983 as well as the more localized one in Trincomalee in April 2006.

    The observation I’ve made, which everyone else has missed, is that all major anti-Tamil riots took place under only two leaders: SWRD Bandaranaike and JR Jayawardene. Personal leadership played a key role. And that is the problem with the Executive Presidency: too much power to just one person.

    4) Unsuccessful coup d’feat in 1962,

    Key word is highlighted above. In any case it wasn’t an actual coup attempt (d’etat, not “d’feat” which has no meaning) because the officers were only discussing it before they were caught.

    Executive Presidency commenced in 1978, eliminated both JVP & LTTE.

    Actually the JVP was defeated in 1972 and the survivors thrown in jail. It was President JR Jayawardene who released them.

    And once again, Executive Presidency took 31 years to defeat the LTTE (if you count 1976 as the LTTE’s starting point, whereas I take 1983 as the proper starting point of the war).

  • wijayapala

    In the first place, J.R. would not have given portfolios to people like Wimal Weerawansa.

    Instead, JR gave portfolios to people like Cyril Mathew. It’s so nice to see Heshan standing up for Sinhala racists.

  • Heshan

    Navidi SL,

    The primary reason why I would not support an extended term is too much experience kill creativity, innovation and Sri Lanka does not deserve a dogmatic leaderships as in the past.

    I am not sure what he has shown in terms of creativity and innovation… although it does seem he is good at manipulation.

    But, I would not worry too much about his re-election in 2016. There would be many things occurring between now and then. Right now, I rather support him to bring about better living to Sri Lankans, especially to rural disadvantaged.

    Right now Basil Rajapakse has given big construction projects to China… the Chinese are employing a 100% Chinese labor force to do the job. Clearly the construction projects do not benefit any local communities (at least in the short-term). For example, they do not ease the burden of employment. In the long-term, SL will owe big money to China; it will also be forced to grant certain concessions to China, concessions which may impinge on national security. For example, Chinese warships will be able to freely use the Hambantota Port… the Hambantota Port will become part of the Chinese strategy to exert influence over the Indian ocean nations. What you should ask yourself is why SL did not employ local labor and build the port on its own? Is it because Basil would have missed a huge commission?


    What is needed is to develop an alternative leadership to rival his political skills, international stature, personal charisma and not blaming him for his convincing abilities.

    Actually, Mahinda’s international stature is very low. He does not have the support of the West, such as Ranil did. This raises the question of how Mahinda will bring in badly needed foreign investment to the island. So far Mahinda’s strategy has been to deal with China, Iran, Libya, and India, almost exclusively. But it is not enough – that is why he went for the IMF loan, and has sent teams of VIP’s to beg the EU for GSP+ concessions. The IDP camps were financed by the UN… most of the demining work (essential for resettlement in the North) is done by foreign NGO’s that represent European nations. I think it is important that SL cannot afford to pay for these things on its own, despite the new “friends” China/Iran/Libya. It has still has to turn to the West! The natural inclination is to question the lending practices of China/Iran/Libya/India, particularly China and India. Whom does such lending actually benefit, both short-term and long-term?

  • Heshan

    *they do not ease the burden of unemployment.

  • Heshan

    Instead, JR gave portfolios to people like Cyril Mathew.

    Participating in a race riot is different from changing the Constitution. Did they teach you the difference in the government school?

  • Heshan

    >b> Mr. Mathew was expelled from the Cabinet and the governing United National Party by President J. R. Jayewardene in 1984 after criticizing a conference called by Mr. Jayewardene to redress grievances of the Tamil minority.

    http://www.nytimes.com/1989/10/18/obituaries/cyril-mathew-sri-lanka-politician-77.html

    As I said, Wijayapala is a closet racist who does not argue with facts but semantic gibberish.

  • Susantha

    Heshan
    You are one hell of a funny guy.JR Jayawardene is a man like myself a capitalist and a nationalist.If you like JR you will like me as well.

    JR jayawardene played a huge role in preventing SWRD bandaranaike from devolving power to illegal immigrants/squatters in 1958-1959.

