By Rashantha de Alwis-Seneviratne –

Rashantha N. de Alwis-Seneviratne

The Constitution of 1978 seems to be even more important today for the simple reason that the Executive President is supposed to be more powerful than is good for the country. As such, certain constitutional reforms are being proposed by the incumbent interim government in the form of a 19th Amendment, in order to clip his wings. The proposal has been called a ‘Healthy Tonic to the Democracy’ by one and ‘a Cyanide Capsule’ by another. Oscar Wilde would have looked at it and probably said, Oh well –‘’It is neither bad nor good; it depends on how one looks at it’’. It is interesting that the gentleman who thinks the Amendment is a tonic would like the President to have ‘’some executive powers’’ and act ‘’always and only on the advice of the Prime Minister and the Cabinet of Ministers’’. I immediately imagined the President sprawled in his No.8 chair in Parliament – with his head lolling on to a side, looking like he it was he who needed the tonic! I could not help it. The subject, of course is, worthy of the best zoom and wide angle lens but my attempts to analyse it was pre-empted by a legal-eagle friend, who has a far more critical mind than I.

To begin with, from where does the Executive President really derive his power? It was Aristotle who said ‘’There are three elements in each constitution …. First, the deliberative, which discusses everything of common importance; second, the officials and third, the judicial element. This highlights the three elementary functions that are required for the organisation of any state. We know that these functions are commonly known by us as the Executive, the Legislature and the Judiciary and that they are carried out by the Government elected by the people – the three powers of government.

The Legislature is the law-making body which comprises the Parliament. The Legislative function involves the enactment of general rules determining the structure and powers of public authorities and regulating the conduct of citizens and private organisations.

The Executive is all the institutions and persons concerned with the implementation of the laws made by the Legislature. It involves the central and local government and the armed forces; it includes initiating and implementing legislation, maintaining order and security, promoting social and economic welfare, administering public services and conducting the external relations of the state.

The Judiciary is made up mainly of professional judges and their main function is to determine disputed questions of fact and law in accordance with the law laid down by Parliament and expounded by the courts and is exercised mainly in the civil and criminal courts.

A popular view shared by many was that if one or a group of persons, controlled more than one limb of the functions of a Government, the result would inevitably be corruption and an abuse of power. Tyranny and dictatorship would ensue and this, in turn, would mean loss of liberty for the people. The French political philosopher, Montesquieu, in his celebrated work ‘’The Spirit of the Laws’’ (1748), highlighted the need to resist tyranny through the device of fragmenting the administrative power of government. An effective separation requires that the authority of any one sector cannot exceed that of the other two, either alone or in combination. The purpose is to fragment government power with the twin aims of safeguarding liberty and defeating autocracy.

Having said that, Parliamentary democracies such as the United Kingdom, do not have distinct separation of powers. The executive, which often consists of a prime minister and cabinet (“government”), is drawn from the legislature (parliament). This is the principle of responsible government. However, although the legislative and executive branches are connected, in parliamentary systems there is usually an independent judiciary and the government’s role in the parliament does not give them unlimited legislative influence.

In the United Kingdom, the people elect the legislature, which in turn “creates” the executive. As Professor Cheryl Saunders writes, “…the intermixture of institutions [in the UK] is such that it is almost impossible to describe it as a separation of powers’. However, the Independence of the Judiciary in the UK was established through case law and Statute and further strengthened with the advent of the Supreme Court of the United Kingdom in 2009, whereas there is more interdependence between the Legislature and the Executive and a fusion of such powers. Within the concept of shared or fusion of powers, a network of checks and balances inevitably comes into play because of the internal tensions created by the institutional fragmentation of government. Thus checks and balances tend to induce cooperation between sectors and was designed to prevent the accumulation of too much power into the hands of a single person.

In Sri Lanka, unfortunately, we have a weak Separation of Power and a Judiciary that is by no means independent, in this sense. The Judiciary is handicapped by Art. 4 (c ), which empowers the Parliament and not the courts, by giving it the power to ignore a ruling or decree of the Supreme Court or any other court and to stop proceedings with respect to any particular matter. Further and critically, the Supreme Court has no power of Judicial Review by virtue of Art. 80 (3 ). This is a gross shortcoming of the Judiciary as it is an important and necessary implement to check the Legislature, by having the capacity to review laws after they are enacted. What I would like to see is an empowered Judiciary that would be truly an independent arm of the Government and that the reform of the Judiciary should be a precursor to any reform that is deemed necessary. Montesquieu did specify that “The independence of the judiciary has to be real, and not apparent merely.’’

