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Executive President Old Wine in Executive Prime Minister New Bottle

Jul 25, 2010 12:24:43 AM- transcurrents.com

By Namini Wijedasa

When the president invited the opposition leader for talks on constitutional change, there was cheer that the debate on this vital national issue was finally broadening.

Then, after just a few rounds of discussion, Mahinda Rajapaksa and Ranil Wickremesinghe proposed the introduction of an elected executive prime minister — a system which has only been tried once before in the world and abolished after proving to be an unqualified failure.

No draft

A comprehensive and defined set of suggested amendments is still not available and the supposed main “drafter” of such a document — External Affairs Minister G.L Peiris — is not talking. Citizens are left to gather information like dogs collecting scraps from the dinner table.

Wijeyadasa Rajapakshe was in a group of opposition parliamentarians that met Peiris on Friday to discuss constitutional change, particularly with reference to the executive premiership and the 17th amendment. He said the government was “not precise” on the second issue. Rather, “it’s a vague suggestion”. “Prof Peiris is not sure of what the government intends,” he observed.

“They refer to an executive prime minister elected by the people but we pointed out that it’s meaningless to go through the same process of election of a prime minister or a president, that it makes no difference,” Rajapakshe explained. “And even if the prime minister is elected by the people, we asked what the procedure is for removal. Impeachment, as is already provided in the constitution, is meaningless.” Despite Wickremesinghe supporting the idea of an executive premiership, Rajapakshe said the UNP stood for a return to the Westminster system of governance.

From what is already in the public domain, we know that the executive prime minister will be elected to parliament and there will be no limit on the number of terms he or she wishes to serve. There is still discussion on whether or not the executive prime minister should have power to dissolve parliament and be granted immunity from prosecution.

Bigger mess

But while the government and opposition already seem to be fine-tuning this proposal, constitutional law experts and academics warn that Sri Lanka may find herself in a bigger mess than she is now if the executive presidency gives way to an elected prime ministership.

Ruana Rajepakse, an eminent lawyer who authored the book “A Guide to Current Constitutional Issues in Sri Lanka”, raised a question: “They are discussing changes but is it for a second term or third term? Is the president going to forego his second term as president or are they talking of the third term? What we have to do is control the enormous amount of power vested in the president in the same term.”

Jayampathy Wickremeratne, PC, was part of the team that drafted the People’s Alliance government’s 1997 proposals for constitutional reform and is well versed in the subject. Executive prime minister, he said, “is not a phrase that you come across in constitutional documents or literature”.

In a parliamentary form of governance, he explained, the executive power is vested in parliament and exercised in the name of the head of state by the prime minister and the cabinet of ministers. The head of state (whether it is the president, king or queen) acts on the advice of the prime minister who is effective head of the executive. “If ‘executive prime minister’ is used in that sense, there is not much of a problem,” Wickremeratne said. “But if it is meant to say he will have certain powers that prime ministers in countries with a parliamentary form of government do not have, then that’s a matter of concern.”

The problem lies with what those powers would be. Would the prime minister have immunity from suit? “In no country with a parliamentary form of government does the prime minister have immunity,” Wickremeratne stressed. And will the prime minister be directly elected? What about the dissolution of parliament? The prime minister could claim he is directly elected and there could be a clash of power with parliament.

The failed Israeli experiment

The case of Israel has been mentioned. Israel has a parliamentary form of government but it was found in the late 80s and early 90s that the smaller parties — so-called Orthodox Jewish parties — were getting higher representation and “dictating” terms. As a way of circumventing this, a prime ministerial election was held parallel to the parliamentary election.

“What transpired was a complete reverse of what was expected,” said Wickremeratne. “They found the smaller parties getting more seats. As a result, the prime minister, though directly elected, did not have a majority of his or her own!”

How did this happen? “People found themselves able to choose a national level politician as prime minister and still also vote for the party of their choice,” Wickremeratne said. “More people started voting for Orthodox parties while also voting for a mainstream politician as prime minister.”

