Nonsense Upon Stilts? Revisiting Justifications of Presidentialism In Sri Lanka

Tuesday, November 17, 2020 - groundviews.org

Photo Courtesy of Daily News

With the enactment of the Twentieth Amendment, Sri Lanka embarks yet again down the fraught path of authoritarian presidentialism. Whether this latest adventure ends in a democratic nightmare, or is as fleeting as its two predecessors, the Eighteenth and Nineteenth Amendments, remains to be seen. The legitimacy of both these previous constitutional reconstructions were undone by their own creators within a single term of office. The potential for the Twentieth to go the same way is already visible, although far too early to tell. But for the moment, it is what we have, and it is therefore an appropriate time to reflect on the arguments that are advanced, usually without challenge, as the justification for this system of government.

There are three types of theories that explain how societies – or more accurately, elites – choose the institutional form of government when restructuring the state through constitutional amendment or replacement. The first is by reference to ideas, the second by reference to functions, and the third is by reference to self-interests. Unless we are able to account for how all three factors have combined to determine design choices at a particular moment of formal constitutional change, we are unable to fully understand what is going on.

In Sri Lankan constitutional debates, we see presidentialism being defended by ideational arguments derived from a romantic view of a utopian Sinhala-Buddhist past. In these nationalist arguments, we see the presidency defended as a modern reproduction of the ancient monarchy, under the protective parasol of which, the unity of the country and the primacy of the Sinhala-Buddhists can flourish. We see functionalist arguments derived from economic developmentalism, which hold that the centralisation of authority in a single ruler is essential to visionary leadership and to combat the corruption and aimlessness of parliamentary party politics.

Never openly discussed, but perhaps the most important factor, is the partisan self-interests of the constitution-makers. For strong leaders confident in their ability to dominate the electoral game, such as the Rajapaksa brothers, a constitution that concentrates powers and diminishes restraints is attractive, because it is the means through which they can continue to dominate electoral politics. This attraction is overpowering in the short-term, although it is that very over-centralisation that creates the conditions for their loss of power in the longer-term. Opposition leaders gaze at this ultimate prize in politics they would one day like to have, although without the charisma, the ruthlessness, or the organisational competence of the Rajapaksas, it is unlikely they would get anywhere near it. But these otherwise opposing strategic interests converge to perpetuate presidentialism as the constitutional design of the state – the preferred instrument for those in government, the coveted trophy for those without.

It is important to parse out these different strands of the orthodox justification for presidentialism, in order that we can have a clearer debate about Sri Lanka’s form of government. Without it, what happens is that old arguments, such as those advanced by J.R. Jayewardene when he first began advocating presidentialism in the 1960s, are taken as gospel truths simply because they are old and have been endlessly repeated by later generations of presidential authoritarians for purposes of self-validation.

We now have the practical experience of 42 years of working the presidential form of government. There are no doubt many sound arguments that can yet be made in its favour, depending on the combination ideas, functions, and strategic interests one wants to pursue through constitutional design. But many if not all of the habitual and hackneyed arguments that proponents of presidentialism actually do make in Sri Lankan debates do not stand up to much normative, functional, or analytical scrutiny. They are, in the words of Jeremy Bentham’s famous critique of natural law rights, ‘nonsense upon stilts’. In showing why this is so, let us start by defining this system.

What is presidentialism and semi-presidentialism?

Presidentialism is the system of government in which the executive and the legislature are elected and function separately from each other. The president is the head of state and the head of the government. The president is not responsible to the legislature, except exceptionally through impeachment. The president is elected directly by the people for a fixed term. Cabinets in presidential systems comprise the president’s lieutenants who are solely responsible to the president. The constitution of the United States is the archetypical democratic presidential system.

Semi-presidentialism is the system of government in which a directly elected fixed term president exercises executive power together with a prime minister and cabinet chosen from the legislature. The constitution of France is the archetypical democratic semi-presidential system. There are two sub-types of semi-presidentialism: ‘premier-presidential’ and ‘president-parliamentary’. In the former, the prime minister and cabinet are solely responsible to the legislature. In the latter, they are jointly responsible to both the president and the legislature. Sri Lanka under the Nineteenth Amendment was a ‘premier-presidential’ system. Before the Nineteenth and after the Twentieth Amendments, it is more a ‘president-parliamentary’ system.

