From President Ltd to Executive PM unlimited

by Rajan Philips

Constitutional impatience is the name of the game. Three weeks ago the move was to rescind Article 31 (2) to allow the incumbent president to go beyond two terms in office. That plan seems to have gone astray just like other best-laid plans of mice and men.

Now the goal has been ostensibly downsized – from President Limited to Executive Prime Minister Unlimited. The UNP Opposition is ready to support changing the constitution to transform the President into an Executive Prime Minister, but not to extend the presidential tenure beyond two terms.

The President has met with the Leader of the Opposition, one on one, and with their retinues. The banns have been announced for a marriage with no chance of consummation, but with the possibility of another set of defections from the UNP. Everything is predictable in Sri Lankan politics but nothing bears a positive outcome.

The gullible have hailed it as constitutional reconciliation, but for others it is the kind of you-scratch-my-back-I-scratch-yours deal to extend Rajapakse’s hold on power and keep Ranil’s backside on the Opposition seat for ever. It will also help Mr. Wickremasinghe stem the calls for reforms within the UNP and maintain his leader-for-life status. At least they are signs of life in the UNP. The SLFP appears to have gone into extended hibernation, ceding control to the first family.

Charles de Gaulle, France’s most famous General and President, was reportedly fond of playing Patience, the card game. He showed great patience going into early political retirement in 1948, unhappy over the Fourth Republic and sitting out for ten years before returning to found the Fifth Republic. The French people whom he had liberated from Nazi occupation gave him a second opportunity in 1958 to implement what he claimed to have always had: ‘a certain idea of France’. The presidential system de Gaulle created became the Gaullist system, and apparently was a model for Sri Lanka’s current constitution that J.R. Jayewardene produced in 1978.

JR was no de Gaulle, and Sri Lanka did not have any of the background or circumstances that France had to justify a constitutional change from the British parliamentary system to a presidential and parliamentary admixture. However, JR had his ‘certain idea of Sri Lanka’ and did exercise tremendous patience in his political life, waiting till he was seventy to win the highest political prize. What was good for JR has certainly been not good for Sri Lanka. Once in power, JR showed little patience. His own constitution was not fast enough or expedient enough for him. So he began amending it, left, right and centre. From political patience, JR lapsed into constitutional impatience.

The impatience game continues. Chandrika Kumaratunga and Mahinda Rajapakse opposed JR’s constitution when it was enacted and adopted by parliament, and they vowed to change it – in fact, abolish the presidential system itself. Ms. Kumaratunga did little with any purpose to deliver on her promise, while Mr. Rajapakse has done even less. Instead, they have exploited the vices of the Jayewardene constitution to their own advantage, and have done less than nothing to use whatever of its virtues. They too have been impatient to make changes not for any higher purpose or greater good of the country but to extend and entrench their stay in power in the name of political stability. How impatient can one be for stability?

Problems and uncertainties

The prospect of an Executive Prime Minister is fraught with uncertainties if not the certainty of unintended problems. Even as a concept it has problems. What does it mean to have an Executive PM? Does it mean transferring to the new PM the powers now exercised by the President? There will not be a problem in transferring powers now exercised by the President as Head of Government, such as selecting the cabinet, assigning portfolios, and overseeing cabinet responsibility for all government activities. These powers were exercised by Sri Lankan Prime Ministers until 1978.

What they did not exercise were the powers associated with the Head of State, such as the power to summon or dissolve parliament, approve legislation, appoint judges and independent commissioners, send and receive ambassadors, declare emergency, declare war and to be Commander in Chief. These powers were exercised by the Governor General and later by the non-Executive President. The 1978 Constitution invested both powers in the elected President.

Separating the Head of State from the Head of Government belongs to the British tradition of combining the monarchy with representative cabinet government, although the Queen almost always acts on the advice of the Prime Minister. “The people, said Jennings, “can cheer the Queen and damn the government”. The alternative would be to have an elected Head of State, either by the country at large, as in the US and in France, or through a system of electoral college (comprised of Members of the two Houses of Parliament and State Assemblies) such as in India. The Indian system is the republican version of the British parliamentary model.

The 2000 Constitutional Proposals of Chandrika Kumaratunga to abolish the current presidential system provided for separating the Head of State (President) and Head of Government (Prime Minister) as in India. The anomaly of having a Prime Minister as Head of State and Head of Government is in the vesting in one member of parliament the supreme powers of the state. One constituency or electorate would have the privilege of having as its MP, the Head of State and the Head of Government. If on the other hand, the Executive Prime Minister is to be elected at large that would create the opposite anomaly of turning someone elected by the whole country into an ordinary MP.

The Prime Minister in the traditional parliamentary system is considered to be ‘first among equals’ – not only in the cabinet, as it is usually meant, but also in the whole parliament. An Executive Prime Minister is neither here nor there, if not being first among unequals. The notion of equality presupposes some quality among the ministers and members of parliament, and one that is terribly lacking in the Sri Lankan parliament and among its cabinet of Ministers.

Nihal Jayawickrama in a recent article alluded to the absence of talent among Sri Lankan ministers starting from 1994. Wiswa Warnpala has earlier written about the poor educational and professional qualifications of the Sri Lankan parliamentarians compared to their Indian counterparts. Chandrika Kumaratunga and Mahinda Rajapakse may have tried to compensate for this talent deficiency by assigning themselves all the important portfolios. We know where that approach has taken us. Or, do we?

In 1978, J.R. Jayewardene had ‘a certain idea of Sri Lanka’ and wanted a constitutional instrument to implement it. Filial succession was not a part of JR’s idea. The current clamour for an Executive Prime Minister is nothing but a cruder manifestation of the compulsions that led to the Executive Presidency in 1978. In fact, it is really an attempt to circumvent Article 31 (2) and open the way for the incumbent to remain in power until, as has been suggested in some circles, the President’s son is ready to succeed. Unlike JR, his successors have no idea of what they are doing.