Elected Presidency!

Double-bubble toil-andtrouble
19A is a curates egg; its yolk a burden (sic)
March 14, 2015, 4:28 pm

Bishop: "Im afraid youve got a bad egg, Mr Jones";

Curate: "Oh, no, my Lord, I assure you in parts it is excellent!" (Punch: 1895)

by Kumar David-March 14, 2015

When Candidate Sirisena reneged on his promise to

abolish the Executive Presidency (EP) he became the third leader following
CBK and MR who has been deceitful. The Memorandum of Understanding
which launched Sirisenas campaign reads: "The present executive
presidential system will be abolished within a hundred days and replaced
by a Parliamentary form accountable to the people. Under the
Parliamentary system, the President will symbolize national unity and have
duties and powers appropriate to the position". There is not a shred of
ambiguity. This refers to a figure-head president fulfilling ceremonial
functions. Some may opine that that is not a good idea (I will discuss it
anon), the point here is that this is what was pledged by Candidate
Sirisena and those who backed him. These days I enjoy smirking at
friends, comrades and neighbours who were aghast when I suggested in
December 2014 that we should pressurize Candidate Sirisena by
threatening to withdraw support if he dithered on his promise to abolish

EP.
The 100-Day Work programme says: "Wednesday January 21: The process
will begin of abolishing the authoritarian executive presidential system and
replacing it with an executive of a Cabinet of Ministers responsible to
Parliament". Note carefully the use of the words "abolishing" and
"replacing". Are we now to conclude that the intention all along was merely
to beguile people into a false belief that he would completely abolish EP?
Again hold your fire if you think abolition is not a good idea; thats a
different matter; I am only pointing out the explicit, unambiguous promise.
The conclusion that the public was deceived after the votes were counted
is hard to evade. This is harsh; President Sirisena is a good man, many
would say personally an excellent man, and I abhor the return of
Rajapaksa, but all that too is another matter. This judgement about his
failure to abolish EP though harsh is legitimate, and before discussing the
merits and drawbacks of 19A it is sobering to rue how soon power can
influence even very good men. (As a compromise I will accept transitional
executive powers for this directly elected president, but for this one term
only).
What forces oppose abolition?
Primarily the part of the
Sinhalese community that
believes the anti-LTTE war
could not have been won
without an authoritarian
focussing of power. The JHU
said so during the war but is
now prepared to compromise
and accept substantial pruning
since the war is over and the
LTTE comeback threat a bogey.
The JHU is willing to be flexible
to ease relations with Sirisena
and Ranil. The SLFP is all a
mess; most MPs have little
interest in constitutional affairs
and orient themselves on the basis of personal profit and loss.
An interesting question is what does Ranil want? He was a devotee of JRs
EP theory but changed. Either anti-EP pressure was too much to withstand

or he puked at CBKs and MRs cock-ups. If now guided by personal

advantage he would wish to reduce presidential and enhance prime
ministerial powers and aim at wining the impending parliamentary
elections. If he covets future presidential ambitions, the converse holds.
Maybe he is not motivated by a personal calculus and is cruising along with
the art of the possible. It is the criss-crossing self-interest of key-players
that makes it is difficult to confirm the final shape of 19A. Extending
speculation, let us ask "What does Sirisena want?" SLFP circles are abuzz
with Let us make Sirisena prime minister" talk. This cuts out Mahinda,
heals the SLFP rift, marginalises the Wimal-Vasu loonies, is acceptable to
the CBK-Rajitha wing that undercut Mahinda, and crucially, it may be an
election winner. If this is the plan (Sirisena has shown no interest so far)
its protagonists would wish to strengthen the PM and weaken or abolish EP.
But lets move on beyond ad hominem titillations.
The curates egg
The Punch cartoon of 1895 was intended to poke fun at class in Victorian
England snobbery and grovelling. The humble Curate not daring to
divulge that the egg at the overweening Bishops breakfast table was
rotten, squeaks out "Oh, no my Lord, in parts it is excellent". Over time
the idiom lost its relish and came to denote something bad but also with a
good side. After the Sirisena-Ranil double act ends, the negative side of
19A may come into play.
Although we were promised a Westminster-like parliamentary system,
what 19A offers is modelled half-heartedly on the semi-presidential French
Constitution. The president is elected nationwide [so will be ours: Articles
2(b) and 4 (30) (2) of 19A]; so is parliament which de facto chooses the
prime minister, only formally appointed by the president. The president
cannot dismiss the PM unless he looses his majority or suffers
parliamentary censure. When the presidents side controls parliament he is
dominantin executive action, choosing whoever he wishes for a
government which implements his programme and agenda; he is the
overriding national figure and the state will once again be susceptible to
the worst excess of the Rajapaksa era.
However if the Presidents opponents control parliament, he will be
hamstrung and must choose a prime minister and cabinet which will
implement a programme and agenda that he may oppose. When opposing
parties control parliament and presidency in France they call it cohabitation

