Tuesday, August 16, 2016

The Executive Presidency and its discontents

Alexander Hamilton
Like most other institutions of political privilege, the Executive Presidency (EP) has its champions and detractors. Those who support it cite the extraordinary powers conferred on whoever holding it, the fact that it wields authority in ways a parliamentary system can’t, and the point that it is the best if not the least imperfect form of leadership which guarantees the unitary character of the State. In other words, the champions are more often than not POLITICAL constitutionalists, who prefer the common good to individual rights and contend that the sovereignty of the State precedes the sovereignty of the individual.

Those opposed to it, on the other hand, are LEGAL constitutionalists, who privilege individual rights and who argue that the EP vindicates the majority over the minority and that by empowering an individual to become (as Colvin R. de Silva put it) “both kingpin and motor of the State.” This, they believe, often concentrates power within that individual and absolves him whenever he undermines the rule of law, judicial independence, and law and order.

Both sides have their points. They are debatable. As with all such debatable points however, they are coloured by rhetoric, which in the end tends to conceal the true character of the institution being championed or vilified. Fact is, the question as to whether we need to get rid of the Executive Presidency to do away with its less than desirable consequences can’t be answered by resorting to mere arguments.

This week’s column is an exploration into this institution, which in the opinion of some remains neither here nor there, a product of divergent political systems worlds away from ours. Before going into that though, it would do well to examine the philosophical tradition underpinning the Executive Presidency.

The European and American experience

The political philosophers of the 16th and 17th centuries often privileged continuity over revolution in their writings. The Monarch was seen as an absolute figure that could qualify and trample on individual rights. In particular, Thomas Hobbes rationalised the excesses of such a Monarch by his exhortation against a “nasty, brutish, and short” state of nature which characterised an unruly, ungoverned society. All in all, these thinkers preferred a largely secular form of government where the King or Queen (paradoxically) derived their right to govern from a deity.

The 18th and 19th centuries, by contrast, saw the emergence of the Social Contract, which idealised the government as held by the ruler on trust for the ruled. The jurisprudence of the preceding era was done away with in favour of a jurisprudence which emphasised on private property and individual rights. John Locke and Rousseau, two of the most prolific writers in this regard, observed that governments were flawed but inevitable given the conflicts which uprooted otherwise perfect, ungoverned societies (“an Eden before the Fall,” as Professor Michael Freeman describes them in his book on Jurisprudence), as opposed to the Hobbesian view that those societies were unruly and NEEDED governments to be perfected at the outset.

It was in this context that two historical events occurred: the American Declaration of Independence of 1776 and the French Revolution of 1789, the latter influenced by the former.

John Locke
The failure of the French Revolution to flourish as much as the American War of Independence has to do with how successful the latter was in warding off the pressures exerted on any revolution. In large part this was due to the Republican form of government that the Founding Fathers of the United States preferred. What they wanted was a combination of democracy and meritocracy. Such a combination could be achieved by concentrating power with one person: in name, the Executive. How so?

In the “Federalist Papers” (numbers 69 to 78), Alexander Hamilton differentiated the Executive from both Monarchs and Democrats. The Executive wasn’t a Monarch because he could be impeached if he committed treason or any serious crime, and he wasn’t a Democrat because of his wide-ranging powers to bypass the majority. In such an individual, the Founding Fathers achieved a paradox: a leader who was elected by the majority but didn’t necessarily have to pander to them.

Is this the philosophy that continued to the 20th century, in particular Sri Lanka? To answer that, one must compare the Western notion of the Executive Presidency with what found its way into the 1978 Constitution.

The Sri Lankan experience: deterioration into populism

I implied earlier that in Sri Lanka, the Executive Presidency is seen as a product of divergent systems alien to our political framework. This is tantamount to saying that such an institution is fit only for strong Western democracies, an argument not without its supporters.

As Professor A. J. Wilson has noted, the Executive President birthed by our Second Republican Constitution was a combination of the American and French (Gaullist) systems. He implied that the Constitution was a Gaullist construct, created to enforce stability and continuity but which gradually eroded into a populist dictatorship. Pabodha Hettige, a friend, freelance writer, and law student spoke for everyone who gives in to this view when she once told me that in this country, the EP gave a “free pass to abuse of power” whenever it fell into wrong hands.

Is that it, though? Did those who scripted in the Executive Presidency to our country do away with its merits while retaining its less than desirable qualities? There’s no doubt that those who call for its abolition base their argument on how it immunises the president from checks and balances, allows him to trump the Judiciary, and encourages him to pander to the majority. On the other hand, these critics tend to idealise the Westminster model, claiming that it is superior to the 1978 Constitution.

