SRI LANKA: EXECUTIVE PRESIDENCY HAS

HUGE CHALLENGES ANALYSIS

By N. Sathiya Moorthy*-APRIL 22, 2015

With the Sri Lankan Supreme Courts

statutory determination that provisions for transfer of power at the helm, in the
government-proposed 19th Amendment to the Constitution, cannot be enforced
without a mandated public referendum, the much-maligned and equally abused
Executive Presidency scheme will stay, at least for now. On the positive side, especially
for the government, the determination of the Bench headed by Chief Justice K. Sripavan
has kept alive the hopes of early parliamentary polls, promised in President Maithripala
Sirisena in his manifesto for the January 8 election.
While holding that parliament cannot transfer the powers of head of government and
cabinet from the president to the Prime Minister, the Supreme Court has however ruled
that, parliament still has the authority to clear other matters contained in the
voluminous 19-A Bill, based on the customary two-thirds majority. At the same time, the

court also held that the proposed authority for overseeing the nations media, both state
and privately-owned, has to clear a public referendum too.
The national government of President Sirisena and Prime Minister Ranil
Wickremesinghe, respectively leading the nations Big Two, majority Sinhala-Buddhist
political rivals, namely the Sri Lanka Freedom Party (SLFP) and the one-time parent
United National Party (UNP), can breathe easy. The court determination has ensured
that they do not have to take the responsibility for their non-compliance of the more
important of the presidential poll promises. They had also appended to Sirisenas 100day campaign programme, a more realistic attestation that all proposed constitutional
changes requiring a referendum would be deferred until after advanced parliamentary
polls, promised to be ordered at the end of the period, on April 23.
More importantly, the court observation may have stalled and at times reversed the
snow-balling of dissent over what would have amounted to the abolition of the
Executive Presidency. It may have also taken some of the wind out of the sails of the
SLFP-UPFA rebels, increasingly identified with former president Mahinda Rajapaksa,
who had linked a parliamentary vote for 19-A to the simultaneously promised electoral
reforms.
Maybe because it is more serious about the electoral reforms than is credited with the
government did not include the poll reforms package in the 19-A proposals, and see if
they too would require a referendum. The issue is the dichotomy in the proposed
transfer of power from president to the prime minister, as the former is elected through
a direct, national-level election and the latter, through the indirect, Westminster
scheme.
Incidentally, all talked-about ideas, or even the long-pending Dinesh Gunawardane
Committee Report, have addressed only changes in the parliamentary polls. The
presidential poll scheme at the higher end, and the provincial council elections, remain
untouched. While it may still mean greater cohesion in terms of expanding the indirect
elections scheme to a better-empowered office of the prime minister, the provincial
chief minister would continue to remain mostly irrelevant to the constitutional
administration of political management at different levels.

Limitations to de-limitation
Even without the persisting differences between the government and ironical
opposition of the SLFP- UPFA (Sri Lanka Freedom Party-United Peoples Freedom
Alliance) combine over timing of the electoral reforms, there are inherent considerations
that the nation should not overlook. After dilly-dallying for years, the Tamil National
Alliance (TNA), heading the elected government in the war-ravaged Northern Province,
and the Sri Lanka Muslim Congress (SLMC), with substantial presence in the tri-ethnic
Eastern Province, have joined hands to tackle the issue.
At a joint meeting with President Sirisena, the two parties have called for delaying delimitation under the proposed electoral scheme, even if passed. Already left with
reduced numbers in parliament, thanks to large-scale deaths and dislocation, the
Northern Province could lose even more in terms of parliamentary seats. The delimitation proposals under the Dinesh Gunawardene Committee for instance had come
in for a lot of flak, particularly from the ethnic minorities.
If implemented, not only would it have reduced the number of minority seats in
parliament, but would have also carved out new electorates (constituencies), where the
ethnic minorities in mixed constituencies of the East, the Upcountry and the urban
Colombo conglomerate, would have had a much-feeble say in choosing the victor. Some
minority leaderships, particularly of the would-have-been worst-hit Upcountry Tamils
were working on counter-proposals, but to no avail.
Any unilateral delimitation exercise has greater demographic consequences in a nation
recovering from the socio-political ravages of the ethnic war fought for decades.
Considering that until the 2010 parliamentary polls, there used to be close to 50 Tamilspeaking MPs from the denominational Sri Lankan Tamil, Muslim and Upcountry Tamil
communities, any further reduction in parliamentary representation for the ethnic
minorities would become even more unacceptable.
Having experimented with the Westminster form of first-past-the-post system for
parliamentary polls, and following it up with the proportionate representation (PR)
system for another three decades, the general mood, particularly among the Sinhala
political majors, is to have a mixed system, combing elements of both some seats that
are directly-elected, and some others through the PR scheme.
Simultaneously, there are also proposals to increase the number of parliamentary seats

from 225 to 250, with different formulations being proffered for division between the
two schemes. Though successively, the existing electoral scheme was blamed for much of
the nations ills, including the ethnic issue, in its time, no serious studies seem to have
been undertaken on the possible consequences of any new scheme, to be able to
improve the situation.
The question now is whether any hurried introduction of electoral reforms would serve
any useful purpose and would it not be prudent refer it also to the Supreme Court, for
determination before being presented to parliament. At the end of the day, sociopolitical realism would dictate that the realities of the ethnic hurt could be ignored at
nations great peril. The legal acumen would demand that the Basic Structure of the
nations constitutional scheme is not altered through subterfuge of whatever kind. The
ethnic minorities, particularly the long-aggrieved SLT community and leadership, not to
leave out the other denominations, too would have to do their bit in sticking to the Basic
Structure in terms of ethnic negotiations.
Yet, for now, its the reality that the 60-strong Rajapaksa faction in the SLFP-UPFA
would matter the most in terms of getting the truncated 19-A passed without still
insisting on electoral reforms. The alternative would be for President Sirisena to
dissolve parliament without consensus within the party and alliance that he leads, one
year before elections are due, and carry on with reconciliation efforts with his
predecessor and those could count on the latters election appeal to win their own seats,
when it came to that.
*N Sathiya Moorthy is Director, Chennai Chapter of the Observer
Research Foundation. He can be reached at: sathiyam54@gmail.com
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