since the French dont care what you do so long as you pronounce it
properly! If it happens in Lanka it will be more brawling than habitation.
(The Sirisena-Ranil duet is different for special reasons to do with
Sirisenas election).
Unlike most parliamentary systems the French prime minister and cabinet
ministers need not be members of the National Assembly (parliament).
This is an attempt to mingle incompatible presidential and parliamentary
systems. The former requires separation of powers, the latter a merger of
the executive and legislature. Since neither structure is explicit in 19A an
unstable future beckons Lanka. The root of the failure of the French
system, and a lesson that Lanka will learn the hard way, is that a president
elected nationwide caries the image and expectation of being the source
and font of state power. If he commands a parliamentary majority he is a
potential autocrat, another Rajapaksa. If parliamentary majority and
therefore cabinet are opposed to him, we have deadlock; deadlock worse
than between the Obama Administration and the post November 2014 US
Congress because Obama at least has a cabinet entirely of non Congress
persons of his choosing.
The powers vested in a US president are huge; not so under 19A. A
president voted in under 19A without a parliamentary majority, will be a
lame duck, but sporting the plumes of a peacock. If one dare infringe on
the Bard I would murmur Double-bubble toil-and-trouble rings truer than
his "Double double". If President and Parliament-PM are both chosen by
universal suffrage, but if they champion opposed programmes, then we
have a double-bubble "fire burn and cauldron bubble" story.
The directly elected presidency must go; either way it is bad. Either it
absorbs or it contradicts the supremacy of parliament. The presidents role
as "Head of the Executive" [Article 4 (30) (1)] must be rescinded. But the
functions and duties envisaged in Article 6 (33) (1-3) are commendable
and should be retained; inter alia these expectations include, symbolise
national unity, uphold the constitution, preserve religious and ethnic
harmony, promote reconciliation, ensure the proper functioning of the
Constitutional Council, and certain specified ceremonial duties.
Edible portions of the egg
There are several commendable or interesting provisions in the 19A draft.

Independence in the appointment and functioning of key Commissions has

been rescued from Mahinda Rajapaksas megalomaniac power grab. Old
17A has been restored via 19A and appointment criteria and procedures
for eleven Commissions specified Elections; PSC; UGC; Police; Audit;
Human Rights; Bribery; Finance; Delimitation; Procurement; Official
Languages. Appointment will be on the recommendations of a
Constitutional Council, chaired by the speaker and including the prime
minister, leader of the opposition and seven other parliamentarians. The
function of the Constitutional Council is recommending appointments to
the aforesaid eleven commissions and approving appointment of judges of
the higher courts, members of the JSC, Attorney-General, Auditor-General,
IGP, Secretary General of Parliament and the Ombudsman.
There will be a Council of State (CoS), not to be confused with the
Constitutional Council (a bad name conveying an incorrect meaning
Appointments Council would have been appropriate). A CoS is to be
established since Lanka does not have a Senate or Second Chamber. Its
functions will be purely advisory on matters of policy, gazetted bills and
matters referred to it by the president or the cabinet. It is a toothless
entity; its method of appointment drives home this impotency.
Thirty six persons of integrity and eminence will be appointed to the CoS
on the joint recommendation of prime minister and leader of the
opposition, twenty more (again integrity and eminence is specified) will be
appointed by leaders of other political parties, and a few stragglers may
creep in as appointees of independent groups. All Provincial Chief Ministers
are also in the CoS. It is not sated, but I trust well understood, that the
CoS shall not include parliamentarians that would be a preposterous
travesty of the "two-house" concept. This needs to be explicitly specified
as no scam is beyond the imagination of Lankas parliamentarians.
Crucially, fifty-six of sixty-five CoS members are nominated by
parliamentary leaders; hence it is going to be a made in parliament rubber
stamp!
The powers of the president are tightly ring fenced since under Article 7(2)
and (3) of 19A "The president shall always, except in the case of the
appointment of the prime minister or as otherwise required by the
Constitution, act on the advice of the prime minister or other minister".
Though "the president may require the prime minister or minister to
reconsider, but shall act on the advice given after such reconsideration".

Therefore a president who is not from the governing party, though directly
elected by a popular mandate, is a lame duck with a phoney halo. I again
underline that a directly elected parliament and a directly elected
president, when of opposed political hues, constitute a scheme designed
for intra-state conflict. My duty is to speak truth to power though power
will take no notice. There is a new air of freedom and absence of fear
everywhere; surely 19A should aid these winds of change, not throw a
spanner in the works.
Posted by Thavam