“It will be wrong to assert that it was because of the presidential system and its inherent features that the Rajapaksas were able to appropriate political power,” writes law professor Raghav Pandey in the following article.  He argues that Sri Lanka’s opposition parties are mistaken in believing that the country would be better off under a parliamentary government. Instead, he suggests, “the answer is in the development of strong institutions under the constitutional framework.”

Pandey is right. Sri Lanka’s is a presidential system in name only, because it doesn’t follow any of the cardinal principles of the U.S. original. For instance, the Sri Lankan president can appoint or dismiss the prime minister, but a key presidential feature is that the executive and legislative branches are independent of each other. Similarly, a constitutional amendment in 2020 gave Sri Lanka’s president total freedom to appoint executive officials, but the U.S. system requires that even the president’s own cabinet be approved by the Senate.

Sri Lanka would be better served adhering to true presidential system principles rather than reinventing this wheel or reverting to a parliamentary government.

-Bhanu Dhamija

[Excerpts of article published on the Firstpost website on 2 May 2022.]

Sri Lanka’s Opposition barking up the wrong tree by blaming presidential system for current mess

The chief Opposition party of the island nation has proposed a constitutional amendment to change its presidential system to a parliamentary system

[By Raghav Pandey]

Recently, Sri Lanka’s chief Opposition party proposed a constitutional amendment to change its presidential system to a parliamentary system. From a purely political standpoint, some may justify such a proposal on account of the appropriation of power by the Rajapaksa family and irresponsible decision making as a consequence of it. However, this is not true in constitutional law terms.

All democratic systems largely follow either the parliamentary or the presidential form of government. The British constitutional system is the mother of the parliamentary form of government, and it remains the numerically dominant system for representative governance. The presidential system evolved in the US and subsequently was adopted by nations with substantial American influence, for instance, most Latin American nations, South Korea, etc.

Scholars have differed and argued on which system is better for a long time. What most agree upon are the particular advantages and disadvantages associated with both systems. Both the systems are different because of the differential application of the doctrine of separation of powers. This doctrine contemplates that the three wings of the government — executive, legislature and judiciary — should be separate for efficient governance and to avoid any concentration of power.

In the presidential system, there is complete separation, and the president is directly elected by the people. In the parliamentary system, on the other hand, the executive is part of the legislature, and the government is accountable to the parliament. Any government which loses the majority in the parliament also loses power.

In India, the Constitution provides for parliamentary democracy. The primary advantage of this is complete harmony between the executive and the legislature. If there is a political party which has the majority in the house, then it can pass laws and implement them with ease. This is often argued as a feature which doesn’t necessarily guarantee a stable government, as the members of the legislature may withdraw their support, and the government may fall. This is something which we have seen in India and sometimes leads to policy paralysis. On the other hand, if a party has a comfortable majority in the house, the government is even more powerful while implementing its policies and agendas, as it can also easily pass the required laws in the legislature.

Also, the prime minister is the head of the government, but the other ministers, as well, need to be elected representatives from any of the houses. This ensures that other ministers have themselves faced elections and have legitimised their appointment. Thus, ministers in this system are at least marginally more independent than the ones in the presidential system, where they are nominated by the President and completely owe their jobs to the president.

The presidential system implements a total separation of powers. Herein, the executive power is held by the President, and he or she is directly elected by the people. The President then appoints anyone they deem fit as ministers or secretaries to handle the different governmental portfolios. Every major functionary of the executive is a nominee of the president, and they don’t need to contest elections on their own. This in itself is an advantage in one way, wherein the president can nominate industry experts as ministers or secretaries. For instance, a senior professor of finance may be made the finance minister, as there is no need to contest any election. At the same time, it is argued that since the president nominates the ministers, he or she holds tremendous influence over them. Consequently, leading to a possible concentration of power in the hands of the president.

Since the presidential system implements a complete separation of powers, authoritarianism is less probable.

The rise of authoritarianism is something which most democratic systems seek to check. Placing this in the context of Sri Lanka, the narrative of the Opposition is proposing a wrong answer for their current predicaments. It will be wrong to assert that it was because of the presidential system and its inherent features that the Rajapaksas were able to appropriate political power.

We have seen in Pakistan that the parliamentary system either hasn’t been able to stem authoritarianism from rising time and again. Even here in India, the parliamentary system couldn’t stop the Indira Gandhi government from bulldozing our Constitution, all its value system and its norms. The parliamentary system itself led to Sheikh Mujibur Rahman appropriating so much power that he could temporarily reverse it to the presidential system.

Critics of the presidential system have cited examples of Latin American nations where the presidential system has seemed to fail. But such criticisms have failed to take into context the failures of parliamentary systems as well in other parts. In such countries, the presidential system was introduced as a consequence of American influence. There is no guarantee that parliamentary systems would have fared better when we can see that it has routinely broken down in countries like Pakistan, etc.

The presidential system is the oldest system to be successfully working under a written constitution in the US. It is important to contextualise that the parliamentary system evolved in Britain in an organic manner, and today the UK doesn’t even need a written constitution to function and conventions and customs are enough to sustain the government edifice. The UK remains the only country to have done that.

Since the presidential system implements a complete separation of powers, authoritarianism theoretically speaking, is less probable because authority is strictly diffused amongst the three wings of the government. For instance, a despot winning elections and becoming the president is simply not enough because Congress or the legislature can refuse to back by law any of the measures of the despotic president. There is also always a possibility of impeachment. Alternatively, if a despot becomes the prime minister in a parliamentary system, he or she is also the leader of the winning party in the legislature. Thereby allowing the prime minister to also back by law whatever it deems fit. For instance, the Indira Gandhi government could push through Constitutional Amendments with so much ease. The 42nd Amendment is a case in point amongst several others where her government almost re-wrote the entire Constitution. This is something which is relatively much more difficult in a presidential system simply because Congress or the legislature is not under the control of the president.

Therefore, the Opposition in Sri Lanka is certainly suggesting a wrong answer. The answer is in the development of strong institutions under the constitutional framework. For instance, a truly independent judiciary is something which is a sine qua non, especially in countries where the constitutional norms have not sufficiently entrenched themselves. In such situations, the role of the judiciary is critical in maintaining and preserving the constitutional machinery. Even in India, this was not the case when the Indira Gandhi regime was in power, and the judiciary acknowledged its inability to even ensure personal liberty in the infamous case of ADM Jabalpur vs Shiv Kant Shukla. However, and thankfully, the judiciary in India did take on the government and limited its power to amend the Constitution through the basic structure doctrine, propounded in perhaps the most important case of our constitutional history — Kesavananda Bharati vs State of Kerala.

Thus, wherever there is a problem with authoritarianism, it has more to do with the systems and institutions of constitutional control. The presidential system, in fact, can be argued as a better system of representative government in a democratic system for its advantages of efficient policy-making and stability.

[The author is an Assistant Professor of Law at Maharashtra National Law University Mumbai. Views expressed are personal.]