    He also played a huge role to make Sinhalese the national language in 1956 and he has been calling for it even in 1950s.

    JR Jayawardene played the main role in drafting the invincible constitution(which today is a legal barrier for illegal immigrants to claim right to our “Sinhala country” ) even parts of the Indo lanka agreement like east north merger is VOID due to the powerful constitution.Thanks to this Constitution that CBK was unable to provide devolution to illegal immigrants.The executive presidency which is one of the most powerful in the world gives immense power to crush enemies of the state(eelamists,marxists,jihadists,and crusaders)

    The constitution gives foremost place to Buddhism and prevents non Buddhists from becoming President.

    JR bravely even told western media that Sri Lanka belongs to Sinhalese something which Mahinda Rajapakse is unable to say.Even after the 1983 riots he defended sinhalese and told this directly to media.

    JR as soon as he came to power gave orders to EXTERMINATE all tamil armed groups and gangsters.He started building the military in the late 70s with the help of his personal contacts in Britain and Israel The sri lankan military especially the elites (SF,COmmmando,SBS,STF) will never be able to reach the present standard if not for the foundation he gave.

    He banned every political party that supports devolution and made sure their were no tamil separatists in parliament has Mahinda done this ?

    He gave immense support to build the the weli oya settlement which is a huge barrier for the creation of eelam and he gave much more support for many other sinhala settlements.

    He almost ended the war in 1987 if not for criminal rajiv ghandhi he didnt do anything different from what mahinda did in 2009.The amount of pressure and threat on JR s govt in 1987 to halt operations was much higher than the pressure in 2009.

    He introduced economic reforms as early as 1978 which put SL on track to the developed world(by 2000 SL would be a developed country if their was peace ) this process was destroyed by Indian imperialist Indira ghadhi by supporting the tamil imperialists to grab our land as India did not want SL to be powerful.
    every ecnomic benefit that Premadsa takes credit was work of JR.
    The foreign relation he built with US,EUrope,CHina Japan are very important.Japan stood up for SL at the security council in 2009 even though their was severe pressure from US,UK ,EU and NGOs to vote against Sl and japan continued to aid SL even though SL took the option of war in 2007.

    many Sinhalese dont understand the work of this great man who did so much to prevent the tamil terrorists from claiming the north east.

  • Heshan

    Susantha,

    I agree that J.R. was a capitalist… he and Ranil W. put forth the best economic policies the country has seen. I disagree with you, however, that lack of a war would have made Sri Lanka an economic giant. Each President/Head of State has different economic policies, and the outcomes can be entirely different. For example, Bill Clinton balanced the American budget (in fact, there was a surplus)… George Bush used the surplus to wage two wars, and now there is trillion-dollar US deficit. This is why I said before, you cannot expect one man to do everything. If you want the prosperity to last, the atmosphere must be there. S. Lanka was actually doing better during the CFA than it is right now, but as you know, the CFA was a farce, given the climate of nationalism and subsequent hostility towards Ranil W. from the majority community. In other words, the CFA was not meant to last – same thing for Ranil. Short-term prosperity vanishes quickly. Regardless of how many roads, highways, and ports China builds, if the average Sri Lankan is still earning $30 USD a month (I don’t know what the actual figure is), these roads and highways will only be good for tourist buses.

    The massive expense on defense spending is also unnecessary – a true capitalist like J.R. – who, having friendly contacts with the West – would have demilitarized immediately. It is impossible to claim that J.R. was a die hard nationalist – one cannot be a die-hard nationalist and still embrace globalization, such as J.R. did/would have done. MR is definitely a die-hard nationalist, and his economic and foreign policy reflects this. He no problem dealing with all the enemies of the West (Iran/Libya/China) etc. The IDP camps will probably shatter his reputation in the West forever, but I am sure that, given the choice, he would do exactly the same thing again.

    As far as politics goes, it is J.R. who proposed district development councils (DDC’s) in 1979… he also signed the Indo-Lanka Accord and never broke it. So it is incorrect to say that J.R. was against devolution.

