Some critics say that the Executive Presidency is an alien mechanism added to the Westminster System of Parliamentary Democracy this country had been following since Independence up to 1978 and it has paved the way to drift Parliamentary Democracy to an Authoritarian Democracy or Dictatorship. They said the Executive Presidency has become a threat to the Supremacy of Parliament and Democracy at large.
The criticisms levelled against the Executive Presidency have generated from the concept that is Supreme and the Executive President should function subject to the Supremacy of Parliament.
Most of the adverse criticisms against the Executive Presidency have been raised by some disgruntled parties, mainly politicians and those who advocate hostile politics against Executive Presidency to promote their individual agendas. However, there is no noticeable threat or allegations against the Executive Presidency from the masses of this country.
In fact people prefer both Parliamentary Democracy and Executive Presidency instead of Parliamentary Democracy sans Executive Presidency due to the fact that they have already experienced that Executive Presidency is more effective in the process of decision making and implementation of such decisions when compared to the decision making process adopted by Parliament, particularly a hung Parliament the very existence of which depends on the support extended by minor political parties.
The Prime Minister being the Head of Executive is considered as ‘Primus inter pares’ (one among equals) in Parliamentary Democracy sans Executive President based on the Westminster system. In the process of decision making in that system the Prime Minister has to satisfy various agendas of political parties who had extended their allegiance to the Government.
Supremacy of Parliament
The concept of Supremacy of Parliament has derived from the concept of Sovereignty. Article 03 and 04 of Chapter 01 of the Constitution of Democratic Socialist Republic of Sri Lanka (hereinafter called Constitution) emphasised that ‘In the Republic of Sri Lanka Sovereignty is in the People. Legislative power of the people shall be exercised by Parliament consisting of elected representatives of the people and by the people at a Referendum. Executive power of the people including the Defence of Sri Lanka shall be exercised by the President of the Republic of Sri Lanka elected by the people. The Judicial power of the people shall be exercised by Parliament through Courts, Tribunals and Institutions created and established or recognised by the Constitution or created and established by law’.
In that context Supremacy of Parliament is confined to the area of authority assigned to Parliament in the Constitution subject to the sovereignty of the people. Similarly, the Executive power of the President is confined to the area of authority assigned to the President in the Constitution.
In our system unlike the Westminster system of Parliamentary Democracy, Parliament cannot claim its supremacy over Executive President nor can the Executive Presidency claim supremacy over Parliament due to the fact that the area of authority, functions and responsibilities of these two institutions (Parliament and Executive Presidency) have been defined in the Constitution and both are elected by the people through independent elections. They are both constitutionally answerable to the people. In that context one cannot justify the criticism that the Executive Presidency is undemocratic.
The critics said the power vested with the Executive President is too excessive in our Constitution and hence created an imbalance of power. Balance of Power is necessary to prevent infringement caused by one party either, Legislature, Executive or Judiciary over the area of authority assigned to the other party. Power vested with each party Legislature, Executive and Judiciary in the constitution has been specifically defined. Therefore, infringement of one party over the area of authority of the other party is not possible except in case of gross violation of respective Constitutional provisions.
However, there are some preconditions the President has to follow before he acts at his own discretion. These preconditions are varied, for instance, it says ‘President shall dissolve Parliament’ (after two and a half years from its formation) if Parliament rejects the Appropriation Bill. Accordingly, the President cannot dissolve Parliament arbitrarily after two and a half years. Dissolution could be done subject to the rejection of the Appropriation Bill in Parliament.
Similarly the President shall appoint as Prime Minister, a Member of Parliament who is in his opinion most likely to command the confidence of Parliament. It may be noted that the President cannot build up his own opinion deviating from the precondition “most likely to command the confidence of Parliament” imposed in this regard. In the appointment of Public Officers and Judicial Officers the President should adhere to the concurrence of Cabinet of Ministers, and observations of the Parliamentary Council, Public Service Commission, Judicial Service Commission, etc.
It may be noted that certain phrases and wordings in the Constitution have paved way for critics to point out that the Executive President can act as a dictator, e.g. in the appointment of the Cabinet of Ministers and Non-Cabinet Ministers, Article 44(1) of Chapter VIII states ‘President shall from time to time act in Consultation with the Prime Minister where he considers such consultation to be necessary’.
Article 41(A) of Chapter VIIA states that, in the event of appointment of Chairman, members of Commissions referred to in Schedule I and persons to be appointed to the offices referred to in Part I and Part II of Schedule II the President shall seek the observation of the Parliamentary Council.
