Victor Ivan and Dr Nihal Jayawickrama have made the argument that the next President will be a mere nominee and powerless as a result of the Nineteenth Amendment. In their opinion, the next President will be similar to President William Gopallawa under the 1972 constitution. Summing up Dr Jayawickrama’s opinion, Victor Ivan has said that the current Executive Presidential system would flip into a Parliamentary system soon after the appointment of the next President. “Then policies of the Political party with majority seats in the Parliament will be activated, not the policies of the President” Ivan had said.
But this is not a strong argument. In other words, it is hard to believe that the Executive Presidency which was very powerful will be powerless due to the nineteenth amendment. To understand this, it is necessary to understand the nature of our Constitution and the Presidency.
In fact, despite the fact that the governing system of our country is introduced as Executive Presidential System, Sri Lanka has a mixed or half-Presidential system. The inability of understanding this basic nature of our constitution has led to many false interpretations of it.
The mixed governing system is clearly different from a Presidential system or a Parliamentary system. In a Presidential system, the Executive is selected separately and independent from the legislature. As a result, the existence of the Executive does not depend on the legislature. The United States is an example of such a system.
In a Parliamentary system, the Executive is born within the legislature. Therefore it depends on the majority of the Parliament. India and the United Kingdom are examples of such a system. Until the 1978 constitution, Sri Lanka also had that kind of system.
The 1978 constitution introduced a mixed or half Presidential system which is a combination of Presidential and Parliament systems. In this context, the Executive consists of two parts: a President elected by a separate election, and a cabinet based on the majority of Parliament. Chapters 7 and 8 of the 1978 Constitution appear to have clearly established those two sections of the Executive. It is clear that the President (Similar to a Presidential System) is independent of Parliament, but the other half of the Executive, the Cabinet (Similar to a Parliamentary System), depends on the majority of Parliament. This dual nature of our Executive has led to many misunderstandings and misinterpretations.
Hence, from 1978 until now, the Government has been decided not by who the President is, but by who possesses the Parliament majority. In this background, the party that wins the largest number of seats in the Parliament, receiving real power is not a change after the 19th Amendment.
This was not apparent at the time 1978 Constitution came into force, as then President’s party had the Parliamentary power. It was only in 1994, for the first time it was tested whether the Parliament majority is decisive in determining the power of government. Leader of the People’s Alliance (PA) Chandrika Bandaranaike Kumaratunga became the Prime Minister securing the Parliament majority at the General Election held on August 16, 1994. For several months until the Presidential election was held, the Kumaratunga-led coalition was considered the government while D.B. Wijetunga was in office as the Executive President. Accordingly, the presidency who is recognised to have unlimited powers became a mere nominal position.
Nevertheless, this was made quite clear when the United National Party(UNP) won the General Elections on December 5, 2001. Chandrika Kumaratunga was the President at that time. But for two and a half years, it was not a government of Kumaratunga but a Ranil Wickremesinghe government, based on the majority in Parliament. There was no 19th Amendment at the time. Yet the government was decided based upon the Parliament power. That is the true and original character of our Constitution.
Thus, under the 1978 Constitution, it is clear that the Executive power, or government, has occasionally swung between the President and the Parliament. The most decisive factor in all those occasions has been Parliament majority.
In that sense, the Sri Lankan constitution is actually a Parliamentary system rather than a Presidential system. In this system, the President is stronger only if he/she holds the position and authority as a party leader, more than any constitutional power. It enabled the President to exercise powers of the parliamentary majority as his personal powers.
The constitution of any major party in Sri Lanka is not even as democratic as the Constitution of the country. No member can challenge the leadership of his/her party. In addition, the President will be elected considering the entire country as a single constituency which will receive the highest attention. As a result, people have a natural tendency to look at a single, specific person as their leader. Hence, the President enjoys more power than what is vested by the Constitution. But this power is subject to the Parliament majority. In the absence of Parliament majority, it was always a nominal President and the real Executive was generated by the Parliament.
Even after the 19th Amendment, this situation cannot be expected to change, because, in this mixed system, the power of the President has so far been determined by his or her position and power of the political party with Parliament majority, rather than constitutional provisions. This time the Presidential Election is to be held first. There is a huge possibility that the General Election will be won by the same party that wins the Presidential Election.
Therefore, this time also we might see a President and a Prime Minister elected by the same party. Therefore if the President holds the leadership of the winning Party, it will be a Presidential governing system. Things such as the incapability of the President to hold ministries will not be factors that undermine his power.
However, two key facts must finally be mentioned - We cannot say that the 19th Amendment has no effect on the elected-President. For instance, it has greatly diminished powers of the President, to call for a General Election when an opposition party is in power. But if the parliamentary majority is also with his party, such amendments will not have any significant impact.
Secondly, if Gotabaya Rajapaksa wins the presidential election, then there is something special to say. Despite the nomination of Gotabaya, it appears that Mahinda Rajapaksa is trying to outdo him as the party leader of Pohottuwa and the main character of the Presidential Election. If he becomes the Prime Minister, then, in practical terms, the question of who is the real leader of the party will arise. If the answer to that question is Gotabaya Rajapaksa, the next will be a President based government. But if the answer is Mahinda Rajapaksa then it will be a Prime Minister based government.
But the important point is that it is not a result of the 19th Amendment. It will be a question of who is the real leader of the Pohottuwa party.
The next president by no means will be a one like William Gopallawa. If the nature of the next president is to be explained by a personal example, the best example will be Chandrika Kumaratunga. When she won the General Election in 1994, she received the true Governing power even though Wijetunga was the President. When she became the President, she was a powerful President as long as her party enjoyed the majority in the Parliament.
But when her party lost parliamentary power in 2001, she lost her power and became a pragmatic nominee while the Prime Minister Ranil Wickremesinghe and his Cabinet gained the real power. Even after the 19th Amendment, this attribute will not change.
(This article was published in Raavaya)
Anuruddha Pradeep Karnasuriya is a Senior Lecturer, Dept of Political Science, University of Sri J’pura