Photo courtesy The Business Times
If there was a central plank to the common opposition platform in the presidential election, it was about what to do with the executive presidential system in general and the Eighteenth Amendment in particular, in view of the crisis of democratic governance created by the insidious authoritarianism and pervasive corruption of the Rajapaksa regime. During the campaign, except for those who blindly supported the regime come what may, it was clear that there was a wide – and widening – consensus about the undesirability of the Eighteenth Amendment, both in terms of the abolition of the two-term limit and the removal of the Seventeenth Amendment restraints on presidential power. However, there was perhaps less of a consensus on the wholesale abolition of presidentialism, even though important sections of the opposition and civil society were committed to it. This was as it should be, for the positive case as to how a return to parliamentarism would address our problems with executive power is yet to be properly made. As I have argued previously, the malaise is with our political culture of democracy rather than institutions per se. But the new government must rigorously make the positive argument in favour of abolition and for parliamentarism, if that is the direction of constitutional reform that they intend now to take.
While therefore most of us can agree that the particular form of presidentialism embodied in the present constitution has been catastrophic for peace, order, and good government, and that something must be done about it before democracy is damaged beyond repair, opinion is divided on whether the solution is to abolish the executive presidency outright, or to reform it in such ways that its benefits can be preserved while removing its more egregious features. My concern here is with those belonging to this second category. Proponents of a reformed executive presidency rely on a number of assumptions and arguments that I feel should be more closely interrogated, for they seem to me to be myths that do not survive critical scrutiny. I am concerned with specific arguments made with regard to the Sri Lankan context in defence of an executive presidency, rather than an abstract debate about forms of government.
Let me be clear at the outset that I support the outright abolition of presidentialism and a return to what has sometimes been called ‘Soulbury Plus’, i.e., a constitution that replicates the form and substance of our independence constitution, which provided for a parliamentary form of government, a bicameral legislature, and the supremacy of the constitution and judicial review, but with the addition of a comprehensive bill of rights, an extensive devolution of power that constitutionally guarantees autonomy for the provinces, a power-sharing Senate, and a mixed electoral system weighted towards proportional representation balanced by the principle of fixed-term parliaments. It would be deeply symbolic for the country holding the chair of the Commonwealth to undertake its constitutional reforms in consonance with the shared values of that family of nations, and at the same time to do so through an autochthonous exercise of constituent power in this year of the 200th anniversary of the Kandyan Convention. I will elaborate on this scheme in the coming days as we undertake fundamental reforms to our constitution.
Myth No.1: The People of Sri Lanka Want the Executive Presidency
This is an astonishing claim given that the only time the electorate can be held to have voted positively in favour of presidentialism is the general elections of 1977. Indeed, when the choice was re-offered in elections in 1994, 1999, 2005, and now 2015, the electorate on all four occasions voted for the candidate that promised abolition or at least extensive reform to limit the powers of the President. And even the assumption about the 1977 mandate can be questioned because a general election is won or lost on the widest configuration of political variables. A parliamentary election is very different from a constitutional referendum on a specific proposition, or even a presidential election in which alternative proposals with regard to the institution itself can be made susceptible to a focussed debate, as happened in the last election.
In 1977, moreover, the UNP secured its massive majority against a deeply unpopular government that had inflicted political and economic disaster on the country over the previous seven years. The electorate then would have voted for the devil in order to get rid of the SLFP, and it had no way of knowing what presidentialism was to entail in the future. From the point of view of a country on its knees, J.R. Jayewardene’s rationales about stability and development would have sounded imminently reasonable and attractive. At least for the Sinhala-Buddhists, the vivid imagery he deployed of the righteous monarch and the virtuous society was deeply resonant in historical and cultural terms, and indeed it can perhaps be argued that this continues to be the case for the 47.6% of the electorate that voted for the losing candidate in 2015. But this is one of the worst possible rationales for the retention of presidentialism, if our aim is to establish a modern, republican, and pluralistic democracy, rather than some atavistic oriental despotism. Most unfortunately of all, the voices of the most articulate and principled critics of presidentialism at the time, Dr N.M. Perera and Dr Colvin R. de Silva, were so discredited by their association with the UF government that no one was inclined to listen to them.