Both presidentialism and semi-presidentialism are democratic constitutional systems, as they operate in the US and France. However, there are more authoritarian presidential and semi-presidential countries than there are authoritarian parliamentary countries in the world. This suggests that, under certain conditions, there is a causal relationship between authoritarianism, on the one hand, and the strong executive powers and the direct election of presidents, on the other.

Why do countries adopt presidential systems?

Different countries have different reasons for adopting presidential systems. However, there are generally four main reasons that are claimed as strengths of presidentialism:

Direct election: In most although not all presidential systems, the president is directly elected by the people as a whole. It is argued that this gives more legitimacy to the office than a prime minister who emerges from the legislature.
Separation of powers: As the executive and the legislature are elected and function separately, it is argued that this system makes for better checks and balances.
Effectiveness: The strong and clear executive powers and the legitimacy provided by direct election, it is argued, enables presidents to be more effective and decisive chief executives.
Stability: A president has the stability of a fixed term, and a direct mandate to implement a specific programme, unlike a prime minister who may be dismissed by the legislature.

The countervailing factors against each of these rationales are:

Direct election: This can encourage personalism and populism. Personalism is where the style and culture of political leadership is focussed on the person and personality of a charismatic leader, and not on institutions. Personalism leads to the erosion of institutions and controls on power. Populism is a more developed variant of personalism where the leader mobilises followers by appealing to grievances, pointing to scapegoats, offering simple solutions to complex problems, and condemning the limits of constitutional democracy as an illegitimate negation of popular sovereignty, or at least, the majoritarian will. Direct presidential elections are one of the most commonly used devices by which populists gain majoritarian legitimacy for their authoritarian projects.
Separation of powers: The stricter institutional and functional separation between the executive and the legislature often leads, not to checks and balances, but to the breakdown of government and democracy. If the relationship between executive and legislature becomes hostile, there is no incentive for either to back down. It may also lead to greater authoritarianism (by presidents attempting to subjugate a hostile legislature by force) or corruption (by presidents attempting to co-opt the legislature with improper inducements).
Effectiveness: The effectiveness of a chief executive has less to do with the system of government than other factors, including personal talent. Consider the examples of highly effective and transformational prime ministers throughout the world, including Winston Churchill, Clement Attlee, Margaret Thatcher, and Tony Blair in the UK, Jawaharlal Nehru of India, Lee Kuan Yew of Singapore, Mahathir Mohamed of Malaysia, and Pierre Trudeau of Canada. These leaders clearly did not need presidential powers to influence the course of history.
Stability: The fixed term of presidents, and the difficulty of dismissing presidents through impeachment, may serve to entrench in office leaders who are incompetent, autocratic, or corrupt, unlike in a parliamentary system where a no-confidence motion can bring a swift end to the tenure of a bad prime minister.

Do the Sri Lankan people want the executive presidency to remain?

The argument is made that after 42 years of the 1978 Constitution, the people are now accustomed to the executive presidential system, and further, that numerous opinion surveys show consistent support for the system. There is much truth in this. However, three counterpoints must be considered.

The first is that the people have voted for candidates promising abolition or reform of the executive presidency in more presidential elections than not. In several of those elections, both the winning and main losing candidates promised abolition or reform. Sri Lanka has had seven presidential elections: 1989, 1994, 1999, 2005, 2010, 2015, and 2019. In four of these – those of 1994, 1999, 2005, and 2015 – the winner promised abolition or reform. In the first three of these four elections, both main candidates offered abolition or reform. This represents near-universal and repeated popular mandates, consistently over a period of over 20 years, for changing this system.

The second point derives from the 2015 presidential election. The mandate of the winning coalition in 2015 was perhaps the clearest mandate of all, because the future of the executive presidency was the sole constitutional reform that was in focus. It was also the only governing coalition to implement a mandate for change, which it did in the form of the Nineteenth Amendment. This constitutional amendment was the most substantial reduction of presidential powers since the constitution was introduced in 1978. It was enacted with 215 of 225 MPs voting in favour, in a parliament in which the government of the day did not enjoy a majority. In an otherwise highly competitive party political culture, it is very unlikely there would have been such a high degree of parliamentary consensus unless MPs and parties thought they were carrying out a clear popular mandate.

From this it is clear that Sri Lankans do make the connection between authoritarianism and corruption, on the one hand, and presidentialism, on the other. If and when the post-Twentieth Amendment performance of the regime begins to resemble the situation in 2014, there is no doubt that the people will in response make a similar electoral decision as in 2015.

