16 May, 2022

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Executive Presidency Can Be Abolished Without A Referendum

By Jayampathy Wickramaratne

Dr Jayampathy Wickramaratne PC

The abolition of the ‘Executive Presidency’ is again an issue high in the constitutional reform agenda after the abject failure of the Gotabaya Rajapaksa Presidency. Whether it could be done by a two-thirds majority in Parliament, without the approval of the People at a referendum is bound to be raised. In other words, is the Presidential form of government entrenched? It has been generally taken for granted, albeit without serious discussion, that the abolition of the Presidential form of government would require a referendum. The writer is among a minority of legal personnel who take the opposite view.

Entrenched constitutional provisions

Article 83 of the Constitution lists the entrenched provisions. A Bill for the amendment or for the repeal and replacement of or which is inconsistent with Articles 1 (The State), 2 (Unitary State), 3 (Sovereignty of the People), 6 (National Flag), 7 (National Anthem), 8 (National Day), 9 (Buddhism), 10 (Freedom of thought, conscience and religion), 11 (Freedom from torture) and Article 83 itself would require a referendum. A Bill for the amendment or for the repeal and replacement of or which is inconsistent with the provisions of paragraph (2) of Article 30 or of paragraph (2) of Article 62 which would extend the term of office of the President, or the duration of Parliament, as the case may be, to over six years would also require a referendum.

Article 3 reads: “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 (Exercise of Sovereignty) goes into detail. Article 4 (b), which is relevant to this discussion, reads: “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.” The original 1978 Constitution Bill provided for the entrenchment of Article 4 as well. However, Article 4 was deleted from the list of entrenched provisions in Article 83 at the Committee Stage.

In Re Thirteenth Amendment to the Constitution, a decision of a Full Bench of the Supreme Court, Sharvananda CJ referred to the legislative history of Article 4 and held that the omission of Article 4 from the list of entrenched provisions must be presumed to have been deliberate. The learned Chief Justice stated: “In our view, Article 4 sets out the agencies or instruments for the exercise of the sovereignty of the People, referred to in the entrenched Article 3. It is always open to change the agency or instrument by amending Article 4, provided such amendment has no prejudicial impact on the sovereignty of the People. (…) In our view, Article 4 is not independently entrenched but can be amended by a two-third majority, since it is only, complementary to Article 3, provided such amendment does not impinge on Article 3. So long as the sovereignty of the People is preserved as required by Article 3, the precise manner of the exercise of the sovereignty and the institutions for such exercise are not fundamental. Article 4 does not define or demarcate the sovereignty of the People. It merely provides one form and manner of exercise of that sovereignty. A change in the institution for the exercise of legislative or executive power incidental to that sovereignty cannot ipso facto impinge on that sovereignty.”

Executive Presidency not entrenched

Article 30 (The President of the Republic) originally read as follows: “(1) There shall be a President of the Republic of Sri Lanka, who is the Head of the State, the Head of the Executive and of the Government, and the Commander-in-Chief of the Armed Forces. (2) The President of the Republic shall be elected by the People, and shall hold office for a term of six years.” By the Nineteenth Amendment, the President’s term of office was reduced to five years.

That the President should be not only the head of the state and head of the executive but also the head of the government is what makes the form of government in Sri Lanka “presidential”. Under the 1972 Constitution, the President was the head of the state and head of the executive but not the head of government. Also, he was required to act on the advice of the Prime Minister. Thus, it is Article 30(1) that made the difference when Sri Lanka adopted the 1978 Constitution.

However, Article 30(1) is not entrenched. It is not in the list of provisions in Article 83 that triggers off a referendum. This omission, too, must be considered to be deliberate. This is fortified by the fact that Article 4 is not an entrenched provision.

The writer submits that the determination of the Supreme Court on the Nineteenth Amendment Bill 2015 leaves the door open to abolish the executive nature of the Presidency without a referendum. According to the Court, an essential requirement for the avoidance of a referendum is that the President continues to be the head of the executive and the ultimate ‘act or decision’ of his executive functions must be retained by him. The use of the word ‘or’ in the phrase ‘act or decision’ used by the Courts needs to be emphasized. Thus, it suffices if the final act is that of the President, even if the decision is not his. Accordingly, the Court did not find the proposed provision that the President shall appoint Ministers and Deputy Ministers on the advice of the Prime Minister required a referendum. The act of appointing Ministers continues to be that of the President, although the decision is that of the Prime Minister.

