Fighting over a toothless Presidency The perks of the original Presidency is intact… are the parties vying for them?

Will former President Mahinda Rajapaksa nominate his brother and former Defence Secretary Gotabaya Rajapaksa on Sunday for the candidacy of Sri Lanka Podujana Peramuna (SLPP) for the forthcoming Presidential election?

Has Gotabaya Rajapaksa completed the process of renunciation of his US citizenship, as claimed by his loyalists?

Will United National Party (UNP) leader Ranil Wickremesinghe allow party’s Deputy Leader Sajith Premadasa to contest the presidential election in the light of even the former’s close allies having started to side with the latter? 

Can Sajith Premadasa or any other UNP candidate for that matter win a Presidential race in the light of the UNP’s poor performance at the Local Government Elections held in February last year? Has the party regained the vote base it had in 2015 or at least contained the erosion of it through the recent election-oriented popular projects such as the Gamperaliya? 

• Has Gotabaya Rajapaksa completed the process of renunciation of his US citizenship, as claimed? 
• Will Ranil allow party’s Deputy Leader Sajith Premadasa to contest? 

These are some of the main issues in the public domain these days; with the said election being just three or four months away. Every party that intends to contest the Presidential Election seems to want to field its leader or next best contender in the fray. Thus it is rumoured that Janatha Vimukthi Peramuna (JVP) leader Anura Kumara Dissanayake would be his party’s choice. 

Nevertheless, in the light of the drastic pruning of presidential powers through the 19th Amendment to the Constitution, it is worth questioning those political parties and those who are obsessed with this election whether it is meaningful to place such a weight on the next Presidential election. The current Presidency is only a little more powerful than the ceremonial Presidency the country had before 1978.

We have witnessed four stages of the presidency in terms of the degree of the power vested in the President since the introduction of the Executive Presidency through the passage of the 2nd Republican Constitution in 1978. First was the period from 1978 until the 17th Amendment to the Constitution was adopted in 2001, second, the period between 2001 and 2010 when the infamous 18th Amendment was introduced, third, from 2010 to 2015, the year in which the 19th Amendment was passed and the fourth was the period after 2015. It is noteworthy that the President under the 19th Amendment, irrespective of who holds the position, is the one whom least power is vested in thus far. 

The 1978 Constitution produced almost a dictator with powers to directly or indirectly control all three arms of governance - the executive, legislature and the judiciary. The President was responsible for the appointment of judges of the Supreme Court and the Court of Appeal, Commanders of the three armed forces, Inspector General of Police, Auditor General, Attorney General Parliamentary Commissioner (Ombudsman), Secretary-General of Parliament and all other important high posts. Except for those judges who could be removed from office after a resolution passed in Parliament with a simple majority, services of all others could be terminated by the President. Since the ruling party had thus far been the party of the President in most cases, there had always been a danger of the judges of the apex and appellate courts also being sacked by the President. Although there was a Judicial Service Commission and a Public Service Commission, the members of those commissions too were appointed by the President and he also could remove them from those commissions, at any time he wished. 

The President who appointed the ministers, deputy ministers, other ministers and the secretaries to ministries had also the power to remove them from their respective positions. Despite the Prime Minister having been appointed on the basis that he commanded the confidence of the parliament, he too could be removed at any time by the President. The chances of a political party other than the President’s party being in office for a full term had been minimal, as the President had the power to dissolve Parliament, one year after its first meeting. 

Interestingly “no civil or criminal proceedings could be instituted or continued against the President in respect of anything done or omitted to be done by the President, either in his official or private capacity.” Thus, it was real dictatorship as the entire State mechanism had to function according to the whims and fancies of the President. 

The credit should go to the JVP for democratising the Presidency to some extent by pressing the Government to prune certain powers of the President in 2001. They did it by compelling President Chandrika Kumaratunga to bring about the Constitutional Council and the independent commissions, which was originally an idea mooted by the UNP, through the 17th Amendment to the Constitution. When the Kumaratunga Government lost the Parliamentary majority after the Sri Lanka Muslim Congress (SLMC) broke away from the alliance led by her (Ms Kumaratunga), the JVP came forward to bail out the Government on several conditions and formed the so-called Parivasa Aanduwa with a twenty-member Cabinet. It was against this backdrop that the Independent Commissions became a reality. Thus, the President was deprived of his powers to appoint persons to top posts in key institutions in the country as he wished. The Commanders of the armed forces, Chief Justice, President of the Court of Appeal, judges of the Supreme Court and the Appeal Court, IGP, Attorney General, Auditor General, Ombudsman and the Secretary-General of Parliament were appointed by the President only after his or her recommendations on the matter were approved by the Constitutional Council. On the other hand, it was on the recommendations of the Constitutional Council that the President had to appoint the chairmen and members of the Independent Commissions. 

Although there was a Judicial Service Commission and a Public Service Commission, the members of those commissions too were appointed by the President and he also could remove them from those commissions, any time he wished. 

These democratic reforms were reversed by President Mahinda Rajapaksa through the 18th Amendment to the Constitution in 2010. Accordingly, chairmen and members of the commissions and the persons to all top posts were appointed by the President and Rajapaksa replaced the Constitutional Council with a toothless Parliamentary Council for him to “seek observations” when making those appointments. Besides, he removed the limit to the number of terms the President could be elected.

Owing to the highhanded actions of the executive, there was a public outcry demanding democratic reforms towards the tail end of Rajapaksa’s tenure and Maithripala Sirisena assumed office on the promise to abolish the executive Presidency in 2015. Since the Supreme Court ruled that a referendum is needed to abolish the executive Presidential mode of governance, the 19th Amendment was adopted in April 2015 to prune Presidential powers as far as possible. 

Now, the President can appoint or remove top officials including the Commanders of the armed forces, only with the approval of the Constitutional Council, despite him being the Commander-in-Chief of those forces. 

One can recall that President Maithripala Sirisena could not remove IGP Pujith Jayasundera following the Easter Sunday attacks. And he was also deprived of the right to appoint and remove ministers without the advice of the Prime Minister. 

It was evident through the Constitutional crisis in October last year that the President had been deprived of the right to remove the Prime Minister as well, whatever the Government does or does not and that has created two power centres in the country. The President cannot dissolve the Parliament until four and a half years out of its five-year tenure is lapsed; even to avert a political crisis. After the current President’s tenure ended, the next President would also lose the right to retain any ministry with him, without the consent of the Prime Minister. 
However, the President has the power to scuttle or sabotage some of the Government activities. He, as the Head of the Cabinet, can refrain from convening the Cabinet, as President Sirisena did recently. He can also delay the appointment of top officials any longer.

It is such a Presidency that the political parties are fighting for. However, the perks and facilities of the original executive Presidency seem to be intact. Are the political parties vying for them?