Finally, it must be noted that there has been no attempt at any time to develop and sustain a campaign of public education on the detailed arguments against presidentialism. Neither has the positive case in favour of parliamentarism been made since people like Dr N.M. Perera and Dr Colvin R. de Silva wrote erudite newspaper articles about the dangers of presidentialism in the late 1970s. Such a campaign remains to be undertaken. Given the history of electoral mandates on this question just recounted, it is more likely than not a better informed public would support abolition than retention of executive presidentialism. When the Kumaratunga government carried out a sustained campaign to persuade the majority community to accept power-sharing and reconciliation for the first time in history through the Sudu Nelum and Thavalama programmes, the effects were clearly shown in changes in public opinion. It is possible to do a similar thing with presidentialism.

Is the executive presidency needed for the unity of the country?

There is no substance in the argument, and no empirical evidence, that the territorial integrity of a country depends on that country having a presidential system. If that were the case, a much larger, more populous, and much more diverse country like India would have disintegrated several times over under its parliamentary system. In plural polities, a stronger and more democratic unity can be built through the greater inclusiveness of a parliamentary system. By contrast, the type of unity that is imagined under a strong presidential executive is a unity that presupposes control, which often spills over into authoritarianism and militarisation.

There are multiple other variables at play, but it is not a coincidence that violent conflict in Sri Lanka accelerated after the introduction of presidentialism. The centralisation of power in presidentialism disincentivises the compromises and trade-offs of democratic politics, and incentivises zero-sum politics. The winner takes all in presidential democracy. In fragile and conflict-prone societies, and in developing post-colonial democracies, this marginalises groups in the periphery, whether ethnic minorities or economically and socially disadvantaged groups. This creates greater incentives for them to turn to violence as the means of achieving their political aims. For these reasons it can be argued that in some types of societies presidentialism is actively harmful to unity.

Is the executive presidency needed for stable government?

It is superficially true that presidential systems provide greater executive stability because of the fixed term and the independent mandate of the president. By contrast, it is again superficially true that parliamentary executives are more precarious, because of the government’s reliance on legislative confidence. But there are many constitutional design options for ensuring the stability of parliamentary executives. There is no need to suffer the undemocratic disadvantages of presidentialism in the name of stability. Design options for ensuring the stability of parliamentary executives include:

Fixed-term parliaments (and corresponding stability of a government for a more-or-less fixed term);
Double dissolution or ‘balance of terror’ procedures (e.g., the legislature can dismiss the government but it has to also dissolve itself for an election simultaneously, etc.);
Formal election of the prime minister by parliament after a general election (providing an indirect mandate that reinforces the legitimacy of the chief executive);
Supermajorities and/or repeat majority requirements for confidence votes;
Electoral systems that balance the diversity of representation with the need for stable governing majorities (e.g., by a careful blend of first-past-the-post and proportional representation elements in a mixed member proportional (MMP) system);
Anti-defection provisions and rules governing coalition-formation (and more generally, stronger frameworks for electoral integrity including campaign finance regulation);
Legal framework for political parties (to reduce personalism and fragmentation of the party system, and even possibly to disincentivise communal identity-based parties and incentivise a strong national two-party dominant system).

In developing democracies, the notional stability of the presidential executive often means the over-centralisation of power. This concentration of power in the ruling regime reduces or in some cases eliminates the inclusiveness of the political system, and provides no incentive for opposition groups and forces to support the overarching system. The constitution itself then becomes one of the advantages of incumbency, rather than the neutral framework for the rules of the political game. This incentivises constant tinkering with the constitutional settlement, every time governments change. Or the constitutional itself may need to be overthrown in order to get rid of an unpopular government. In either of these ways, the concentration of power involved in presidentialism leads to constitutional instability.

Is the executive presidency needed for economic development?

There is no necessary correlation between the system of government and economic development. However, a greater proportion of the world’s wealthiest countries have parliamentary systems. In the G7 group, the UK, Germany, Italy, Japan, and Canada are parliamentary democracies, and only the US and France are presidential democracies. Countries entirely destroyed by World War II such as Germany, Japan, and Italy have achieved major economic success as post-war parliamentary democracies. The per capita wealthiest countries in the Commonwealth – the UK, Canada, Australia, and New Zealand – are the oldest parliamentary democracies in the world. Post-colonial Commonwealth countries such as Singapore and Malaysia, and increasingly India, have recorded spectacular levels of economic development as parliamentary states.