This could happen in Sri Lanka. If you have two votes — one for the party and one for the prime minister — people could people could choose one party for the electorate and parliament, and vote in the leader of another party as prime minister. “Because we propose to introduce a mix of first-past-the-post and proportional representation, this will help smaller parties get more seats.” The same, he cautioned, could happen to the UNP or the SLMC. For instance, SLMC voters in Galle might vote for the party but choose a UNP leader.

After it was introduced in 1992, Israel held her first elections under this system in 1996. It was such a flop that the direct election of the prime minister was discarded after the 2001 polls.

Japan also toyed with the idea of introducing a directly elected prime minister. Unlike Sri Lanka, however, that country seems to learn from the mistakes of others. The idea was abandoned. Addressing a Japanese House of Representatives constitutional research committee in 2001, two eminent professors maintained that it was better to have unity of parliament and cabinet.

Akira Morita, one of the professors, said that the system would make the prime minister “have separate legitimacy” His colleague, Yasuo Hasebe, referred to the failed example of Israel that is being cited now by the Sri Lankan government. “There was a deviance between the choice for premier and political party,”’ he said. “There is not much for swift and accurate governance or strengthening political leadership (with direct election of the premier), he said. ‘’I don’t think it is a very good idea.’’

Our constitutions are for politicos

Lakbimanews interviewed Rohan Edrisinha who lectures in constitutional law at the Faculty of Law at the University of Colombo. Excerpts:

Is there sufficient transparency in the process to introduce constitutional change?

This is part of the problem. Constitution making is supposed to be an exercise where the people draft a constitution to protect themselves from those who wield political power. But in Sri Lanka, just like in 1972 and 1978, we seem to have got the entire thing wrong in terms of process. The debate seems to be taking place within the government. This could mean that we have a constitution drafted to suit the people in power rather than the people.

How would you analyse the proposal to introduce an executive prime minister?

There is a lack of clarity with respect to what even the government and opposition are talking about. For example, the president and leader of opposition are supposed to have agreed that there should be an executive prime minister. What does this mean? In political science and constitutional literature that I’m familiar with, there is no notion of an executive prime minister. The choice, if you look at constitutions around the world, is between a presidential executive and a parliamentary executive. No one is really sure what an executive prime minister means. The only possible example could be the executive prime minister idea that was tried in Israel where the prime minister was elected directly by the people at a separate ballot. This was attempted and rejected unanimously across party lines in Israel because it proved to be total failure. If this is what President Rajapaksa and Ranil
Wickremesinghe are proposing, why are they following an example which was universally seen having failed?

Was it not Tissa Vitarana who first floated this idea in his APRC proposals last year?

It was briefly toyed with by Tissa Vitarana and many people, including myself, lobbied with him, alerting him that it was an experiment that had failed. In the final report, it seems as if Tissa and the APRC abandoned their flirtation with the executive prime minister idea.

Dayan Jayatilleka says people are unnecessarily obsessed with the presidency. Do you agree?

If you look at the experience of 1978 constitution, the executive presidency had a corrosive effect on all other institutions including parliament and the judiciary. It also undermined the 13th amendment that sought to devolve power to the provinces. The executive presidency is one of the major impediments to constitutionalism and focusing on it and its negative consequences is vital.

What changes do you think our constitution needs?

Any new constitution for Sri Lanka must contain the following features: abolition of the executive presidency and a return to a parliamentary executive; the strengthening of parliament and the powers of the members of parliament; improvement on the 17th amendment to ensure the establishment of independent institutions including a constitutional court to deal with constitutional matters; a new electoral system that is genuinely mixed; the clear acceptance of the principle of supremacy of the constitution with re-introduction of the judicial review of legislation like what existed in Sri Lanka before 1972; and a stronger bill of rights that makes our bill of rights compatible with the International Covenant on Civil and Political Rights and modern approaches to bills of rights which include economic, social and cultural rights with carefully drafted limitation clauses to prevent the rights from being restricted at will by governments in power - courtesy: Lakbima News -