President not the sole repository of executive power

That the President need not be the sole repository of executive power has been emphasized by a seven-member Bench in Re the Nineteenth Amendment to the Constitution 2002 as well. Executive power should not be identified with the President and personalized and should be identified at all times as the power of the People, the Court held.

Under Article 42, the Cabinet of Ministers is charged with the direction and control of the government of the Republic and is collectively responsible and answerable to Parliament. The President shall be a member of the Cabinet of Ministers and shall be the Head of the Cabinet of Ministers. In Re Nineteenth Amendment to the Constitution 2015, the Supreme Court stated that Article 42 establishes conclusively that the President is not the sole repository of executive power under the Constitution.

Direct election of President also not entrenched

It is not only Article 30(1) that was left out of the list of entrenched provisions. The provision contained in Article 30(2) that “[t]he President of the Republic shall be elected by the People” was also left out of the list of entrenched provisions in Article 83. What is most important is that only the second part of Article 30(2), that “[the President] shall hold office for a term of six years” was entrenched to the extent that a Bill for the extension of the term of the President to over six years would require a referendum.

It is submitted that the election of a President by Parliament does not infringe on the sovereignty of the People. In fact, where the office of the President becomes vacant, the present Constitution provides in Article 40 (1) (a) that Parliament shall elect as President one of its Members who is qualified to be elected to the office of President. When President Premadasa was assassinated, D. B. Wijetunge was elected President by Parliament.

Conclusion

The conscious decision of the makers of the 1978 Constitution not to entrench Article 4, Article 30 (1) and the provision in Article 30 (2) that the President shall be elected by the People permits Parliament to abolish the executive nature of the Presidency without a referendum, provided that it is done without offending the sovereignty of the People.

It is submitted that a constitutional amendment that provides the following at a minimum would satisfy the requirement that sovereignty is not impinged upon:

a) the President shall be the Head of State, Head of the Executive, and Commander-in-Chief of the armed forces;

b) Parliament shall be elected on the basis of the universal franchise;

c) free and fair elections shall be ensured by establishing an independent Election Commission, appointed on the recommendation of the Constitutional Council;

d) the Prime Minister, Ministers, and Deputy Ministers shall all be Members of Parliament;

e) the President shall be elected by Parliament;

f) the President shall always, except as otherwise provided by the Constitution, act on the advice of the Prime Minister;

g) all State action shall be reviewable by courts;

h) the independence of the judiciary shall be ensured; and

i) the Constitutional Council abolished by the Twentieth Amendment shall be re-established and further strengthened so that there would be a national consensus on appointments to high positions and independent Commissions under the Parliamentary form of government envisaged.

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Latest comments

  • 2
    8

    An assessment has been made in the article above. A similar assessment was made following the Easter bombings. However, all of these assessments leave out one crucial aspect. An example will illustrate it. The paddock in the middle of a once prosperous village is flooded. Even though the water recedes, the village is mysteriously flooded again even though there is no significant rainfall. At some point, the cycle was broken. As a flood receded, a horse that had been hidden in a barn bolted out and began to roam free in the paddock. Someone intentionally flooded the village in order to hide this horse.

    • 0
      0

      Jambu.
      How did the Horse survive when it was flooded?
      How do you know whether the horse was frightened of the flooding and ran away to safety when it flooded?
      Should have been in a safe area without flooding. Why and who caused this neglect??
      No answers as none takes responsibility for anything bad happens??
      Probably, that also happens, because the Horse has ‘bolted’???

  • 2
    8

    After the British left, the island was largely engulfed in violence on purpose. This served to conceal a truth. As the horse bolts, the truth is revealed. Despite that, the intention to keep the horse hidden remains high on the agenda. It represents a deep dilemma for many establishments. It is not a life or death choice for these institutions. Instead of facing those dilemmas, the inhabitants of the island are forced to make the decision between life and death.

