Perceptions Not Facts Driving The Public Discourse

By Neville Ladduwahetty-November 27, 2018, 9:15 pm 

What is starkly evident from the views expressed in the print media and talk shows by commentators of various hues is the divergence between perception and facts relating to the current political situation in the country. The comments given below relate only to the working of a Presidential system of Government as reflected in the 1978 Constitution and its Amendments. The reason for doing so is because the current political situation in Sri Lanka has to be addressed from this perspective and none other.

The tendency to judge current events from the perspective of a Parliamentary System that prevailed under the 1972 Constitution manifests itself every now and then. For instance, a common perception is that the 19th Amendment has transformed a Presidential system into a Parliamentary system because certain powers of the President were curtailed. The fact, however, is that although certain powers of the President were curtailed, its extent did not impact on the core principles of the separation of powers and its related inalienability. Consequently, the Presidential system remains intact.

PRESIDENT of the REPUBLIC

The concept of the Head of the Executive being responsible to the National State Assembly was first introduced in Article 91 in the 1972 Constitution. This Article states: "The President shall be responsible to the National State Assembly for the due execution and performance…" Both Articles 42 of the 1978 Constitution and Article 33A of the 19th Amendment also similarly state: "The President shall be responsible to Parliament for the due exercise and performance…"

The Supreme Court conveying its opinion on the 19th Amendment stated:

"In fact, Mr. Sumanthiran contended that Article 42 is identical to the provision in the 1st Republican Constitution of 1972, which stated in Article 91 that ‘ the President shall be responsible to the National State Assembly for the due execution and performance of the powers and functions of his office under the Constitution…" "Thus the position of the President vis-à-vis the legislature, in which the President is responsible to the legislature, was introduced by the 1978 Constitution." (S.D. No. 04/2015).

While the proposition that "the President is responsible to the legislature" is appropriate within the framework a Parliamentary system, it is constitutionally flawed to incorporate such a proposition within a Presidential system the foundation of which is the separation of powers. The reason being that a President under a Parliamentary system (1972 Constitution) was a citizen who is "nominated by the Prime Minister for the Office" (Article 25) and NOT one elected either by Parliament or by the People. Therefore, the only body such a "nominated" President should be responsible to has to be the National State Assembly that is responsible for exercising the sovereignty of the People and as the "the supreme instrument of State power of the Republic", COLLECTIVELY exercises the legislative power of the People, the executive power of the People and the judicial power of the People.

This is in sharp contrast to a President who is directly elected by the People on whom the People have conferred their sovereign executive power as stated in the 1978 Constitution. This power starts with the sovereignty of the People as stated in Article 3 (below) of the 1978 Constitution.

Article 3 states: "In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise".

Article 4 states" "The sovereignty of the People shall be exercised and enjoyed in the following manner:

(a) "the legislative power of the People shall be exercised by Parliament, consisting of elected representatives of the People and by the People at a Referendum"

(b) "the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People"

It is clearly evident from the foregoing that both the 1978 Constitution and the 19th Amendment embody provisions of a Presidential system. Therefore, since powers under such a system are separate and inalienable, a President as the Head of one organ of government responsible for the exercise of executive powers of the People cannot be responsible to another organ of government – the legislature. Consequently, any attempt to blindly incorporate provisions from one to the other without recognizing the context in which each operates, should be unacceptable. Therefore, Article 42 in the 1978 Constitution and Article 33A in the 19th Amendment should be repealed for constitutional correctness.

CABINET of MINISTERS

Article 42(2) of the 19th Amendment states: "The Cabinet of Ministers shall be collectively responsible and answerable to Parliament" and Article 42(3) states: "the President shall be a member of the Cabinet of Ministers and shall be the Head of the Cabinet of Ministers."

If as per Article 4(b) of the 1978 Constitution, the executive power of the People is exercised by the President and the President is NOT required to be "responsible" or "answerable" to anyone other than the People based on the material presented above, how can the Cabinet with the President as its Head be "responsible and answerable to Parliament"?

