THE EXECUTIVE PRESIDENCY AND THE

SRI LANKAN STATE: MYTHS AND

REALITIES

Ph
oto courtesy The Business Times
by Asanga Welikala
- on 01/20/2015

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. Jayewardenes 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 surveys 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 Silvas intervention regarding the potential illegality of
President Rajapaksas third term and the JVPs 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 Sirisenas 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 oppositions
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 councillorJeevani 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 Gaulles 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 Batistas 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 regimes 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 states
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. Jayewardenes 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 Jayewardenes 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 Welikalas 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.