  • 1
    7

    This island’s authentic history is symbolized by the horse. The island is primarily known for Gothama Buddha and Buddhism. Long-term security of the island depends on revealing this history. Whenever the horse is free, the locals from nearby villages visit and ensure its safety. This long forgotten horse needs to be rediscovered by educated islanders. In addition to many other aspects of security it represents economic security. The Buddhist Circuit has be potential to attrack 10 million foreign tourists bringing in $27 billion in revenue. Read below for more.

  • 1
    7

    Promoting the Buddhist Circuit and trails in Uttar Pradesh, Bihar, Gujarat and Madhya Pradesh is critical to the ministry’s target of doubling foreign tourist arrivals and revenue.. More than 10 million foreign tourists visited India in 2017, bringing in $27 billion in revenue. Read -> https://bit.ly/3qz995B

  • 8
    1

    “Executive Presidency Can Be Abolished Without A Referendum”
    WHY??

    Let the idiots that voted him enjoy the term that he got.

    • 0
      2

      B
      Should not the the wise folk who enabled the game in 1977 also join the fun?

  • 6
    1

    Yes and the island renamed Ceyloan.

    • 4
      1

      And all of Ceyloanee

      • 5
        1

        New national anthem.
        Ceyloan Ceyloan more loan
        we live on loan
        Ceyloan Ceyloan more loan

        • 0
          4

          Piglet
          You forget a mighty big country that is more into debt annually.
          How will you rename it?

          • 0
            1

            Unlike that wild fox, not everybody like to call the unreachable grapes as sour. Take another birth as a Sinhala Modaya, your dear brothers, and dream to have big mansion in LA, America and live a lavish life. When the donkey turn into an ant, we can rename it too as Langkang. American dollar is still appreciating against all main currencies. Especially the Langkang beggars are starving for every dollar they can get.

      • 0
        1

        Helayans, a country who are living called Heladiva (Aryans)

    • 2
      0

      And what do you want to call the majority population?

      My suggestion: “Sin-Loonies”

  • 1
    4

    Is Sajith agreeable?

    Soma

    • 1
      1

      Somu,
      Valaiththodam Jr is very happy that Sinhala Buddhists are starving. He contends that the batter fermentation is always good for the Aappa. He has already declared that he will come with much more than 2/3 and will do all what he wants. Dr. Jeyampath’s article is only reinforcing his idea of becoming the president of Langkang once in history. So, he will wait for another 3 years. Sinhala Buddhist Modayas are only opposition party voters. They, even in Dudley’s government, voted to Siri Ma O and ate the Manjoca that came from the Moon. Come on Mr. Communist Jayampathy, Dudley was not a monarchy president, for he was removed like that. Jayampathy was the chief architect of illusionary 19A. No one in that team understood anything about that amendment until the New King started behaving like the elephant in the China shop. That brought the Royal rowdies to power with the unpreceded Sinhala Buddhists’ support. CJ Sri Pavan, the colleague of Dr.Jayampathy, edited the 19A to ensure that it will not affect the president’s authority, with the mask of it may require the referendum. Probably Dr. Jeyamthy might have been smoking the Royals’ hashish that time, so he failed to contest CJ Sri Pavan. Now Jeyampathy is fooling the Sinhala Buddhists that the President can be abolished in whole but cannot be en-shinked or deflated to a lesser authority Monache.