Executive Presidency
Critics have pointed out that the President is not bound legally to seek consultation or act on the basis of the observation of the Parliamentary Council. However, it may be noted that it is not possible for the President to act disregarding the preconditions required to be followed as above due to the fact that the strength of the Executive Presidency depends on the support he can secure from Parliament. In fact that kind of phrases and wordings should be eliminated from the Constitution as such wordings do not serve any purpose for the benefit of the people or the Executive Presidency.
Articles 42 and 43 of Chapter VIII of the Constitution clearly emphasised that the President and the Cabinet of Ministers are collectively responsible and answerable to Parliament. In that context the President cannot act on his own, arbitrarily as he is duty bound to be responsible and answerable to Parliament. If he acts like a dictator violating Constitutional provisions where he is bound to follow, Parliament can remove him in terms of Article 38(2) of Chapter 07 of the Constitution.
In any case the Executive President cannot act at his own whims and fancies as a dictator disregarding the Legislature and the Judiciary due to the fact that President is authorised by the Constitution only to do Executive functions as specified in the Constitution.
In the above context it is very unlikely that the President would incline to act as a dictator disregarding the preconditions required to be adhered to in performing his duties and encroaching the boundaries of the Legislature and the Judiciary as stated in the Constitution.
Critics have been very critical on the Executive Presidency over the Immunity of President from Suit. Article 35(1) of Chapter VII of the Constitution states “while any person holds office as President, no proceedings shall be instituted or continued against him in any court or tribunal in respect of anything done or omitted to be done by him either in his official or private capacity”.
This immunity has been qualified by Article 35(3) of the same chapter. Article 35(3) states “the immunity conferred by the provisions of 35(1) shall not apply to any proceedings in any court in relation to the exercise of any power pertaining to any subject or function assigned to the President or remaining in his charge under paragraph 2 of Article 44 or to proceedings in the Supreme Court under paragraph 02 of Article 129 or Article 130(a) relating to the Election of the President.”
Paragraph 02 of Article 44 states matters pertaining to the Cabinet of Ministers and their subjects and functions.
Paragraph 02 of Article 129 states that any Member of Parliament can initiate legal action through the Speaker in the Supreme Court over the following allegations levelled against the President
i. Intentional violation of the Constitution
ii. Treason
iii. Bribery
iv. Misconduct or Corruption involving the abuse of power of his office
In view of the above facts, the criticisms that the President is above the law cannot be substantiated.
Critics are silent on the privileges and immunities given to parliamentarians under Article 67 of Chapter X of the Constitution. It says privileges, immunities and powers of Parliament and of its members may be determined and regulated by Parliament by law. In fact some parliamentarians have used this immunity sometimes to cover their misdeeds that they are otherwise liable under the common law sans immunity. In that context immunity vested with Members of Parliament seem to be more vulnerable to abuse of power than that of the immunity vested with the Executive Presidency.
It has been observed that there are some inborn deficiencies in Parliamentary Democracy sans Executive Presidency. Slow process of decision making, conflict of self-interest of parliamentarians with that of the national interest, abuse of Parliamentary privileges, betrayal of the aspirations of the majority to survive in power politics in Parliament with the alliance of minor political parties who represent ethnic minorities etc. could be considered some such major deficiencies.
JR’s views
Having experienced those weaknesses throughout his career in parliamentary politics President J. R. Jayewardene had once said, “Executive Presidency is chosen directly by the people and is not dependent on the Legislature during the period of its existence. Such an Executive is a strong Executive, not subjected to the whims and fancies of an elected Legislature, not afraid to take correct but unpopular decisions because of censure from its parliamentary party. This seems to me a very necessary requirement in a developing country faced with grave problems such as we are faced today” (extract from the biography of J.R. Jayewardene).
On the evaluation of performance of past Parliaments from 1978 with that of the performance of contemporary Executive Presidents, it has been observed that Executive Presidents who commanded the support of the required majority of Members of Parliament were more effective and efficient in the process of decision making, converting of decisions to actions and achieving set targets.
Converting of closed economy of this country to a liberalised economy, implementation and completion of the accelerated Mahaweli Project, establishment of export processing zones by President Jayewardene, eradication of the LTTE outfit which is considered a most ruthless terrorist outfit in the contemporary world that devastated this country over a period of 30 years, implementation and completion of several mega projects successfully such as Express Highways, International Habour, Airport, Stadiums, Port City, etc. by President Mahinda Rajapaksa and managing of the Covid-19 pandemic within a short period after assuming duty even without Parliament at the first wave of the pandemic and at its subsequent wave as well effectively by President Gotabaya Rajapaksa could be highlighted as clear-cut instances for effective decision making and implementation of such decisions efficiently and effectively by Executive Presidents of this country. Contemporary Parliaments sans Executive Presidents above referred to wouldn’t have been able to make such decisions and implementation of same so effectively.