Sri Lanka is a persistent economic underperformer since independence. In the 1960s, J.R. Jayewardene began to promote the idea that one of the reasons for this was the parliamentary form of government. He argued that the need for governments to pander to the demands of MPs, and the frequent changes of government since independence, had adversely affected development. He advocated the French model of semi-presidentialism because it would bring the best of both worlds. A directly elected fixed term president, freed from the need to appease parliamentary special pleading, would constitute a stable executive with the ability to look at long-term economic objectives and take unpopular but necessary decisions. At the same time, parliamentary traditions would be preserved through the prime minister and cabinet remaining a part of parliament.

Not much of this laudable vision has borne out in practice under presidentialism. The same cultural practices that make for good short-term electoral politics, but bad long-term macroeconomics, have continued if not aggravated under presidentialism. There has been no improvement in either the planning or the execution of macroeconomic policy. Fiscal irresponsibility, profligate spending, failing revenue systems, bureaucratic lethargy and degradation, and especially systemic corruption, have all worsened.

As with presidentialism’s relationship with conflict and de-democratisation, this is again not a coincidence. There is an institutional explanation to how, in cultural contexts such as Sri Lanka, presidentialism leads directly to bad economic governance. Presidentialism’s concentration of power results in decision-making that is high in ‘agency costs’ and low in ‘public goods.’ That is, presidentialism unleashes executive power and expands presidential discretion, when what is needed for good economic governance is constraints on power and the structuring of discretion. This leads to decision-making that serves the regime rather than the people. These insights from the application of economic concepts to constitutional performance are amply demonstrated in the Sri Lankan experience of presidentialism. The biggest institutional reform needed for good economic governance is to abolish rather than empower presidentialism.

Is the executive presidency necessary for clean governance?

The executive presidency is not a solution, but rather, together with other factors such as the electoral system and the political culture, a major cause of corruption in politics. The same ‘agency costs’ argument as above can be made here: because presidentialism is an executive-enabling rather than an executive-constraining model, it is institutionally more susceptible to authoritarianism, corruption, inefficiency, unresponsiveness, and unaccountability.

As the literature on developing democracies shows, presidentialism, especially when paired with a proportional representation electoral system, can exacerbate corruption. Proportional representation has many benefits. It is, in principle, a necessary institution of inclusion and accommodation in plural polities. Two disadvantages, however, are that it fragments the party political system by encouraging the proliferation of parties, and in cultures like Sri Lanka, excessively ethnicises political mobilisation and party-formation. This is a situation ripe for corruption when the rule of law is weak, and there is a high threshold of social tolerance for clientelism (or even a social expectation of patronage-distribution as a normal function of politics).

In such contexts of corrupt, fragmented, and fragile legislative politics, a presidential executive does not act as a redeemer, or even as a paternalist, but as a predator. Using both the power and the resources available to it, there is every incentive for a presidential executive to exploit the weakness of parliament to ensure its dominance of the state. It is in the interests of an overreaching executive to keep the legislature in a state of weakness, including by encouraging an image of hopelessness and incorrigibility. When the public begins to look for a saviour from this unsavoury political culture in the form of a president, then the danger of populist presidential authoritarianism has arrived.

Is the executive presidency necessary to ensure ethnic politics do not undermine governance in the national interest?

It is necessary for the representation and accommodation of minorities in plural societies that there are institutions like proportional representation and devolution. It is also true, as noted above, that these institutions yield undesirable consequences in some contexts. The most notable of these is the trading of ethnic or religious vote-blocs for perquisites of minority party leaders, including ministerial office, patronage opportunities, and outright bribes. There is no doubt that this is a distortion and abuse of minority protection mechanisms. It is also a danger to both governance in the public interest and to the legitimacy of constitutional democracy over time. Worst of all, it lends credibility to anti-minority discourses and movements, and sows suspicion and division.

But as discussed above, the dynamics of legislative politics under presidentialism are such that the president has more incentive to perpetuate this type of dysfunction than to strengthen legislative politics, which is a rival source of power. Every president has an incentive to keep a fragmented and corrupt system of ethnic parties in play so that the legislature does not pose any threat to executive dominance. It is because there is no such incentive that we have never seen in Sri Lanka a president – not even those with the clearest chauvinist ideologies and rhetoric – who will refuse to deal with ethnic minority parties on the principled grounds that doing so would endanger good governance or the public interest. The expectation that presidentialism is a bulwark of good governance against corrupt minority parties is therefore unfounded.