    • 1
      1

      This essay is ja jobless job. In Langkang no one wants to know what the “law” is. Modayas wants to know where the politicians are delivering the next round of Arrack & Biryani. Sinhala Intellectuals’ (Viyathmaha) articles no longer have any effect (appeal or charm or alluring) on communities, especially on the CT’s. If you understand CT commentators, they read these mainly for their desperation for the verses & lyrics to sing (Opari) while they are chest beating. These crowds see Dr. Jeyampathy, Tisaranee Gunasekara like the ones as their Philanthropists or the poets Milton & Kampan, who delivers ever drying alms. The others, including Sadampi, Eagle Eye and you, are feeling loosening the value of the note bundle given to them, so they are suffering from weariness. They cut short or not all replying to these articles. Unobstructedly, Valaiththodam is coming as next King. So, inventing a convoluted technique to abolish the presidency will only bring something even worse than that. Whether that saying is right or no, but that is the Langkang history from 1948. Unless a French revolution guided by educated Sinhalese and rebelled by the masses in Langkang, the UNP-SLFP-UNP-SLFP-UNP-SLFP cycle is not eliminated. Don’t waste another 40 years. Forget about abolishing the Presidency but think about abolishing UNP-SLFP cycles which are so much sure in Langkang like summer -winter seasons.

  • 4
    1

    Whether you like Rajapakse or not is another matter.

    At presidential elections we see a very high voter turn out.You cannot say it is an unpopular office, although invariably abused by our leaders who themselves not wholesome personalities. On the whole Sri Lankans have shown that they are not good leadership material tending towards big egos, corruption, preservation of position at any cost and family orientation.

    This dim idea of JR Jayawardena has done untold damage to the country psyche.

    But now that it is in the constitution, it must be done away with peoples participation, at a referendum.

    The kind of parliamentary coup suggested amounts to trickery. This kind of amoral attitude cannot be condoned. The end does not justify the means. The people must be included in the process.

    • 0
      0

      Deepthi,
      1. This dim idea of JR Jayawardene has done untold damage to the country psyche.
      2. But now that it is in the constitution, it must be done away with people’s participation, at a referendum.
      3. The kind of parliamentary coup suggested amounts to trickery.
      4. The people must be included in the process.
      Response
      1. Agree that it was a ‘dim idea’, JRJ dream of 30+ years! Materialised, because the ‘people’ (meaning voters) were mad giving 4/5 majority!! Due to consuming too much Tapioca only!
      2. Yes, it is in the constitution and value it as much and the processes detailed in it by the persons (Peoples representatives – MP’s) incorporating it in 1978. There are some entrenched clauses, requiring a peoples’ consent at Referendum and others do not require such process, decided by the then MP’s when formulating the new 1978 Constitution and also approved by the, then 3rd pillar of Democracy – the Judiciary. No Trickery!!
      3. This is no PARLIAMENTARY COUP AT ALL. IT IS THE NORMAL PARLIAMENTARY LEGISLATIVE PROCEDURE!!!
      4. The ‘PEOPLE’, are included/fully enabled, thru’ 2/3rd Majority of members present and voting in parliament as the ‘PEOPLE’ representatives elected by ‘PEOPLE’ (MP’s).
      (Contd.)

    • 0
      0

      (Part II)
      5. If as you say, this is “parliamentary coup suggesting, amounts to trickery”, could you please enlighten us mere mortal devoid of such intelligence which you appear to emanate and propound on this issue how and why it is so??
      6. If as you claim, IF it could be proved that 2/3rd majority, w/o referendum is coup, then, I wished to add the following too to that category:
      a. Passing of the Indian citizenship act 1950 is coup and not valid (section 29b and c)
      b. Passing of the Sinhala Only act 1956 is coup and not valid (section 29b and c)
      c. Sirima – Shastri pact and resultant act 1964 is coup and not valid (section 29b and c)
      d. The abolition of Senate – of 1971 was a coup and not valid (section 29b and c)
      e. The 1970 republican constitution was a coup and not valid (section 29b and c)
      Section 29 an entrenched clause in the Soulbury constitution, could not be repealed by Ceylon parliament as they did w/o the consent of the minorities.
      That’s why, had Constitutional Council.
      None tested legality as Judiciary was not “considered Independent and Government biased”, time of this coup