However, it is the ‘pruning’ of the President’s powers that has got the citizenry all excited, thanks be to the Fourth Estate – our good, unbiased press. I am happy, therefore, to now reproduce my friend’s analysis of the changes envisaged by the 19^th Amendment.

‘’The relevant changes are those proposed in Articles 33A(2) and (3) and are as follows:

“33A(2):  The President shall always, except in the case of the appointment of the Prime Minister or as otherwise required by the Constitution, act on the advice of the Prime Minister or such Minister as has been authorized by the Prime Minister to advise the President with regard to any function assigned to that Minister.

33A(3):  The President may require the Prime Minister or Minister giving advice to him or her under subsection (2) to reconsider such advice, but the President shall act on the advice given to him or her, after such reconsideration.”

How do these changes affect the legislature’s capacity to thwart the executive, either by frustrating the budget, or, under the right circumstances, by impeaching the President?  I’ll take each in turn.

First, Article 33A(2) clearly says that, except in the appointment of the Prime Minster, the President shall always (that is a mandatory requirement that covers all of the President’s actions other than the aforesaid appointment of the PM) act on the advise of the Prime Minster, which means it is the Prime Minister who will actually wield the executive power.

The sole qualification to be the Prime Minister, meanwhile, as set out in the Constitution, is that the individual in question must be a member of Parliament, and, at the time the President appoints him Prime Minster, he must (in the President’s opinion) be the person “most likely to command the confidence of Parliament.” (Article 43(3))

If the Prime Minister is the person “most likely to command the confidence of Parliament” then obviously he is a person capable of getting the majority in Parliament to support his proposals, or reciprocally, his proposals already reflect the consensus of the majority in Parliament.  In the circumstances, any budget the Prime Minister submits to Parliament—or, to be more precise, hands out to the President and advises him to submit to Parliament—will be approved.

Meanwhile, if the Prime Minister cobbles together a “unity government,” which means even the semblance of a principled Opposition in Parliament is removed, there is absolutely no question any budget submitted by the Prime Minster will be automatically approved.  So, there goes the legislature’s ability to thwart the executive by frustrating the budget.

I’ll turn now to impeachment.  It should be noted that, Article 33A(2), which effectively transfers all executive power to the Prime Minister, is silent on how the Prime Minister can be removed, if such a thing were to become necessary.

Article 47 of the present Constitution sets out three clear ways that the Prime Minister, or for that matter any Cabinet Minister, can be removed:  one, by writing under the hand of the President; two, by the Prime Minister (or Cabinet Minister) resigning of their own accord; and three, by the Prime Minister (or Cabinet Minister) ceasing to be a Member of Parliament.  Note that, as per the first of the above methods, the President, at his pleasure, can remove the Prime Minister, or any other Cabinet Minister.

To return to the proposed Article 33A(2), it clearly says that, except for the appointment of the Prime Minister, the President shall always follow the advise of Prime Minister in all his (the President’s) actions.  This would obviously include the removal of the Prime Minster, or any Cabinet Minister.  What does this mean?  It means only one thing, the Prime Minister, along with members of the Cabinet, who will be running the Government, cannot be removed, no matter what they do, for the duration of Parliament.

To summarize, then, under the proposed 19th Amendment, the executive power is absorbed into the legislature.  Meanwhile, an executive branch is created, more or less within the legislature itself, comprising members of the legislature, who cannot be impeached on any ground whatsoever, and who have a free hand to run the government in any way they want, for the duration of Parliament. 

In the circumstances, the only safeguard for the people is the expectation, and perhaps the hope, that the persons elected to the legislature are bodhisattvas—that is to say, their personal morality, sense of decency and decorum are sufficient to prevent them from doing wrong.  If the elected leaders turn out not to be bodhisattvas, but villains, the people are well and truly finished, at least until the next election.

To put the above system in a nutshell, it takes the executive with near-dictatorial powers provided for in the present Constitution, and creates an office of a Prime Minister (and a Cabinet) with absolute powers.  It is difficult to imagine that any reasonable person would consider that the aforesaid arrangement can be salutary to the republic.  As is well known, “Power corrupts, and absolute power corrupts absolutely.”  Hence, for this reason also, the proposed amendment must be rejected. ‘’

Montesquieu must surely be wondering what hit him on his skull. Moving the weight from left to right in the weighing scale of the Lady of Justice, to empower the Legislature and incapacitate the Executive Presidency within a Presidential system of government, cannot be called a balancing act nor a proper reform, for that matter. Under the circumstances, the need of the moment is to set up the mechanism for an independent Judiciary with provision for Judicial Review. The Super Prime Minister can wait.