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Abolishing Executive Presidency: Reviving a broken promise?

07 May 2022

By Skandha Gunasekara In the midst of renewed public outcry to abolish the Executive Presidency, the question – is there adequate political will to follow through with the long-held promise – remains. If last week’s performance in Parliament by the Opposition, the Government, and the so-called ‘Independent’ group is an indication of the political will to push through the proposed 21st Amendment to repeal the Executive Presidency, it is now clear that all parties had other priorities. One of the first presidents to campaign on a platform of doing away with the Executive Presidency was former President Chandrika Bandaranaike Kumaratunga and her Government which was formed in 1994. However, they did not have the majority to do so. Thereafter, both terms of President Mahinda Rajapksa’s election campaign saw the abolition of the Executive Presidency as part of his promises; however, he went on to do the opposite, and in October 2010 further strengthened it through the 18th Amendment to the Constitution. The Yahapalana Government which assumed office in 2015 also made some attempts, but it was for more of a dilution of powers rather than abolition – mainly due to the need for a referendum, which the Government forwent and prioritised dilution over abolition – and brought in the 19th Amendment to the Constitution.  Thereafter, current President Gotabaya Rajapaksa did away with the reforms through the 20th Amendment to the Constitution, and added even more power to the Executive Presidency by passing the 20th Amendment in 2020. So why did successive governments which were elected on the promise of abolishing the Executive Presidency fail to do so? Lack of political will, lust for power hinders abolition  Constitutional Lawyer Bhavani Fonseka, speaking to The Sunday Morning, said that it was a lack of political will and lust for power once in office that saw the failures of multiple governments in their endeavour do away with the Executive Presidency. “Unfortunately like with any other reforms those promises don’t get realised and there’s no political will after you get into the office to abolish it. The closest we had was Maithripala Sirisena and the 19th Amendment, but that wasn’t an abolishment. That was reforming the office because I think when you get into the office you realise you enjoy certain powers. Any individual likes to have power. I believe that there was no political will to be seen in previous presidents to carry through those promises made in their campaigns.” Explaining why there was a wider call for the abolition now, unlike in the past, Fonseka said that it was because the actions of the current President had resulted in the present crisis, where masses have been directly affected. “The call has previously been only from particular sections like political groups, civil society, and other progressive actors. But now there is a mass call because people have directly witnessed the dangers of one individual exercising such powers without any checks and balances, and it has impacted people economically. If there is no effective check on this office, this is going to continue. People have directly seen and experienced the [negative side of] powers of the Executive Presidency and I think that is why you see the mass protests and the calls are much more widespread than before.” Call for abolition is nothing new She went on to say that certain segments of society had been campaigning against the Executive Presidency for decades, but that most of the remainder saw it as an issue for intellectuals and policymakers. “The call has been there for decades. Those who have studied the system of government and governance realised that the Executive President wields a lot of power as provided in the Constitution, and those who understand the need for checks and balances felt that one entity having such powers is very dangerous for democracy. However, many saw it as more of a Constitutional and academic issue; and even now people see a lot of these things as Constitutional matters.” She pointed out that the President’s careless moves, such as the decision to ban chemical fertiliser – which was enabled by his overarching power as the Executive – had resulted in people being directly impacted, which caused many hardships. This in turn opened the eyes of the public to the dangers of an all-powerful president.   “It is when people are directly affected and see it as the fault of one individual that such mass calls occur. For example, the fertiliser ban – it was a result of the Executive President disregarding advice from experts and deciding this would go through. The tax cut is another example. There are a whole series of measures this President has taken which no one was able to democratically stop. People have now seen and directly experienced the powers that were exercised, to a point of complete disaster, and that is why people – the regular citizens – are becoming more vocal, while earlier it was seen as a purely academic or constitutional issue.” Lawmakers need to step up However, Fonseka warned that while there may be a public outcry, it was ultimately in the hands of the lawmakers to bring about the needed legal reforms. “One needs to be very careful because while there is a growing demand to abolish, we don’t know if that will be carried through, because now it is very much a political question before Parliament. We will have to see if the parliamentarians or the Government takes it forward.” Political Analyst and Academic Professor Jayadeva Uyangoda said that the breakdown of democracy as well as of the political system were also reasons for the call to abolish the Executive Presidency.   “The experience that people have had is that it has led to what people in Sri Lanka call a ‘one-man rule,’ or what in political theory is referred to as Autocratic Authoritarianism; and it has eroded the democratic foundations of governance as well as the political system as a whole. I think these are the two main reasons why people are demanding that the Executive Presidency should be abolished. It has also certainly led to a system of an unaccountable government.” When queried on his views as to why the Government had failed to do the needful with regard to the Executive Presidency, Prof. Uyangoda pointed out the many legal (and other) hoops that needed to be jumped – such as the need for a two-thirds majority in Parliament – which contributed to hamper the reform process. “One [obstacle] is the constitutional obstacles to abolishing it. Any government would need a two-thirds majority plus a referendum. Only the Rajapaksa Governments, after J.R. Jayawardena, had a two-thirds majority in Parliament. But the Rajapaksas used that majority not to reform the system, but to further strengthen the Executive Presidential system and concentrate more powers into the hands of the President. “There were others – like Chandrika Kumaratunga’s Government in 1994 and then the Yahapalana Government in 2015 – which had difficulties in carrying out the reforms. The Chandrika Government did not have a two-thirds majority in Parliament, and we saw that in the Yahapalana Government there was no unanimity among political parties as well as within the Yahapalana regime about the abolition of the Executive Presidency. The 19th Amendment significantly reduced the powers of the Executive President and that was an important reform.” What lies ahead? The Samagi Jana Balawegaya (SJB) submitted a 21st Amendment Bill to the Speaker of Parliament which seeks to abolish the Executive Presidency and revert to a Parliamentary system of governance with the prime minister in charge.  The 40 independent MPs headed by the Sri Lanka Freedom Party (SLFP) also handed over their draft of the 21st Amendment, which would maintain the Executive Presidential system but have its powers diluted.  Meanwhile, the Government is also drafting its own 21st Amendment to the Constitution, which will bring back the provisions of the 19th Amendment.  The Government’s 21st Amendment is to be handed over to the Attorney General’s Department along with the proposed new Constitution.    


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