In the particular context of Sri Lanka the Cabinet is made up of Members of Parliament. They do not sever their connections with Parliament. Consequently, Members of the Cabinet have no direct link with the People in respect of executive functions. They "derive the authority from the President or exercise the Executive power vested in the President as a delegate of the President" (S.D. No. 04/2015) to help and assist the President to fulfil his commitments to the People. Therefore, if the President is not satisfied with the "direction and control of the Government", he is entitled to "at any time change the assignment of subjects and functions and the composition of the Cabinet of Ministers…" (Article 43(3) of the 19th Amendment and Article 44(3) of the 1978 Constitution). This makes the undue recognition given to the Prime Minister regarding the selection of Cabinet Ministers overrated.

The impact of these provisions is that when the President and the majority in Parliament are from the same political party, the Executive and the Legislature are in harmony and the beneficiaries are the People. On the other hand, if the President is from one political party and the majority in Parliament represents a different political party the system could become unworkable to the point of a complete gridlock as it is presently in Sri Lanka. This is no different to a Republican President in the USA having to deal with a Democratic majority in Congress.

Such challenges are an inherent feature of the system. If General Elections are held for the express purpose of forging majorities in Parliament every time there is political misalignment between the President and Parliament the system would be discredited. Therefore, it is imperative that compromises are made by all concerned to make the Presidential system work because of its overall merits and its appropriateness to the contextual particularities of Sri Lanka.

DISSOLUTION of PARLIAMENT

Parliament was dissolved under provisions of Article 33 (2) (c) on November 9, 2018. This action was seen as unconstitutional by some critics, who object to the view that Article 33 (2) (c) is a stand-alone Article, and does not take into consideration related Articles such as revised Article 70(1).

The 19th Amendment repealed the provision for the President to "summon, prorogue and dissolve Parliament" within one year of a General Election unless a request is made by Parliament to the President (Article 70 (1) of the 1978 Constitution) and substituted it with the following: "The President may by Proclamation, "summon, prorogue and dissolve Parliament": Provided that the President shall not dissolve Parliament until the expiration of a period of not less than four years and six months…unless Parliament requests the President to do so by resolution passed by not less than two-thirds…".

This substitution denies the President the discretionary powers he had as Head of State for four and half years and grants Parliament with a two third majority to request the dissolution of Parliament within six months or even less after a General Election. Since this amounts to a "transfer, relinquishment or removal of a power attributed to one organ of government to another organ or body (it) would be inconsistent with Article 3 read with Article 4 of the Constitution" (S.D. No. 04/2018). Furthermore, the opportunity for Parliament to exercise the right to request the dissolution of Parliament could be exploited by political formations to secure majorities in Parliament that are either supportive or otherwise of the political affiliations of the President, thereby exploiting constitutional constraints for political gain. More importantly, restraining the Executive from exercising his discretion to dissolve Parliament for four and a half years even if warranted by reasons of national security requires that provision is made elsewhere for the President to act independent of Parliament to ensure inalienability of the power of the Executive from the rest. Such a safety valve is provided in Article 33 (2) (c); a provision that was not incorporated in the 1978 Constitution and therefore is exclusive to the 19th Amendment. Clearly, Article 33(2) (c) exists because of the repeal of Article 70(1) in the 1978 Constitution.

CONCLUSION

The perception that the 19th Amendment transformed a Presidential system into a Parliamentary system and that the President is responsible to Parliament are two seriously flawed notions. The facts are that the Presidential system as embodied in the 1978 Constitution is very much intact, and since such a system is founded on the separation of powers that are inalienable, the President and the Cabinet cannot be required to be "responsible to Parliament".

The repeal of Article 70(1) in the 1978 Constitution that empowered the President to use his discretion to dissolve Parliament after its first year, and extend it for four and a half years made it necessary to incorporate it under Article 33(2) as 33(2)(c), thereby restoring his discretionary powers to meet exigencies such as break down of government and national security. This provision in the 19th Amendment must be seen as none other than from a constitutional necessity perspective, for the stability of the Sri Lanka State; a necessity that was recognized and granted to a "nominated" President without time limits in the 1972 Constitution.

Whatever the constitutional provisions it is the art of the possible that has to be forged through reasoned compromise by all concerned.