With the benefit of bitter experience thus, the electorate has voted for candidates promising abolition or reform in the presidential elections of 1994, 1999, 2005, and now very clearly in 2015, because the issue was square and centre of the common opposition campaign, and on balance, they succeeded in linking the problem of massive corruption and wastage to the unchecked nature of the presidential institution itself. Even before the popular tide turned in favour of the common opposition with the blindside entry of Maithripala Sirisena into the fray, there is evidence that public opinion was turning against the excesses of presidentialism, if we consider the information in the Democracy in Post-War Sri Lanka: Top Line Report by the Social Indicator of the Centre for Policy Alternatives.
It is important to note that the survey’s fieldwork was done during June-July 2014. That is, before the result of the Uva Provincial Council election panicked the regime into an early presidential election, before the debate sparked by Sarath Silva’s intervention regarding the potential illegality of President Rajapaksa’s third term and the JVP’s public campaign that focused attention on these issues, and before the high-profile crossovers from the government to the opposition that gave the latter an inexorable momentum, even though abolitionist initiatives like that of the National Movement for Social Justice (NMSJ) had already commenced.
In this survey, 44.3% of respondents state-wide found ‘agreeable’ the statement that, ‘The Constitution should limit a President to serving a maximum of two terms in office irrespective of how popular he or she is.’ Only 27.6% found agreeable the proposition that, ‘There should be no Constitutional limit on how many terms a President can serve in order to allow strong Presidents to serve the country.’ Note that these questions were about presidential term limits, and not on the broader issue of presidentialism itself, and therefore we must be careful about how we interpret this data in relation to the question of reformed retention or abolition. But given that a significantly larger proportion of respondents felt that there should be more limitations on presidentialism rather than less, it is reasonable to assume that within the 20.8% who expressed ‘no opinion’ there would be many who felt presidentialism should be removed altogether.
Now with President Sirisena’s mandate the issue is perhaps moot, but those who are committed to abolition can take heart from these figures that they are espousing a cause which the electorate is more generally inclined to accept than not. The nature of the opposition campaign that delivered victory to President Sirisena must also be emphasised, for this was no ordinary election fought on routine policy issues. By the opposition’s insistence on putting constitutional issues at the forefront, it was nothing less than a battle for the soul of the nation. The monarchical incumbent invited the electorate to express its gratitude to him for winning the war (again) and for his mega-development projects. The opposition instead chose to remind people of their self-worth and dignity as citizens of a democratic republic. Against the odds – and some scintillating Sinhala oratory from the likes of Patali Champika Ranawaka and the young municipal councillor Jeevani Kariyawasam of Chilaw – the latter prevailed, to deliver a fourth mandate against presidential authoritarianism.
Myth No.2: A Strong State Needs a Strong Executive
No one can disagree with this proposition if what is meant by strong government is the effectiveness and efficiency of the executive within the constraints of democratic principles, including human rights and the rule of law. But some commentators who are in favour of the executive presidency seem to go much further, in implicitly arguing that we need a presidential strongman – a kind of Latin American El Jefe – in order to develop the economy expeditiously, to overcome the chaos of competitive and plural democracy, and in some accounts, even to put the overweening demands of parties representing ethnic minorities in their place. Such views are usually based on the assumption that majoritarianism is all there is to democracy: that as along as the executive president, usually a charismatic populist, is periodically elected, then the requirements of democracy are met. Such a thinly procedural conception of democracy is not democracy at all but a control model of government. In ignoring the need for constitutional government in-between elections, it rejects the critical substantive dimension of democracy reflected in such values as individual liberty, the rule of law, and limited government. Despite the patriotic and populist pretensions of many who represent this view, it is a paternalistic approach to government that holds the people in distrust if not in contempt, in that it assumes that a presidential cabal would always know better about what is good for the people than the people themselves.
