Sunday Times 2
Proposed constitutional reforms: A move towards Sri Lanka’s first executive diarchy
View(s):The 1978 Constitution came under attack from Sirima Banadaranaike who argued that it marked the end of the Weimar Republic in Sri Lanka. But Lalith Athulathmudali disagreed in the second reading of the Constitution. Athulathmudali’s disagreement was justified because 1978 in fact marked not the end but the beginning of Sri Lanka’s Weimar Republic. Germany’s Weimar Constitution was characteristic of the constituent power of the German People — the power of the people as the ultimate authority. Similarly, the introduction of the ‘referendum’ in our 1978 Constitution marked a Weimar-kind-of shift towards People’s sovereignty. So, if one were to trace the origins of Sri Lanka’s constitutional democracy — it began in 1978.
Prelude to a diarchy: President Sirisena and Prime Minister Ranil Wickremesinghe
Critics of the Weimar Constitution argue that it paved the way for Hitler’s dictatorship, as it did not contain adequate checks on emergency powers. The working of the 1978 Constitution too has failed due to the lack of checks on government power. Sufficient checks were not included due to one mistake — the framers placed too much reliance on the personal merits of the person who became the first executive President. Gamini Dissanayake submitted in the National State Assembly a piece of poetry by Alexander Pope:
‘For forms of Government let fools contest,
Whatever is best administered, is best
For modes of faith let graceless zealots fight
His can’t be wrong whose life is in the right’
His point was that the last line ‘His can’t be wrong whose life is in the right’ bears a close affinity to J.R. Jayewardene, and that he would not fail the people. Designing a Constitution by relying on the personal qualities of the individual heavily compromises the spirit of the Constitution or the concept of limited government.
Constitutional reforms:
From a Weimar system
towards a Gaullist one
A.J. Wilson branded the 1978 Sri Lankan Constitution as the “Gaullist system in Asia”. But, this celebrated label can be regarded as an exaggeration of the extent to which the Constitution of the fifth French Republic influenced the making of the Sri Lankan Constitution. This is due to several reasons. First, several Constitutions equally influenced the making of the Sri Lankan Constitution — amongst them being the Weimar Constitution, the U.S. Constitution and the Constitution of the fifth French Republic. Second, the Sri Lankan Constitution does not at all embody a Premier-Presidential regime like under the Constitution of the fifth French Republic. Charles de Gaulle’s 1946 Bayeux manifesto indicates that he envisioned a Premier-Presidential system for France: that is a strong executive split between the President and the Prime Minister. This kind of split executive is known as an executive diarchy. The Constitution of the fifth French Republic, therefore, upholds a premier-presidential regime where the President is the Head of the State and the Prime Minister is the Head of the Government.
The Sri Lankan Constitution by contrast upholds a Presidential-Parliamentary regime: that is a system in which the President’s executive dominance is guaranteed in the Constitution itself, and the survival of government depends on the confidence of Parliament. Accordingly the Sri Lankan executive President is the all-powerful Head of the State, Head of the executive and the government and is commander in chief. Our system is more like the Weimar system. The Weimar Constitution assures constitutional dominance of the President. As a result, the Reichstag (the assembly) was helpless because the government and the chancellor were like mere creatures of the President. The Weimar President too could refer ‘any’ law to popular referendum bypassing the Reichstag.
There is only a subtle distinction between the Weimar and the Gaullist system. The key difference is that under a Gaullist one, the Prime Minister serves as an authoritative and a viable Constitutional head. The role of the Sri Lankan Prime Minister currently under our Constitution stands far apart from the Gaullist system. What we had at best was President J.R. Jayewardene displaying Gaullist political habits under a Constitution closer to the Weimar system. For example, President Jayewardene used the referendum to extend the life of Parliament in 1982. Interestingly Charles de Gaulle too had the habit of invoking the referendum multiple times in the 1960s.