  • wijayapala

    Dear Prof. Heshan

    How come JR did not fire your close friend Cyril Mathew during or even right after the 1983 riots? Did you personally intercede on Mr Mathew’s behalf?

  • SRINATH FERNANDO

    Executive President or the Executive Prime Minster?
    The idea of dismantling the roots of authoritarianism
    by Srinath Fernando

    The enactment of 1978 constitution was brought about by the JRJ Government in an effort to re-structure the battered economy inherited from the coalition government led by late Mrs Sirimavo Bandaranaike. Late Mrs Bandaranaike lost her civic rights for abusing her Prime Ministerial powers which she was enjoying under Westminster style government/ parliament. Pertinent question that begs an answer is what guarantee will there be that the Office of the Executive Prime Minister would be a sacred Office devoid of any authoritarian tendencies.

    1978 constitution was a culmination of an absolute power handed over to the JRJ on a platter by the people of this country. It has taken almost 3 decades but the idea of dismantling the authoritarian tendencies of the Executive President is still being debated. The constitution provides a clear procedure as to the mechanism by which the constitution can be changed. The major obstacle is the mechanism through which this is achieved. JRJ Government also introduced the Preferential Representation system of electing legislators which effectively padlocked the efforts to change the constitutional order neither from inside nor from outside. It is said in common parlance that the padlock so designed that it could never be opened unless it is broken. How, when and by what mechanism the constitutional order can be changed in the future is still an illusion. However it is high time all parties got together and devised a mechanism that would pave the way for a constitutional change which should encompass the remedies for all ills that beset the people of this country. We should not go far enough to study the constitutional law. A closer examination of the norms and niceties of the Constitution of India and how the Indian economy and democracy worked since independence would be a worthwhile exercise.

    The major economic milestones so far achieved under the Executive Presidential system were the massive economic activity brought about by the JRJ Government, poverty alleviation under Janasaviya program and the complete annihilation of LTTE on the battle ground. By the same token one cannot ignore the equally massive damage it caused to the society at large. Dictatorial tendencies and the evil of corruption, plunder and pillage also took root on a grand scale during the time the Executive Presidential system was in vogue. History provides us ample examples of how dictators are born. The origins of authoritarian tendencies are analogous to such systems in others parts of the world. It would be pertinent to examine how a dictator carries out his command. A dictator becomes weak only when he finds out that his command has not been carried out or has not been effective. This then allows him to use the command with a fear attached to it that if his command is not executed it will have consequences. So a dictator is always under the illusion that there may be people who may resent his rule or in common parlance there may be conspiracies to topple him.

    Prof. Ronald Wintrobe an authority on dictatorships has stated in his book The Political Economy of Dictatorship that “the people have good reason to fear the ruler but this very fear will make many among them to look for ways to get rid of the dictator. So the ruler has every reason to suspect that there are plots against the regime and one common method of removing the dictator from office has indeed been assassination. If the regime is to have any permanence, institutions must be created or maintained which deal with this problem by regularizing payments to its supporters and by providing for the systematic marginalization or elimination of its enemies” or even potential enemies. Now we have understood the psyche which drives a dictator. If the constitution has legitimized the actions of the Executive President how could it be interpreted as being dictatorial or authoritarian? Even the judiciary will have to interpret the executive action as being consistent with the constitution. Could we now examine honestly that the root cause of authoritarianism is the very constitution from which such orders are issued under a garb of executive action ?. How could we have allowed such a system to prevail for more than three decades?. Are people genuinely aware of the powers vested in the executive and the abuses the people have been subjected to? Are people so engrossed in their day to day chores not knowing the social responsibility of taking the authorities to task for violating the basic rights of people? Why has discipline in the Police Department relegated to that of a private army? Why are people being killed and tortured when they are under police custody? Why do police resort to extra-judicial actions ( Police officers have been provided with training in law enforcement techniques and criminal intelligence gathering but resorting to extra judicial methods are in negation of the professional standards of such officers) ? Why have the so called learned people in our society turned a blind eye to what’s happening under their very noses? The 17th Amendment was introduced with the blessings of all the major political parties in Sri Lanka but it had been in abeyance for the last couple of years. Where is the peoples initiative to press for its effective implementation.

