Friday, 30th January 2015
By Lucien Rajakarunanayake
Reducing the term of the Executive Presidency was not a matter discussed as widely as other constitutional changes proposed by the common Opposition campaign. However, President Maithripala Sirisena has made the important and welcome announcement that the period of the Executive Presidency would be reduced to two five-year terms, in place of the current six-year terms.Another matter that needs urgent attention is the ability of a President to immediately move to the office of Prime Minister, after the presidency.
The abolition of the Executive Presidency introduced by J.R. Jayewardene, or curtailing its powers, was among the main issues before the public at the recent presidential polls. The result showed the people gave a clear mandate for urgent and necessary changes to the system of the Executive Presidency in keeping with the need to strengthen democracy.
One of the key amendments to the Constitution so far discussed is the restoration of the restriction on the Executive Presidency for two terms only. This has become necessary after the move by former President Mahinda Rajapaksa to allow an Executive President to have any number of terms in office. This provision, brought in by the 18th Amendment to the Constitution initiated by him, was what made him to call for a snap presidential poll, leaving little time for the Opposition campaign organization. This came with assurances of victory by astrologers, and those who were closely involved in enjoying the benefits of a hugely corrupt administration, as we see being revealed today. Such success at the polls would have given him six more years in office, which would add up to 18 years, and also the legal right to remain for still longer with a subsequent election or elections.
Dictates of family power
There is little debate today that the restriction of the Executive Presidency is most welcome, and is a highlight of the new government's 100-day programme. Its necessity is clear when we see the corruption and authoritarianism, including the highly dangerous supply of arms to private organizations, that is being revealed each day, pointing to the dangers that lay ahead with a presidency that was rapidly moving towards dictatorship and the power of a hugely extended family.
Such a restriction is also in keeping with the best practice in most advanced democratic societies, where the principle of representative government prevails, with the necessary checks and balances of good governance through the proper sharing of power between the legislature, the executive and the judiciary.
Of the main issues canvassed in the recent presidential election campaign, and among the first proposals to be taken up, through the rescinding of the 18th Amendment to the Constitution, which has obtained the endorsement of the voters, is the restriction of the Executive Presidency to two terms, now improved by the proposal to reduce each term to five years and not six.
While this restriction will no doubt strengthen the democratic process in the country, with input towards good governance, combined with other proposed changes, I would strongly suggest the inclusion of another provision, which is also of similar importance, but has so far not been discussed.
This is the inclusion of a provision that will preclude any person who has served the full two terms, or part of the two terms of the Executive Presidency, from immediate subsequent appointment or election to the Office of Prime Minister.
This restriction should apply to one who has served the entire length of two full presidential terms, or for one who has served parts of two full terms, or one full term or part of such full term in the Executive Presidency.
The proposed restriction should be for the length of two full terms for one who has served such period or parts thereof as Executive President; or the length of one full term for a person who has served one full term or part thereof as Executive President.
The danger ahead
One observes here the danger of the absence of a provision in law that precludes an Executive President who has served the full two terms, parts of two terms, or one term or part of it in the presidency, from immediately moving on to become Prime Minister, if the political situation, especially a parliamentary majority, enables such a move.
This proposal is of special significance when one takes serious note of the new Executive Powers that will be attached to the Office of Prime Minister, with the Constitutional changes that will remove the 18th Amendment's provision of unlimited terms for an Executive President. The ability of an Executive President, even with reduced powers than that enjoyed by the current Executive President, to immediately step into the office of Prime Minister with larger executive powers, would vitiate the purpose of the efforts to control or limit the period in powerful executive office for any one person. This continuance in office from one position to another, even with parliamentary control in the latter, is certainly not in keeping with good democratic practice, and would not be in the best interests of good governance.
The absence of such a restrictive provision in the Constitution, leaves room for the Executive President who was defeated in the recent polls, to make a bid to obtain the office of Prime Minister in the upcoming general election, through a parliamentary majority. This could very well lead to the revived continuance of corrupt and non-democratic governance, through the obtaining or manipulation of a parliamentary majority, and should, therefore, be a matter of serious concern in the upcoming amendments to the Constitution.
Recent strategies
This is of special importance when considering the recent presidential election campaign, where supporters of the former President who was defeated, and this candidate himself, said in public that if he is defeated, he would come forward as Prime Minister, with the assurance of a majority vote in Parliament. There are already news reports of some in the SLFP or UPFA members seeking to field Mahinda Rajapaksa to lead a political party or group in the next general election, with the expectation that he would be Prime Minister. All available signs would indicate this to be a most fanciful idea, seeing the unravelling exposures of Rajapaksa Presidency. Yet, the possibility, however, remote of such a strategy being successful calls for action to prevent it, by law.
The reality of this threat is seen in the situation that currently prevails in Russia, where the Constitution allows a President to follow on immediately after as Prime Minister. President Vladimir Putin's record in office as – President – Prime Minister – President again, clearly shows the danger of keeping the office of Prime Minister wide open for a President who completes a term as President. The record shows how after Putin completed his first two four-year terms as President, he immediately moved to the position of Prime Minister for a single term, after manoeuvring the appointment of Dmitri Medvedev, who was his political lackey, to the presidency for one term. He then moved back to the office of President for two more terms and even beyond, later. This means that President Putin could possibly be in office for possibly 12 continuous years, or even longer.
Serious threatAlthough the reintroduction of the two-term limit to the Executive Presidency in Sri Lanka will prevent the Putin example of the Prime Minister moving back to the Presidency in Sri Lanka, the current legal ability for an Executive President of Sri Lanka to move immediately after this office to that of Prime Minister, with larger executive powers than enjoyed by the Prime Minister today, stands as a serious threat to democratic practice.
It can give a future Executive President, with limited executive powers, having little interest in good governance and the democratic process, to continue with corruption, authoritarianism, family-bandyism, nepotism, and other threats to good governance in a single or continued office of Prime Minister.
In bringing about the necessary restriction of the Executive Presidency to two terms, with the welcome announcement that each term would now be limited to five years, I think it will be most useful if the mood that prevails in the country on the need to control the years of abuse of power, is made use of, to also prevent an Executive President who has been defeated or relinquished office, for whatever reason, being able to immediately take over the office of Prime Minister.
As stated earlier, this is particularly important in view of the increase in executive powers that the Prime Minister will have, albeit with Parliamentary control, under the new Constitutional changes that are being proposed and considered. It is best to be cautious in matters of power being continued from one office to another. The call for good governance is also a call for the best legal measures to prevent those with an insatiable appetite for power being rewarded with repeated office that embraces corruption.
From : https://www.ceylontoday.lk/51-83525-news-detail-good-governance-calls-for-gap-between-offices.html
