Abolition of Executive Presidency: Voters’ policy guide to 2024 Presidential election in 15 Q&As

Tuesday, 17 September 2024 00:02 - - {{hitsCtrl.values.hits}}

The Supreme Court has made clear that the abolition of the Executive Presidency cannot be done by an amendment to the 1978 Constitution; it can thus only be done by way of a new Constitution

What is the executive presidential system under the 1978 Constitution?

A President directly elected for a fixed term is the Head of State and the Head of Government who exercises the executive power of the state.
The President exercises executive power with a Prime Minister and a Cabinet of Ministers drawn from Parliament and responsible to both Parliament and the President.
The President is the Head of the Cabinet and appoints and dismisses the Prime Minister and the Cabinet.
The Cabinet is collectively responsible and answerable to Parliament and may be dismissed by Parliament by a vote of no-confidence.
The President is responsible but not answerable to Parliament and may only be dismissed by Parliament by impeachment.

What type of political regime is the executive presidential system under the 1978 Constitution?

It is an elective authoritarian regime-type.
The political branches are elected, but once elected and in between elections, especially the executive has few constraints on discretion and action. This is also known as ‘delegative democracy’.
The executive dominates the other branches of the state, and only exceptionally is Parliament an effective check on the President.
The governing apparatus of the state including the administrative, financial, and coercive institutions are ultimately in the control of one person: the President.
The judiciary enjoys formal independence but the Rule of Law is in practice undermined by the executive dominance of the state via the overconcentration and personalisation of presidential power.
The role of the Constitution is to assist the President in coordinating elites, controlling subordinates, and obtaining the cooperation of subjects in the pursuit of his or her agenda.

What is the culture of governance under the executive presidential system?

State power is concentrated in the office of the Presidency and personalised in the person of the President.
Weak checks and balances on presidential power.
The concentration and personalisation of presidential power weakens institutions and controls.
Encourages populist strongman rule and discourages responsible citizenship and the development of robust institutions.

Is the Executive Presidency needed for stable government?

In theory, the direct election, fixed term, and independent mandate of the President was supposed to create the stability of the executive.
In reality, the constitutional protections given to the Presidency shields the President from necessary checks and balances.
As the President cannot easily be held accountable or removed from office, there is a greater potential for weak, incompetent, corrupt, or authoritarian Presidents to create instability and crisis.

Is the executive presidency needed for economic development?

In theory, the direct election, fixed term, and independent mandate of the President was supposed to create the conditions for decisive action to develop the economy.
In reality, the lack of checks and balances creates greater space for a unilateral and opaque economic decision-making process and thereby greater scope for incompetent or corrupt economic decisions. This is known as ‘agency slack’.
Since the 1978 Constitution was introduced, Sri Lanka has consistently lagged behind other comparable countries in development and frequently experienced economic crises caused by bad economic decisions of insufficiently constrained Presidents.

Does the Executive Presidency promote transparent and accountable government?

The design of the executive presidency is actually intended to remove or reduce day-to-day accountability checks on the President.
The concentration of power in the Presidency enhances executive discretion rather than transparency of decision-making.
The executive presidential system is therefore a system of government that is based on trusting the leader rather than on transparency and accountability of leadership.
If that trust is misplaced or misused, the system does not provide institutional channels for self-correction, except through political crisis. This makes for an economically inefficient and socially costly system.

Is the Executive Presidency needed for communal harmony?

In theory, the idea was that the requirement of obtaining 50%+1 of the national vote in the presidential election meant that Presidential candidates had to appeal to a cross-communal majority.
In reality, this has incentivised presidential candidates to appeal to the nationalism of the majority community at the cost of minority interests.
It is not a coincidence that Sri Lanka’s descent into civil war in the 1980s was accelerated after the introduction of the executive presidential system.

Is the Executive Presidency needed for the country’s territorial integrity?

In theory, the country’s territorial integrity is supposed to be buttressed by having the Head of State and Government elected by the whole country as one electorate.
But the presidential election is not a necessary condition of any country’s territorial integrity. Countries with parliamentary systems are not, after all, predicated on their future territorial disintegration.
On the contrary, the overconcentration of presidential power that militates against more even territorial power-sharing through devolution may even work against creating the incentives for territorial integrity through political unity.

How does the Executive Presidency affect Parliament?