Nayantha Wijesundara in his book “Whither or Whether the Executive Presidency?” takes to task those who contend that the Executive Presidency is an alien construct ill-suited to Sri Lanka. He argues against the Westminster system on two counts: that it tends to accumulate power within a single party to the extent of marginalising minority parties, and that it is geared more at societies largely free from internal conflict. On that basis, he argues, Sri Lanka shouldn’t revert to the Westminster model, for to do so while ignoring socio-political realities would be foolish.

The Westminster model and its myths

Those who praise the Westminster model do so because they believe it subjects the Executive to the parliament, cuts down on the Executive’s powers if his party loses a parliamentary election, and promotes a kind of separation of powers which the French and American systems don’t. Do these hold water in any sense?

First and foremost, the last point is a misconception when compared with the first: the model doesn’t operate on separation of powers but on parliamentary supremacy, which isn’t the same thing and which led Rousseau to claim that in England, the people were free during elections and were slaves (under what Lord Hailsham later called an “elective dictatorship”) after them. And as a distinguished lawyer argued in an article some time back, “parliamentary sovereignty is no synonym for people’s sovereignty.”

Wijesundara in his book goes on to argue that the Westminster model is more suited for administrations which do not face rifts along ethnic and religious lines. The argument merits scrutiny in two ways.

Firstly, supporters of the Westminster model assert that it promotes minority aspirations in a way the EP system doesn’t. Not true. Despite its orientation towards consensual politicking, the fact is that it didn’t stop successive governments from not only disenfranchising minority communities but also setting aside objections to Acts of Parliament which impeded on their right to equal treatment on the basis that public servants couldn’t sue the Crown (see Kodeswaran v Attorney General, 1969). Compound this with the inability of minority parties (in the Westminster model) to make parties that win sizeable majorities compromise (a problem the 1978 Constitution doesn’t have) and you can understand the deficiencies of a system being almost blindly championed today.

Secondly, those supporters point at the tendency of our Constitution to concentrate power and absolve its abuses. True. However, this has less to do with the institution than with constitutional guarantees not being adhered to. The manifest selectivity of past regimes in enforcing some Constitutional provisions and ignoring others (for instance, the 17th Amendment) can be traced to the powers of the EP, but to fault the institution itself without identifying the problems that can be sorted out is myopic. There’s no doubt, after all, that even under as an institution as alluring as the EP, governments can work for reform, as evidenced by the enactment of the 19th Amendment.

Let’s not also forget that the EP as it stands today is not unqualified: Article 38(2) emphasises that the President of the country can be removed if the Constitution is violated. On that basis the argument that the Executive Presidency is below the Constitution and the Constitution, all in all, is more supreme holds water. Added to that is the Constitutional mechanism to impeach the President: while that process is practically hard to go through, there nevertheless are limits placed on the President if ever it is resorted to (Article 70(1)(a), because of which he can’t dissolve parliament when he is being impeached).

Given all these perspectives, where should the debate ideally end?

Liberty, democracy, and the need for reform over elimination

Professor Rajiva Wijesinghe once called the Executive Presidency (as it stands today in Sri Lanka) a “hybrid perversion.” He was thinking of the American and French systems and how superior they were in terms of separation of powers and checks and balances. He was correct. The issue hence is less about eliminating a system that’s been proved to work than about reforming it to cater to the needs of modern representative democracy.

The Founding Fathers of the United States were wary of creating Utopias. Unlike most political thinkers from the preceding centuries, they didn’t justify government on how well it adhered to idealistic tenets. As Mark Card (Adjunct Professor in Government at Tarrant County College, Texas) told me the other day, they were more concerned with achieving a balance between the collective and the individual. And how? By a Constitution that was neither totally democratic nor authoritarian, which created as it did a “paradox of liberty and constraint” that balanced the majority and minority without capitulating to either. Sure, the system wasn’t perfect. But then again it wasn’t meant to be.

Since the eighties there have been calls for reform. There have also been calls for elimination. Both are justifiable. On the other hand, those who oppose them assert that the Executive Presidency is well equipped to protect the sovereignty of the State. That is a basic argument at one level, but it has won currency through the years, so much so that it is conceded that while the Presidential system of government has its faults, throwing it away completely without reforming it would be akin to that metaphor about babies and bathwater.

And it’s not hard to see why. What the 1978 Constitution did was contort the true aim of an Executive Presidency as the American and Gaullist models envisioned it. The EP was never meant to be a populist institution, but was meant to subvert populism in the interests of liberty. Liberty can be conflated with democracy, but as Professor Card implied it can’t: while liberty is about securing individual rights, democracy is about majority rule which can deteriorate into tyranny. The EP privileged the former, not the latter. That in itself bolsters the view that in Sri Lanka, the institution has been twisted beyond recognition and should be repaired. Not removed.

In the debate between reforming and eliminating the Executive Presidency, therefore, and given our current socio-political context, the answer shouldn’t be elimination. It should be reform.

Written for: Ceylon Today, August 16 2016