Is the executive presidency needed to preserve the Sinhala-Buddhist culture?

J.R. Jayewardene unambiguously promoted the executive presidential system as a modern reproduction of the ancient Sinhala-Buddhist monarchy. In the vision he offered, the president would be the elected head of a republican state, but the president would also be a Dharma Raja ruling a Dharmishta Samajaya in line with the Dasa Raja Dhamma. This was an astute blend of tradition and modernity for the purpose communicating and ‘selling’ his constitutional vision to the electorate. The legal form of the pre-Thirteenth Amendment constitution was very much intended to reflect the Sinhala-Buddhist dominant state, with its performative provisions on Buddhism and Sinhala, and its substantive centralisation of power through presidentialism and the unitary state. A centralised state helps the ethnic majority to hoard power, because the ethnic majority always wins the elections that give them perpetual access to that state power. This describes the reality of the presidential unitary state as it was conceptualised, advocated, established, and then operated in Sri Lanka.

But it does not follow that the cultural primacy of the Sinhala-Buddhist majority cannot be maintained under a parliamentary constitution. The provisions on language and religion, after all, were near-identical in the parliamentary 1972 Constitution and the presidential 1978 Constitution (prior to the Thirteenth Amendment, which pluralised official language policy and diluted the unitary state with devolution). Thus, the relationship between the Sinhala-Buddhist identity of the majority, and the constitutional identity of the Sri Lankan state as a whole, are independent of the system of government. This therefore undermines the argument that preserving the cultural identity of the majority requires the preservation of the presidential state.

Is a reformed executive presidential system the answer to authoritarianism?

Some argue that the answer to Sri Lanka’s democratic travails is not the abolition but the reform of presidentialism. Reform may mean either pure presidentialism on the American model with the full separation of powers, or reforms within the semi-presidential category so that the office aligns more to the premier-presidential than the president-parliamentary sub-type. Both these types of reform argument are misconceived, because they misdiagnose the mischief that constitutional reform needs to address.

The performance of presidentialism as an institutional form of executive power has to be understood in the light of the political culture in which it operates. Sri Lankan political culture encourages personalism, that is, the concentration of power around the leader, and presidentialism as an institutional form entrenches that tendency. Now, some may argue that that is exactly how it should be – a case of form following function; or in other words, presidentialism is the more culturally authentic form of political power. But if the goal is democratisation, then this is the worst possible option. The centralisation of power, as was noted above, promotes bad governance, that is, government characterised by poor decision-making and a lack of transparency and accountability. This creates the conditions for corruption and authoritarianism to thrive.

The necessary response, and indeed the only way, to deal with this central problem is to de-concentrate, or de-centre, power. This is done by ensuring that while the executive branch has sufficient coherence to exercise executive power effectively and efficiently, that there are adequate checks within the executive and between the executive and other branches to guard against over-centralisation.

It is parliamentarism as an institutional form of state that provides the template for such a balance of power. Parliamentarism is the system of government where the collective political executive is a part of, and is accountable to, the legislature. The survival of the executive depends on it retaining the confidence of the legislature. The head of state is a titular office and the head of the government is the prime minister. The prime minister is a ‘first among equals’ in the cabinet of ministers, which is collectively responsible to the legislature for the conduct of government. The principles of confidence and responsibility mean that the executive is accountable to the legislature on a daily basis, unlike in a presidential system. The principle of cabinet collective responsibility means that the political executive is a plural, collegiate, and cooperative entity, and not the rule of one person. The principle of separation between the heads of state and government provides a further check on one man rule at the apex of the state. Executive power is distributed and shared within the executive, and between the executive and the legislature. No single person can claim a direct mandate to act as they please.

There are, of course, many examples of authoritarian parliamentary systems. But it is generally accepted in the academic literature in comparative political science and comparative constitutional law that parliamentary systems are more conducive to constitutional democracy. This is because, as a system of government, parliamentarism is premised on political pluralism, accountability, and consent, whereas presidentialism is premised on a concept of monistic and personalised executive power. In essence, therefore, it can be said that parliamentarism is about democracy, whereas presidentialism is about control.