Whither the executive presidency?

One of the slogans that have gathered much attention in social media these days is #GoHomeGota2022. The gist of the speech made by Opposition Leader Sajith Premadasa during a recent rally in Colombo was also to demand that the President and the Government leave office. While these are catchy slogans which are reflective of the mood of the masses, there is no realistic constitutional path towards regime change without national level elections.  

The risks associated with concentrating excessive power with one institution, i.e. the presidency, and by extension one individual has been well-known for many years. Colvin R. de Silva, the drafter of the first republican constitution of 1972, at the time of the enactment of the second republican constitution in 1978 observed, “An incumbent President will in practice be irremovable. The procedure provided for removal of a President by Parliament is so cumbrous and prolix that one cannot see it ever being resorted to in respect of intentional violation of the Constitution, treason, bribery, misconduct or corruption involving the abuse of the powers of his office or any offence under any written law, involving moral turpitude. Even in the case of the President being permanently incapable of performing the functions of his office by reason of mental or physical infirmity, the same procedure has to be resorted to; so that we can be ruled by a mad President for quite a time.”

It is due to this reason that many have wished for the dilution of executive powers bestowed on the President and called for the empowerment of Parliament and the Judiciary. The bipartisan efforts made in this regard resulted in the 17th Amendment in 2001, which were reversed by the 18th Amendment in 2010 to be reinstated by the 19th Amendment in 2015. The 20th Amendment to the Constitution which was passed by a two-thirds majority in Parliament in October 2020 marks the low point in constitution making and democratic governance in the country. It was nothing but a shameful power grab by the Executive which in turn promised efficient and disciplined governance.

The fundamental criticism of the 19th Amendment was that it created several power centres. The president, prime minister and the speaker were seen as creating their own niches that made the governance impossible. While it could be argued that the principle of separation of powers, as seen in the US constitution would create greater checks and balances of the different branches of the State, the 2015-2019 experiment proved that there could be practical difficulties in governing the country when there are ambiguities regarding the mandates of each centre of power. Therefore, criticisms of the 19th Amendment do have merit and must be addressed during discussions to rectify deficiencies and future course of action. 

If the Gotabaya Rajapaksa presidency has proven anything it is that the executive presidency, with unrestricted power and authority is not only dangerous but also inefficient and unsustainable for Sri Lanka. The fortunes of the whole nation should not be entrusted with the judgement, acumen and competency of a single individual and the results are obvious for all to see. 

As new political forces are jostling to emerge as the political alternatives to the current administration, it is imperative to offer plausible governance structures that would create greater democratic space, create checks and balances on each branch of the State and address the ambiguities and deficiencies that were created by previous constitution-making efforts.