Under the 1978 Constitution, the locus of power, representation, and deliberation has shifted from Parliament to the Presidency. In other words, from a collective and representative body reflecting the diversity of public opinion, to one person who embodies the state. Parliament has become subordinate to the Presidency.
This means the executive is not held to account adequately, governance is not transparent, legislation is not sufficiently scrutinised, public money is not efficiently spent, and it is impossible to swiftly replace an executive that may be taking the country in the wrong direction.

How does the Executive Presidency affect the Rule of Law?

In theory, the President is subject to the Rule of Law and at least limited judicial accountability through the constitutional review and fundamental rights jurisdictions of the Supreme Court.
In reality, the overconcentration and personalisation of executive power means that judicial checks may simply be ignored (especially in the case of lower court orders) and the executive dominance of Parliament means the pre-enactment judicial supervision of legislation for constitutionality can be sidestepped through the legislative process.

How does the Executive Presidency affect depoliticised governance?

The Constitutional Council and the Independent Commissions were introduced to reduce the scope of presidential power and de-politicise governance.
‘De-politicisation’ means appointments to key state offices are made independently and impartially (as opposed to the sole discretion of the President or the ruling party) so as to ensure state services are provided efficiently and fairly, and without discrimination, incompetence, and corruption.
Every President has succeeded in ignoring, circumventing, sidestepping, defying, and on occasion, simply abolishing the de-politicisation institutions. This is allowed to happen because of the overconcentration and personalisation of state power in the President.

Does the Executive Presidency reduce or increase corruption?

Corruption in politics has increased exponentially since the introduction of the 1978 Constitution. Other factors such as the electoral system play a part, but the executive presidency is the main cause.

The reason is that the overconcentration of power in the presidency decreases checks and balances, and thereby transparency and accountability across the system. The temptation of decision-makers to act in the interests of those in power rather than the interests of the public goes unchecked. The result is rampant corruption.

Have the Sri Lankan people accepted the Executive Presidency?

Despite its longevity, both the form and the legitimacy of the 1978 Constitution has been from the beginning, and continues to be, essentially contested in Sri Lankan political discourse.

In the eight presidential elections since 1982, the abolition or reform of the Executive Presidency has been a contested issue in all but one. In four, the winner has promised abolition, while in three, the principal losing candidate (representing just under half of the electorate) has done so. In three of those elections, both the winning and the main losing candidate have promised abolition.
The offer of abolition will not be made by presidential candidates so often and for so long, if the Executive Presidency was a settled institution in the hearts and minds of the people.

Can the Executive Presidency be abolished without replacing the 1978 Constitution?

The Supreme Court has made clear that the abolition of the Executive Presidency cannot be done by an amendment to the 1978 Constitution; it can thus only be done by way of a new Constitution.
Such a new Constitution, which will also need to deliver the ‘system change’ demanded by the people in the 2022 Aragalaya, will need to (re)establish a parliamentary system of government in which the President is the ceremonial Head of State, while the Prime Minister is the Head of Government as the head of the Cabinet of Ministers that is collectively responsible to Parliament. In such a system, the Government retains office only so long as it commands the confidence of Parliament.

What are the choices regarding the Executive Presidency on offer in the 2024 Presidential election?

Of the three main contenders, two (Premadasa and Dissanayake) have offered abolition through a new Constitution, while the third (Wickremesinghe) has promised a new Constitution but left the choice on abolition to the next Parliament.
Based on the plans they have offered in their manifestos and the candidates’ political self-interests after presidential and parliamentary elections, Wickremesinghe is the least likely to abolish the Executive Presidency. Dissanayake is the most consistent advocate of abolition of the three, but the window of opportunity for reform is likely to close before the reform roadmap he offers is able to produce a new Constitution. Premadasa’s intentions are clearer, but whether or not he succeeds will depend on constitutional replacement being successfully carried out within the first year of the new Parliament, which he has not promised.

(The writer is a Senior Lecturer in Public Law and an Associate Director of the Edinburgh Centre for Constitutional Law at the University of Edinburgh, where he co-convenes the Keith Forum on Commonwealth Constitutionalism. He is also a Senior Research Fellow of the Institute of Commonwealth Studies, University of London, and of the Centre for Policy Alternatives (CPA), Sri Lanka. He leads the ‘Reconstitute Sri Lanka’ research project on constitutional and governance reform: https://www.cpalanka.org/reconstitute-sri-lanka/.)

Abolition of Executive Presidency: Voters’ policy guide to 2024 Presidential election in 15 Q&As

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