Editorial

tussle between the executive  president and public authorities

Sri Lanka is the first country in South Asia to enjoy universal adult franchise. Introduced in 1933 by the British, is has survived  up to date. Coupled with the highest rate of literacy in the region the country should be a beacon for democracy. From 1948 to 1977 the regular change of governments resulted in  some form of accountability.

However the last three decades have seen the gradual undermining of democratic institutions in the country. The main culprit for this has been President  J.R. Jayewardene’s 1978 constitution which places the executive presidency above the constitution. The proportional representation system of electing members of parliament introduced in the ’78 constitution gives the leaders of political parties absolute control over the party. Since the executive president and the leader of the party is always the same person the power wielded by that person becomes even greater.

The two constitutions under which the country was governed since independence in 1948 to 1978 placed the executive power in parliament and not on an individual. The first past the post electoral system had its own checks and balances other than when a party won with a two third majority. That happened only twice in 1970 and in 1977. Under the 1978 constitution the  president, once elected cannot be removed. There are provisions to impeach the president but the procedure laid out is such that it is next to impossible to carry out. The total immunity enjoyed by the president while in office makes his decisions and actions exempt from a  court of law.

The controversy surrounding the non implementation of the 17th Amendment which established the Constitutional Council is only one example as to how an elected dictatorship can over ride the constitution itself.

It is sad that the campaign to abolish or at least amend the constitution has run out of steam. In the early 1990s the campaign brought the issue of the all powerful executive presidency to the forefront of political discourse in the country. The SLFP and the breakaway UNP group led by the late Lalith Athulathmudali and Gamini Dissanayake taking a cue from civil society  made it the core issue in their campaign against then President Ranasinghe Premadasa.

The issue came to the forefront during the 1994 general and presidential elections and  former President Chandrika Kumaratunga promised to abolish  the presidency within one year of gaining power.

That like most other pledges, of course never happened and more than a decade later it is no longer a major issue.

Civil society continues to campaign for human rights, media freedom, accountability etc., etc. These by themselves are noble causes.

But truth remains that none of these are achievable as long as the executive presidency remains in the current form. The time has come to re-focus on the executive presidency  and launch an effective campaign  to  reform it with greater accountability if not for the abolishing of it and the return to the earlier form of governance.

Within the last few decades Sri Lanka has witnessed a situation where not only have executive presidents failed to ensure the proper functioning of public authorities, but have in fact become the enemies of public authorities.

This  gave rise to the 17th Amendment to the Constitution. At the time, it required that development of strict constitutional provisions were essential in order to place obstacles in the path of those — including the executive president — who attempted to interfere politically with appointments, promotions, transfers and other matters relating to officers of public authorities that are considered vital in the country. The authorities coming under the 17th Amendment are the Elections Commission, Public Service Commission, National Police Commission, Human Rights Commission of Sri Lanka, Permanent Commission to Investigate Bribery or Corruption, Finance Commission and the Delimitation Commission. According to Article 41(b)(1) of the 17th Amendment, no persons shall be appointed by the president as the chairman or member of any commission specified in the schedule to the Article, except on a recommendation of the Constitutional Council. Also, all important appointments of persons within the departments controlled by these commissions — except those specified in the 17th Amendment — cannot be made without the recommendation of the said commissions.

A book by the Asian Human Rights Commission An X-ray Of The Sri Lankan Policing System & Torture Of The Poor pointed out that this restriction placed on the president and others regarding the appointment of persons to some of the most vital public authorities, had a history. That is, since the promulgation of the 1978 Constitution, recruitment and control of important officers working in the various public authorities were arbitrarily carried out often according to the dictates of politicians or on political consideration. This had reached such calamitous levels that a specific amendment to the constitution itself was needed to put an end to the practice.

Accordingly, the amendment was certified on October 3, 2001 and the common term used to describe the evil that the 17th Amendment was meant to cure was ‘politicisation’. In the unanimous passing of the 17th Amendment, there was common consensus among all the political parties that appointments to positions in public authorities should be based on objective criteria and merit, rather than on other considerations.

Under the 1978 Constitution, there had developed a practice where the executive president was directly involved in doing away with merit-based and objective criteria for appointments to public authorities. Once this happened, there existed little possibility for these public authorities to function and perform in the manner expected from such authorities. Hence, public authorities had become dysfunctional due to undue interference by the executive president and those acting on his behalf. The 17th Amendment was proposed as a check against the president acting in such a manner.

While a constitutional safeguard had been created against the arbitrary intervention of the executive president in the running of public authorities, on a practical level, the executive president was still in a position to prevent the operation of this safeguard. Three methods could be used. First, the president could make the Constitutional Council — which is the effective body in the structure proposed by the 17th Amendment — dysfunctional. This could be done by delaying or obstructing the appointments of council members.

The second method would be to delay or obstruct the appointments to the various commissions, i.e. by not submitting the nominations of proposed candidates for such positions whose merit the Constitutional Council is to consider. The third method, and the most resorted to, would be to fail to provide the funding and other resources essential for the functioning of the commissions. By this method it would also be possible to prevent a commission from doing what it is supposed to do, due to lack of competent personnel, equipment or other financial resources.

So, while the 17th Amendment proposed some serious measures to control the president from behaving in the arbitrary manner that the 1978 Constitution made possible, nonetheless, the tussle between these institutions and incumbent president goes on. And sadly, the balance is still in favour of the president. The president can still prevent these public authorities from benefiting from the measures proposed by the 17th Amendment. This malady has currently affected many of the public authorities in Sri Lanka.

The 17th Amendment was one of the most significant measures adopted by the parliament of Sri Lanka to check the powers of the executive president. So there is also a tussle between the parliament and the executive president over the functioning of the public authorities. However, it must be noted that while parliament proposed a constitutional framework for the control of the public authorities, and thus the powers of the president, it has not followed up with any practical measures to ensure the proper implementation of the law it created. It seems that the parties that collaborated to bring about the 17th Amendment have not committed themselves to it in any decisive or consistent manner. Thus, the tension between the executive president and parliament is yet to be resolved.

Today the Sri Lankan public is faced with a grave crisis, as these public authorities are proving incapable of providing the services and facilities they were expected to provide. The 1978 Constitution still overpowers them in favour of the executive president’s capacity to act arbitrarily. Much of the ideological crises and the resultant loss of hope prevalent in the country currently also centres on the frustrations felt by the citizenry due to their inability to get vital public authorities in the country to function adequately.