    An effective democracy which takes care of the well being of the citizens must have in the first place the respect for Rule of Law, media freedom, and access to health, education and welfare programs. If the government in power is unable to provide none of the above it is considered as being a failed state. A critique may argue that since independence Sri Lanka has had all these in ample measure. History provides how successive Executive Presidents have resorted to extra constitutional methods of suppressing dissent. The supremacy of the legislature has to a large extent been reduced by the Presidential system of government. The legislature should be made supreme as that is the place where the Constitution and Laws of the Country are enacted. Accountability in government action has completely been eroded by the diktats of the Executive Presidential system. This is tantamount to meddling with the independence and integrity of public service which is a corner stone of democracy and good governance. Without accountability democracy cannot flourish. Above all a constitution must have the legitimacy and it should be a people friendly constitution with adequate checks and balances to protect encroachment of powers that would influence the will of the Legislature and Judiciary and the Public Service.

    We have overlooked a serious issue as to why the implementation of the 17th Amendment was in limbo. It was meant to bring sanity to the otherwise politicized public administration. The Constitution Council, Independent Elections Commission and Police Commission are not in operation. Critiques believe that this amendment was to a certain extent watered down the powers of the Executive President. The incumbent president has not given the due consideration it deserves to implement the 17th amendment. This may be due to his immense popularity with the masses. In the absence of his unwillingness to implement a section of the constitution the opposition is duty bound to build up public opinion in favor of its implementation. There seems to be a serious lapse on the part of the Opposition to bring adequate pressure on the government to get the constitutional order in place. This is a task the general public would have expected the opposition to have spearheaded vigorously. Unfortunately, the prosecution of the war against LTTE took precedence over all other considerations and people, too, were carried away by the emotional appeal over military success over the LTTE. An interesting remark came from Supreme Court Judge Justice Saleem Marsoof when addressing the Kamalasabayson memorial oration in August 2008. Justice Marsoof said that “sadly, the 17th Amendment to the constitution has become a dead letter due to the failure to appoint the members of the constitutional council, which has, for instance, compelled a fast aging commissioner of elections to continue in office ad infinitum and beyond even the compulsory age of retirement. In the absence of a properly Constituted Constitutional Council, elections are now held without the salutary oversight of the independent Elections Commission sought to be established by the said Amendment, and major appointments to the public service and the judiciary are made without complying with the mandatory provisions of the constitution. It is therefore essential to bring about changes in polity and attitude to create the climate for the appointment of the Constitutional Council so that it can begin to function once again. This is extremely important for the preservation of the rule of law”.

    It would be difficult to fathom the logic that that 1978 Constitution is harmful to society. Of course there are areas that need further refinement but the 1978 Constitution per se is a unique constitution. Only time would prove the future Executive Prime Minister (with limited powers) would be able to wriggle Sri Lankan society out of its current mess.

    Srinath Fernando is a Freelance Journalist and a Political Lobbying/ Government Relations Consultant

  • SRINATH FERNANDO

    Legitimacy of constitution making
    (The Island – By Srinath Fernando)

    Jeremy Bentham, an English philosopher, said that ‘public good ought to be the object of the legislator; general utility to be the foundation of his reasoning. To know the true good of the community is what constitutes the science of legislation; the art consists in finding the means to realize that good’. Contemporary politics amply demonstrates that politicians are no way concerned about the good of the community but rather their conduct and actions are proved to have been to amass wealth and other benefits for their own good, leaving the citizens in the lurch. It is a very sorry state of affairs that there is a considerable erosion of morals and values in our society despite the fact that Buddhism has survived almost 2300 years in Sri Lanka. We hear of some efforts by the Government to introduce some constitutional amendments and no citizen seems to be aware of what is in store for them, whereas the very process of constitutional making should have been an inclusive exercise. Unfortunately there does not seem to be any semblance of pressure being exerted by the civil society to make the process more transparent.