It is also quite specious to equate strong government to presidentialism, when one considers the fact that Britain acquired, administered, and relinquished without domestic upheaval the largest empire the world has seen under the Westminster system. And if presidentialism were needed for a strong state, then a country like India would be ungovernable. India has managed to preserve unity in a context of mind-boggling diversity and become a global economic superpower under its parliamentary system, and its democratic traditions would ensure that its success is far more sustainable and stable – and certainly provide for a happier populace – than the authoritarian regimes of China or Russia.
One of the key rationales advanced in favour of the strong executive provided by a presidential system by J.R. Jayewardene from his earliest advocacy of the model has been its necessity for rapid economic development. This can be seen in his keynote address to the annual sessions of the Ceylon Association for the Advancement of Science in 1966 – something of an equivalent to de Gaulle’s second Bayeux speech of 1946. Let us agree in principle for the sake of the argument that a President unhampered by parliamentary horse-trading and compromises seems better able to take long-term and possibly unpopular economic policy decisions. But since we also have to protect countervailing principles of democracy and republicanism, the question becomes one of checks and balances and the constitutional and political channels for ensuring transparency of decision-making and the accountability of the strong executive. Rather than strike the appropriate balance, the 1978 Constitution encouraged the dominance of the executive presidency over the entire constitutional system, and through that the polity as a whole.
The Rajapaksa regime took this to another level, through the Eighteenth Amendment as well as through the many extra-constitutional and indeed downright illegal or criminal practices that defined its style and approach to government. Weak institutions and absent checks allowed for the cartelisation of the economy by the ruling family and its sidekicks, and we were well on the way to becoming something like Batista’s Cuba. This is admittedly not so much an argument against presidentialism as against the Sri Lankan form of presidentialism, but in reforming or abolishing the institution, we must bear in mind the dangers of an unchecked executive, in the context of a political culture that tolerates a high, but clearly not unlimited, threshold for authoritarianism.
Myth No.3: The Unity of Sri Lanka Depends on the Executive Presidency
The argument here is that the centralising force of the executive presidency is needed to contain the fissiparous and potentially secessionist Tamil periphery, and in a more sophisticated variation, that the devolution necessary to address the Tamil claims to self-government in the North and East must be countervailed and balanced by the cohering institution of an executive elected on a state-wide basis.
This is to conflate two separate issues. The challenge of ethno-territorial pluralism is met by treating minorities with respect and tolerance, including their constitutional claims to autonomy, and in this way to encourage their loyalty to the unity of the state. To focus on the control potential of executive presidentialism is to adopt the opposite approach, which is to treat minorities with suspicion and fear. When this is the basis on which the constitutional order is constructed, it almost becomes a self-fulfilling prophecy, because there is no incentive or moral suasion for minorities to give un-coerced loyalty to the state. Inter-ethnic and centre-periphery relations become a cat and mouse game in which each side is constantly trying to outwit the other rather than build mutual co-operation. This therefore encourages ethnic sectionalism and discourages the Sri Lankan nation-building that proponents of this argument also usually advocate.
Moreover, the most successful multinational states in the world – the United Kingdom, Canada, Spain, Belgium, and more vaguely India – which have managed to preserve their territorial integrity and unity while allowing autonomy, recognition, and representation for their sub-state minority nations are all parliamentary rather than centralising presidential democracies. The important point appears to be that in these most difficult of polities to hold together, the democratic and power-sharing potential of parliamentary government seems to be more successful in ensuring unity than the authoritarian control of presidentialism exemplified in the Rajapaksa regime’s approach to the North and East, which made for a fundamentally unjust and therefore chronically unstable constitutional order.
