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Restructuring The Presidency

By Dayan Jayatilleka

Dr. Dayan Jayatilleka

Dr. Dayan Jayatilleka

There are at least two basic challenges facing the new Sri Lankan government and each are of extended standing. 1 is the North-South question, which is my shorthand for what is variously known as the Tamil National Query or the ethnic dilemma. The other is the South-South Question.

While this latter naturally embraces the celebration political competition, which is now intra-party as properly as an inter-celebration concern, that is not the hub of the difficulty. The crux of the South-South difficulty right now is that of forms of government: Presidential or parliamentary.

The North-South and South-South difficulties intersect and interact, since they combine into issues not merely of forms of government, but forms of state. The possibilities are:

(a) Presidential/unitary

(b) Presidential/non-unitary

(c) Parliamentary/unitary and

(d) Parliamentary/non-unitary.

Within the new government there are two positions concerning matters of program and structure. They are each flawed, but a single is much less flawed than the other.

The very first position is that of the abolition of the executive Presidency, by which is meant the transfer of the executive powers and function from the presidency to the Parliament, basically the Cabinet and the PM. This position is that of the shift from Presidential to Prime Ministerial government. In Sri Lankan terms it is a reversion to the pre-1978 predicament of a neo-Westminster model. Inasmuch as the state is formally characterized as unitary, it is the reversion to the 1st Republic of 1972 rather than the non-republican classically Westminster model contained in the Soulbury Constitution. In stricter terms, it is a dismantling of what Prof AJ Wilson called “the Gaullist method in Asia” (1980), i.e. the French model of the Fifth Republic (with no the important element of secularism), instituted by President JR Jayewardene in 1978 and the restoration of a quintessentially British (colonial) model.

Politically, this very first position is shared by Ranil Wickremesinghe, Chandrika Kumaratunga, the TNA and the JVP. Ranil and Chandrika quantity to what I would contact the ‘UNP Plus’, with the Plus standing not for the SLFP but the neoliberal ideologues of the CBK Sudu Nelum constituency. It would not be inaccurate to say that if one particular had been to exclude the JVP, the advocates, like the born again advocates of the abolitionist agenda are the old ‘peace constituency’.

The second position within the new Sri Lankan government is not that of the abolition of the executive Presidency but its drastic shrinkage, leaving it with certain core or residual powers. I call this a skeletal and minimalist, but not merely nominal, Presidency. This notion holds that the Presidency should retain the portfolio of Defence and absolutely nothing else or nothing at all else of significantly importance. The votaries of this view are hardcore supporters of President Sirisena, ideologues of the erstwhile Reformist (‘rebel’) faction of the UNP, and the JHU. They appear to be concerned about the centrifugal consequences, not least the ethnically centrifugal consequences, of the de-facto abolition of the executive Presidency by means of the wholesale transfer of executive powers to the Cabinet and the PM.

My personal position is a third a single, which I fondly believe is the unvoiced sentiment of the majority of the Sri Lanka Freedom Party. Quite obviously the nation has to bid farewell to the maximalist Presidency of the Jayawardene vintage, which reached its zenith with Mahinda Rajapaksa’s 18th amendment and the abolition of term limits. Nevertheless, the answer is neither abolition nor even a minimalist Presidency. It resides in what I would recommend is a Buddhist-Aristotelian viewpoint in which one need to search for the Middle Path and the Golden Mean.

The essence of the Buddhist-Aristotelian paradigm is the avoidance of excess. This would imply the identification of the excessive powers of the Sri Lankan Presidency and their deletion, transfer or diffusion/sharing. This avoids the twin extremes of maximalism and minimalism.

All of this sounds quite good but how would it perform out in reality? It is genuinely really simple indeed. The Aristotelian tradition originated in the comparative study of the Constitutions of the Greek city states. In order to stay away from controversy, let us set aside the Eurasian Presidential models such China, Russia, Vietnam. Let us instead appear at the most exemplary variants of Presidentialism inside the liberal-democratic tradition, Western and Eastern worldwide Northern and Southern. These are US, France, Brazil, South Africa, Philippines, Indonesia and South Korea. Whatever powers, role and functions that the Sri Lankan Presidency possesses, which are not amongst these that these liberal democratic Presidencies appreciate, should be shed. All powers enjoyed by the liberal democratic Presidencies in the above described states, need to be retained.

Succinctly place, my perspective is one particular of structural reform and re-engineering as opposed to systemic modify. I urge that the Executive Presidential technique of the Second Republic (1978) stay, but by no implies untouched. Whilst the “Gaullist System in Asia” as Prof AJ Wilson defined it, should stay, that system demands structural reforms, not abolition or gutting.

Concretely, I do not see the need to have for something qualitatively a lot more than the replacement of the 18th amendment with the restoration of the two term limit and the entrenchment of an independent public service (abolished only recently by President Rajapaksa, but initially and for decades by the Sirimavo-Felix-Colvin troika in 1972).

The centrist method to Constitutional change that I have outlined here has as an accompaniment, the outlook of gradualism. It needs deliberation, discussion, debate, examination, indeed dispassionate scrutiny—and by large all inclusive and representative collective body so as to ensure broad national consensus. A Constitution should evolve it must not be overturned or overthrown. A Hundred Day quickly-track is precisely the wrong a single for fundamental constitutional alter.

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