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Executive Presidency: A flawed 'inheritance' that is not?
N Sathiya Moorthy
16 November 2012

As anticipated, the much-touted and ill-prepared protest by the Bhiku movement and Sarath Fonseka's Democratic National Alliance (DNA), seeking to replace the Executive Presidency, has Sri Lanka ended in a whimper. If anything, even the post-protest discourse was on UNP parliamentarians and other ranks that violated party discipline, to participate in the protest, and not Executive Presidency, per se before the Government parties' moves to impeach Chief Justice Shirani Bandaranaike deflected the off-again-on-again, half-hearted elitist discourse on Executive Presidency. It's understandable. For, in a way, the nation was not involved in the adoption of Executive Presidency when the late J R Jayewardene introduced the scheme in the mid-Seventies. It cannot be expected to participate in a discourse on the subject decades later. It should show the level of acceptance for continuing with the status quo.

If someone says that if on this issue or any other - including 13-A - the nation should be called upon to vote in a referendum under the Constitution, it's a political aberration that does not fit in. In inducting Executive Presidency, and whenever called upon to do so, Sri Lanka has voted for or against a leader. It has not not voted on issues and policies, as some would want to believe. They wanted President Jayewardene to stay on. Whatever he said, sold. Today, if there has to be a referendum on the Executive Presidency, it would have to be one on President Mahinda Rajapaksa. He should be campaigning for or against Executive Presidency, or 13-A, or whatever - for the nation to vote upon. The result of such a vote would be a referendum on his regime.

In Sri Lanka, the advent of the Executive Presidency was an aberration to a process that was dynamic in its own way but limited in the changes that it could have been able to absorb even after decades. Not having fought seriously for freedom, unlike neighbouring India, where the masses felt the need and urge, Sri Lanka, at Independence, found great pride and comfort in continuing with the centralised leadership from the colonial past. Nothing illustrates the deficiency as much as the inevitable inclusion of 13-A in its time. It may have served the ethnic cause in a way, but actually went on to address larger issues of socio-economic inequities, that a centralised scheme had nurtured, long before market capitalism had become the nation's accompanying economic agenda.

Ironically, it is the centralised political leadership that has sustained the centralisation of national leadership - and not the other way round. In Sri Lanka, Executive Presidency is a product of such a mindset. Streaks of such a mindset have guided the national discourse on power-devolution, too. Considering the historicity of the Sri Lankan polity, 'unity' got confused with 'unity' in the 'Sinhala nationalist' mindset. The reverse was/is true of the Tamils - yet, within their structures, the Sinhalas, the Tamils, the Left, the Right and everyone else bought a centralised leadership.

This is a fact seldom understood and acknowledged. Otherwise, to dilute the powers of a centralised constitutional authority would thus have to begin at the beginning. No political party of differing ethnicity or ideological hue can escape the opprobrium - if that is it. They have to be encouraged to change their own mind-set and approach. This includes not just the Sinhala polity, but also the Tamil polity and that of the Muslims and Upcountry Tamils, where too dominance of the leadership has been the central to their existence and relevance. Across the board, leaders win and lose elections for the party - not the other way round.

To the limited extent, Prabhakaran and RohanaWijewera were products of their times - be it in their ideological mould or their 'leadership' (?) qualities. Yet, any such change would only be in form. Content-wise, the nation has to nurture a non-existent political culture of power-sharing at all levels, if it has to reach and work at the top. A combination of Provincial Councils and Pradesiya Sabhas at lower-levels should have done the trick. It is not just about Executive Presidency. There are very few leaders at the national-level, who as Ministers at the Centre, would want to share power with those below them, in the Provincial Councils.

Welcome aberration and altruist aberration

If the Thirteenth Amendment was a welcome aberration, the Seventeenth Amendment was an altruist aberration that sought to put the clock back on what had been unthinkingly accepted as an apolitical, moralistic past. It sought to confer certain powers of the Executive - whether or not it was Executive Presidency - on a group of individuals with no accountability to the people acting through their elected representatives in the Legislature. What more, 17-A also believed in an altruist political leadership that would nominate such other altruist individuals to the various independent commissions under the Constitution. If the former were altruist, there would have been no need to provide for altruist commissioners. If it was only to share the responsibility, the said altruist leadership would have had under his/her command such other altruist individuals occupying such other positions of constitutional and/or governmental responsibilities.

That way, 17-A, for instance, was a non-altruist extension of the absent one available in abundance in the succession of Constitutions before it, and of which it formed a part. It is not about either the form or the content. It is about the timing. For a nation to be believing in such non-existent altruism decades after being exposed to the true colours of its political leaderships and experimenting with their own constitutional schemes was an expression of naiveté that has no place in realpolitik. It is this naiveté of the nation that its political masters continue to exploit.