Ruling party VS minor parties
Particularly, in a hung Parliament, the ruling party has to depend on the support of minor political parties who represent ethnic minorities, to survive in Parliament. It is a fact that minor political parties were in the habit of rendering their support to the ruling party subject to the conditions which could be detrimental to national interest or the interest of the majority of people who have voted for the ruling party at the Parliamentary Election. Such situations have given the opportunity for minor political parties to dictate terms over the majority. The allegiance of the Wickremasinghe Government of Yahapalanaya with the TNA, SLMC etc. could be cited as clear-cut instances in this regard.
Hence, minority parties could play the role of king makers in a hung Parliament. This shortcoming does not emerge in Executive Presidency due to the fact that the Executive President is elected by the majority of people in the country and need not depend on the support of minor political parties unlike ruling party in a hung Parliament. This situation may be considered as a reason why minor political parties who represent minor ethnicities have launched an aggressive campaign to eradicate the Executive Presidency.
In that context Executive Presidency could be considered as an effective mechanism to safeguard the interest of the majority community of this country which would have been otherwise ignored in lieu of support required from minor political parties for survival of the ruling party in case of a hung Parliament.
The effectiveness of decision making by any ruling party in Parliament depends on unity and cohesion of its stakeholders. It is impracticable to uphold required cohesion in the long run in a hung Parliament as its partners have their own agendas besides the national agenda of Parliament. As a result of the above situation there could be pulls and pushes in the process of conducting parliamentary sessions and legislating in Parliament. Such situations do not arise in Executive Presidency, due to the fact that the Executive Presidency is not under obligation to habour personal agendas of parliamentarians in the process of implementing the national agenda.
The adverse impact on the nation of some lopsided decisions taken by hung Parliaments based on the individual agendas of its stakeholders could be avoided effectively by the Executive Presidency using its discretionary power given in the Constitution.
The open statement made by President Gotabaya Rajapaksa to withdraw the voluntary co-sponsorship on UNHRC Resolution 30/1 by the Wickremesinghe Government as it is extremely detrimental to the sovereignty of Sri Lanka could be cited as one of the unique examples in that direction.
The avoidance of responsibility by passing the buck from one person to the other in the parliamentary group seemed to be a common feature in the proceedings of Parliament. There is no room for such shortcomings in the Executive Presidency enabling the Executive President to escape from his responsibility as the responsibility, role and functions of the Executive President have been specifically fixed in the Constitution. He can’t say I am not responsible, like some disgruntled politicians who demonstrated in Parliament.
Parliament cannot secure an effective leadership to the nation when compared to the Executive Presidency due to the fact that it consists of group of equals and the status of Prime Minister is considered one among equals (Primus inter pares) in the Westminster system of Parliamentary Democracy. Effective leadership is necessary to motivate the people of the nation. This inborn shortcoming of Parliamentary Democracy has been eliminated in our system by creating an Executive Presidency. Article 30(1) of Chapter VII of the Constitution which states that the President “is the Head of the State, the Head of the Executive and of the Government”.
Based on the same ground effective decision making in crisis situations such as war, pandemic or national disaster is difficult by a hung Parliament alone. Executive Presidency is considered the most pragmatic mechanism for handling such situations effectively.
The success or failure in performance of the Executive President depends on various factors of which his people centric vision, personal capacity, dedication and commitment to work for the betterment of the nation, and the firm support and backing of Parliament could be considered as important. Although President Sirisena had demonstrated his dedication and commitment to work for the betterment of the nation he didn’t have a vision, the capacity and support of Parliament. On the evaluation of the performance of President Gotabaya Rajapaksa so far it could be rated as excellent. The secret for his success is nothing but his capability to command almost all factors above referred to.
Executive Presidency vital
From the foregoing facts presented in this article it may be noted that Executive Presidency could be considered as an appropriate mechanism to overcome inborn shortcomings and deficiencies of Parliamentary Democracy. It is only a political exaggeration caused by disgruntled politicians to say that Executive Presidency would lead the country to a dictatorship. Executive Presidency is in fact a vital mechanism constituted within the framework of parliamentary democracy for effective governance.
If Parliament is of view that power vested with the Executive Presidency under the present Constitution is excessive it may be adjusted by Parliament subject to the required standard to maintain the appropriate balance of power between Legislature, Executive and Judiciary. This has to be done only to facilitate and not to hinder the efficiency and effectiveness of the performance of the Executive President.
Except appropriate adjustments based on the above requirements, the abolition of Executive Presidency en-block in that context is unwarranted, and would be detrimental to the effective implementation of policies of any Government mainly the achieving of targets set out for the socio – economic development of the country.
(W.A. De Silva has a BA Spl Degree, University of Ceylon 1967 and MBA - SJU He is a retired Executive Director – BOI and was HRM Consultant on Fiscal Reform Program -ADB)