    President JRJ was swept into power in 1977 after a period of hard economic conditions and this resulted in a protest vote where the voter turn out was approximately 80% of the registered voters and the result was astounding 5/6th majority in parliament. The economic conditions necessitated more power to bring about drastic changes sought by the people. The result was in the shape of an all powerful president with tentacles extending to all sectors of the country, a monster recognised only in 1982, when late President JRJ decided to extend the life of parliament by a referendum. Executive action of the UNP regime was able to annul a Judgement of the Court of Appeal, concerning Late Mrs. Srimavo Bandaranaike, through an act of parliament, a clear encroachment on the judicial independence. It is almost 60+ years since we gained independence still the governance of the country is being experimented. It is rather the style of governance that is most needed not the constitutions. The constitution is meant to consolidate the power base of the ruling regimes in the past.

    It was very regrettable indeed that Government willingly kept the institutions that came under 17th Amendment in limbo, which was at the time of its adoption, was considered to be an exercise in good governance, as had been accepted by all the political parties. According to Rohan Edirisinghe, lecturer in constitutional law, the implementation of the 17th Amendment would have strengthened the sovereignty of the people as had been affirmed by the Supreme Court when it delivered its judgment on the 17the Amendment. (refer – interview by Sanjana Haththotuwa on YATV ). This argument is meant to debunk the theory advanced by Prof. GL Peiris that 17th Amendment violated the sovereignty of the people.

    Let us ponder for a moment the process of constitutional making in India. India has made mammoth strides in economic and social development and is on the path to becoming a super power. The Constitution of India was drafted through a process of a Constituent Assembly (CA) which comprised elected members of the provincial assemblies. The CA comprised leading political figures of the caliber of Jawaharlal Nehru, C. Rajagopalachari, Rajendra Prasad, Sardar Vallabhbhai Patel, Maulana Abul Kalam Azad, Shyama Prasad Mukherjee and Nalini Ranjan Ghosh. There was adequate representation of members of the scheduled classes. The minorities such as Anglo-Indian community, the Parsis, and the Gorkha community too represented at CA. There were also prominent jurists like Alladi Krishnaswamy Iyer, B. R. Ambedkar, Benegal Narsing Rau and K. M. Munshi, Ganesh Mavlankar. The interests of the women were represented by leading female activists such as Sarojini Naidu, Hansa Mehta, Durgabai Deshmukh and Rajkumari Amrit Kaur. Before the constitution was officially adopted there were sessions open to the public for 166 days, spread over a period of 2 years, 11 months and 18 days before adopting the constitution. After many deliberations and some modifications, the 308 members of the Assembly signed two hand-written copies of the document on 24 January 1950. Two days later, the dream of adopting a unique constitution was realized. There have been around 100+ amendments to the Constitution of India since it was enacted 60 years ago.

    In the year 2000, the Government of India, constituted the National Commission to Review the Working the Constitution to make suitable recommendations. The resolution to constitute the National Commission to Review the Working the Constitution says that it “shall consist of a whole-time Chairperson who shall be a person of distinction with knowledge and expertise of constitutional issues and in the working of the democratic institutions of the nation.

    It was further stipulated that besides the Chairperson, the Commission shall have not more than ten other Members who shall be selected on the basis of their proven expertise and knowledge in the field of constitutional law, economics, politics, law, sociology, political science and other relevant subjects. The Commission shall have a Secretary of the status of a Secretary to the Government of India to assist the Commission”. The terms of the reference was to “examine, in the light of the experience of the past 50 years, as to how best the Constitution can respond to the changing needs of efficient, smooth and effective system of governance and socio-economic development of modern India within the framework of parliamentary democracy and to recommend changes, if any, that are required in the provisions of the Constitution without interfering with its basic structure or features.”. This is a clear people friendly attempt by the Indian Government to review the constitution not just to change it, but to look into the working of the constitution. How nice, legitimate and democratic was the process!.

    Srinath Fernando is a Freelance Journalist and a Political Lobbying & Government Relations Consultant.

    (The Island)