In seeking to undo the impracticality imposed by 17-A, the 18-A may have taken the scheme to the other extreme. Yet, it is about individuals in positions of power, as democracies have shown themselves elsewhere for whatever they are worth. Either democracies have evolved into something better, or degenerated into something worse. It is all relative. Sri Lanka can discuss the democratic scheme it thus wants to have. It cannot be in isolation of the political leaderships. It cannot be in relation to the past and the future. It just cannot be because someone or the other feels left out - and wants to be heard, as long as that someone is not the 'people', and not just the 'voter', either.

Bipartisan consensus, 'checks and balances'

Borrowing Lee Kwan Yew's ideas for a still emerging city-State of Singapore, Sri Lanka improvised on the basic American model, to adapt the French system with its combination of a President and a Prime Minister at the helm. Sri Lankans knew worse still about the working of the French model than even of the American scheme. Yet, what they have done to themselves is the super-imposition of the American model minus the inherent 'checks and balances'.

Even while Americans talk about bipartisan consensus in policy-making between the two dominant political players, Congress, in the name of 'checks and balances', where individual Senator and Representative matters, more than party-tags. To each one of them would matter the respective constituency interest and their constituency interests over-ride broader policy considerations to which his party is wedded. The absence of the 'whip' scheme in the conduct of legislative business and party primaries to choose their nominees for presidential polls downwards has ensured that it would have to be a bottom-up approach of sorts in policy-making at all levels.

Such a scheme is not without its flaws, either. For one thing, the American President is not as powerful within his country as he is projected to be to and in the outside world. Two, consti6tuency interest in the name of job-creation and the like could render defence industry and the like good business for export - as long as the 'homeland' is not affected (post-War, post-Osama). But then, Americans have not amended their Constitution in decades - and no one is talking about it, either - not that such needs are not often felt. A fifth of the popular vote that Ross Perot got as the 'third candidate' in the 1992 presidential polls showed that there is an America than Americans have kept out, more by design than by accident. That could erupt again, in a more imaginative way, than the status quo system and structures can handle in political and electoral terms.

An American scheme sans the checks and balances but with a hidden element of bipartisan consensus, with the sole aim of keeping the unanticipated usurpers away, is at the bottom of Sri Lanka's problems. The 'Executive President' is only an expression of such a self-defeating purpose. For one thing, whether now or earlier, it is the same individuals often wearing different political colours that have adorned Parliament, voted for change that the Executive of the day wanted in place. The element of checks and balances that should have been the touchstone of the new scheme went out into the seas with that one Sri Lankan character, rather South Asian character.

Viewing and Re-viewing the process

It is back to the basics, of the game of jig-saw puzzle. If you need to correct the nation on the more colourful side of the composite picture, you can start with connecting the less-noticeable 'Man' on the less focussed other side of the puzzle pieces. Sri Lanka and Sri Lankans can learn not just one lesson alone from this simple fact. Otherwise, the fashionable urban impatience with the status quo, whenever and whatever, can continue to remain as the life-blood of the nation, as it continues to be the livelihood of a few among them, at the very least!

Whether or not India is Sri Lanka's much loved and equally hated neighbour, it is the world's largest democracy. India is also home to a multitude of peoples, differentiating cultures that have given to, and taken from the larger Indian-ness, and contributed to the rapid yet smooth conversion of the inherited cultural nationalism into post-Independence constitutional nationalism. Yet, the nation has never ever shied away from viewing and reviewing the constitutional process, if only to test against the changing mores of the changing people, whose present still derives from the past, but with the eyes and goals eternally on an emerging - and at times unknown future. Both within Parliament and outside, the nation has had rapid and at times rabid discourses on the prevailing and prescriptive constitutional scheme.

A hundred-plus amendment to the Constitution is a reflection of the emerging thought processes in India. A series of Commissions, headed often by retired Judges of the Supreme Court, to revisit and review the working of the constitutional scheme, has ensured that the State and the people are not wide off the mark, both in terms of the original goals and aspirations, and also of the road they have set for themselves, for taking them to the future of their collective choice. It is not just that the Executive and the Legislatures have taken the recommendations of such commissions seriously. Acknowledging the need for such reviews outside of the existing framework, their reports are often quoted in and by the Supreme Court of India!

Sri Lanka can begin here. What more, it could go beyond the electoral limitations imposed by the kind of PSC that the Government now has in mind - and limited as it is to resolving the ethnic tangle, through more-or-less devolution. It can come up with positive suggestions, putting habitual cynicism by the way side for a while, even if it meant that it would be tempted to pick it up after a time - and there could also be enough reasons and justification for doing so, if only one went by their collective experience from the past, near and far. The critics of the Executive Presidency too can begin here. Rather than condemning it off-hand when not in power, they can come up with working models of workable alternatives that do not shock the nation or shake the system. They both may need a little bit of shaking up, yes. It should stop there.

(The writer is a Senior Research Fellow at the Observer Research Foundation, the multi-disciplinary, Indian public policy think-tank, headquartered in New Delhi. email: sathiyam54@hotmail.com)