We might also recall here that the most active period of armed conflict occurred under a presidential constitution. The argument that the executive presidency was essential to winning the war does not hold when one considers how its centralising and unilateralist tendencies contributed to the creation of the conflict in the first place. What happened in 2006-9 was that we had a government that was prepared to jettison international and domestic legal controls and human rights in waging an all-out war on the Tigers. Under a similar socio-structural configuration of extra-constitutional majoritarian nationalism, the Tigers’ self-defeating strategic decisions (from the peace process onwards), and the conducive regional and international environment, the outcome of the war would just as easily have been the same under an autocratic prime minister. To attribute the Sri Lankan state’s prevalence over the Tigers to presidentialism is therefore misleading, and at least is not the whole story.
Myth No.4: The Executive Presidency Leads to Stable Government
We have never had stable government at any time since independence. While like de Gaulle it was J.R. Jayewardene’s conviction that the executive presidency would introduce stability against the vagaries of transient parliamentary majorities, we know from experience that presidentialism did not achieve this. In fact, the high-handed authoritarianism that it enabled aggravated conflict in both ordinary and constitutional politics, and not only has the political system been unable to avoid insurrection and armed secessionism, but also been unable to ensure peaceful government in most areas of public policy. A good example, given that it was also an early challenge for the French Fifth Republic, is the university sector that has been in turmoil for as long as anyone can remember. That important policy problems associated with this unrest have proved unresolvable by successive governments may have many explanations, but the fact of the matter is that the consensual government and strong leadership promised by presidentialism has done nothing whatsoever in this regard. Countless similar examples can be given.
But the more important issue in my view in this regard is not so much about this or that system of government – given that we have experimented with both parliamentarism and presidentialism in trying to ensure stability – but about our political culture. General notions of prudence that are central to constitutional democracy such as a commitment to an objective truth in public matters, a respect for rules, restraint, understanding, deliberation, and accommodation are not norms that are adhered to or even understood by either the governors or the governed: just look at the way we drive on our roads, or our congenital inability to form a queue. So long as this remains our way, then the institutional form of government is almost irrelevant to the question of stability and order. I hasten to add that this unruliness has a beneficial side from a democratic point of view: this is why an electorate that embraced Rajapaksa as the ‘Maha Rajaneni’ (Great King) in 2010 spurned his exhortation to ‘kala guna salakanna’ (to show him gratitude) in 2015.
Myth No.5: Minority Interests are Protected by the Executive Presidency
President Jayewardene’s advisor, Professor A.J. Wilson, came up with this rationale for presidentialism in the abstract in his early exegesis of the 1978 Constitution. The scales very soon fell from his eyes. Two recent illustrations will suffice for the purposes of this discussion in debunking this myth. President Rajapaksa won two presidential elections by neutralising the impact of the minority vote. In 2005, he benefitted from the boycott enforced by the Tigers in the North and East. In 2010, he banked on the overwhelming support of the Sinhala majority on the back of the war victory. He governed entirely in the interests of the majority, and either disregarded or humiliated the minorities in doing so. He was not entitled to expect, and neither did he expect, to gain the support of the minorities in 2015. This shows that in some conditions, it is entirely possible for a majoritarian nationalist to gain and retain the presidency without the minorities, and usually by adopting an explicitly anti-minority stance.
But does the overwhelming support of the minorities for President Sirisena in 2015, without which he would not have won, prove the opposite contention? I do not think so, for the reason that the minority vote came unconditionally to him, and what is more, the common opposition was careful to studiously avoid any reference whatsoever to the demands of the minorities let alone be seen to be promising anything to them, so as to ensure that sufficient numbers of the majority deserted Rajapaksa. All that the minorities are left with after the 2015 presidential election is the goodwill and decency of the new President and his government to treat them with some sort of respect, and when and if possible, to address their political and constitutional problems. Can this be even remotely regarded as an argument that the presidency ensures the protection of minority interests?
Dr Asanga Welikala’s edited collection, Reforming Sri Lankan Presidentialism: Provenance, Problems, and Prospects, containing over 20 interdisciplinary essays by Sri Lankan and international contributors, will be published by the Centre for Policy Alternatives (CPA) in February 2015.