The proposed Constitutional reforms indicate that we are finally moving towards a Gaullist system to adopt a premier-presidential system: an executive diarchy. The reforms envision the President as Head of the State and Executive, and the Prime Minister as Head of the Government. Evidently this endows the Prime Minister with a serious role in the domestic front running the government. It is also proposed that the President’s powers be increased to play a guardianship role — as the symbol of national unity, to ensure the Constitution is respected, preserve religious and ethnic harmony and promote national reconciliation and integration. These are wide powers without a ceiling similar to Presidential powers under Article 5 of the French Constitution. The proposals indicate that the President need not act on the advice of the PM on two occasions – (1) when appointing the PM and, (2) when it is otherwise required by the Constitution. And the proposed reforms seem to require the President to play a guardianship role to rise above party politics for which he does not need to consult the PM. So, when the executive is split between the President and PM there is a risk of power struggle between the two. For example in France, Pompidou appointed Chirac as a minister in 1971 without consulting the PM Chaban-Delmas.
Power negotiation between the two Heads would depend on their individual political strength and their relation to the parliamentary majority. The French experience shows that power struggles between the President and PM result in the PM parting office — Chirac resigned in 1976, Mitterrand requested PM Rocard’s resignation in 1991. So it’s crucial that power division between the PM and President are clearly demarcated, otherwise it would lead to a competitive diarchy. It is yet to be seen whether the proposed constitutional reforms would be modified to employ such demarcation.
The proposals further suggest that Article 85(2) of the Constitution (the power to refer bills rejected by Parliament for a referendum) be repealed, and the President’s power to dissolve Parliament be reduced. This is good. But, with the President being unable to legislate over Parliament with the removal of Article 85(2) and the power to dissolve parliament reduced, the power demarcation between the President and PM is necessary to ensure that there is no political deadlock during periods of cohabitation or divided minority governments. At present we actually have a divided minority government after the January election. The executive is divided with the President and Prime Minister belonging to different political parties and the executive does not enjoy a majority in Parliament.
But, arguably, we are currently showcasing the best-case scenario of a divided minority government that deviates from the typical minority government example that is characteristic of legislative gridlock. Or so it seems from the outside. This is essentially because legislative immobility and Cabinet instability can be ruled out due to three reasons – (1) there appears to be a working balance of power between the President, Prime Minister and the Cabinet and this excludes the possibility of the elected President governing alone, (2) the party of the President and the majority party in the opposition in Parliament are the same, and (3) there does not seem to be too much division leading to a fragmentation of political parties like during the Weimar Republic (Germany during Weimar experienced party fragmentation as there was hostility between the economic bourgeoisie and the industrial working class). A divided minority government like this could actually bring out the finer points of a split executive and promote a consensual politics between the President and the PM. If Sri Lanka goes ahead with the proposed executive diarchy and pulls it off in the long run, then we could proudly prove ourselves better than the French.
Other reflections
The recently held Nugegoda and Kandy rallies signalled an attempt to make Mahinda Rajapaksa the next Prime Minister. The rudimentary question, which applies not just to Mahinda Rajapaksa, but to any past president is — can an ex-president, who has been elected twice to the office of President by the People, subsequently become PM? If the current constitutional proposals get Parliamentary approval, then any twice-elected ex-President who is appointed as PM under the new system gets to be Head of the Government for the third time. A third bite of the cherry as a Constitutional Head is arguably against the spirit of the Constitution.
The proposal to amend the impeachment provisions so that Parliament can remove the President with a two-thirds majority is antithetical to a constitutional democracy — especially because we do not have a bicameral legislature where the upper house operates as a check against legislative abuse. Where both the President and Parliament act on the commission of the People, neither one is qualified to overthrow the other unilaterally.
The proposal to enable the Chairman of the Council of State to act as President when the office falls vacant is also problematic. Chairman of the Council of State could be any member of the Council — he could potentially be anyone in society as long as he is a person of integrity. But, in our system where the President is directly elected and therefore is a repository of People’s sovereign power, persons in the line of succession to act as President must be drawn from amongst those who have an elected mandate under Article 4 to exercise sovereignty.
(The writer LL.M. (Harvard) is a lawyer trained in
Comparative Constitutional Law. She can be reached at
thileni_w@post.harvard.edu)