    • 0
      0

      (Part!!!)
      Abolished “Privy Council” as court of final appeal! SL Court of Appeal succeeded!
      If your claim, that “No People consultation” at referendum amounts, “coup and Political Trickery”, then must throw those “tricked ones” out!! Is it not?
      Then reverse all of them??? To correct the injustice???
      Then all problems would be resolved with ease.
      Good part is we could reduce the SL Parliament
      A. to 105 members only – Intelligent Ladies and Gentlemen, Sri Lankans would be proud of being their representatives, instead of the dubious 225 members of hybrid eating habits (Rice and Curry or Grass and whatever), who are devouring the national exchequer resources as never before, and
      B. Bi-Cameral institution with a Senate or Review Chamber (whatever you want to call it) of 29 intelligent Ladies and Gentlemen:
      I. 22 elected – 1 per district, and
      II. 4 elected by MP’s to represent Sinhala, Tamil, Muslim and Burgher communities
      III. 3 nominated, 1 each President, PM, and Opposition Leader
      IV. Keeps Legislative process reviewed and in check!!! Important elements not missed out.
      C. PEOPLE’s representative not exceeding 134, so enormous amount is saved!
      D. Almost 90 vehicles, 900 million rupees!!
      AGREED
      “DO IT PROPERLY; NO HANKY PANKY”

    • 0
      0

      Deepthi, “……………This dim idea of JR Jayawardena has done untold damage to the country psyche.But now that it is in the constitution, it must be done away with peoples participation, at a referendum…..”

      That is what the Yahapalanaya did! Clipping powers of the Presidency, more powers given to the Parliament and the PM, establishing independent commissions…… They all were made possible through 19A.That is what people gave power to Yahapalanaya in 2015 for..!!
      And they did it.
      But you always hammer Yahapalanaya…and now talk about your own version of referendum!
      How hypocritical!!

  • 4
    0

    Does this country need a government or President?

    • 1
      2

      A
      Does it have a government?

    • 0
      0

      Ajith,
      My take is that, we need them entertainment facility to keep the 225 grass eating variety in good form to perform. Otherwise they get distracted!!

  • 0
    1

    My question is why didn’t you do it when you guys were in power? Only now you thought of it? This too shows that you are not an honest person.

  • 0
    0

    Is this the “ISSUE” – (Change of Presidency the ) the MAIN and the most IMPORTANT and URGENT to be sorted out for Sri Lanka at the moment?

    I see it as a “Secretively Hatched Plot” to distract the attention of the People from the DISASTROUS moments of day-to-day life that they and their families are COMPELLED to face due to economic and social problems. The scarcity of essential food items, soaring prices, and the social unrest ending with deaths and suicides are the main issues that need immediate attention of all Politicians and Law Makers. Yet, these “HAWKISH” political vagabonds come up with “FAKE” attempts to make “Constitutional Changes” as “PANACEA” for all the problems. The PEOPLE must not lose time to identify these “Hawks” who try to fish in troubled waters and give a kick on their asses and send them to oblivion. These types of PROPOSITIONS at this time of a NATIONAL CALAMITY must be thrown to DUST BINS leave aside being even discussed.

  • 1
    0

    ‘Mulu Ratama Hari Magata’

    Ganga walin patan ganimu.

    “My question is why didn’t you do it when you guys were in power?”
    If your referring to the govt of SORRYSENA, Sobitha Thera picked someone that was acceptable to the racist Sinhala Buddhist population.
    The parliament ruling party was split from day one. One supporting sorrysena and the other worse. Giving Wijadasa the justice portfolio made sure that the Rajapaksa’s will rule again. Wijadasa is responsible for todays problems as much as Mihanda/Gota.

    • 0
      0

      Ven Sobhitha wanted Karu J as the candidate. But Ranil opposed and worked in connivance with CBK to bring in Gamarala.

    • 0
      0

      Bert, Wijedasa R was just one of the leading rotten worms that ate the core pith and heartwood of the yahapalanaya tree. Looks like karma has come back to WR now.

  • 1
    0

    why did JRJ start the presidency.It was because he was a fuckn megelomaniac who referred to himself as julius instead of junios.He is the only president in the world who had undated letters of resignation of his team members.So that is how he viewed his team.So much for his faith in his own team.He was not a team player.We all know in cricket not only the captain but all the team must do well and work together to win a game.Same for politics if you want to win and beat other countries.
    Why are we contnuing with this megelomaniac’s presidency.Is it the lack of powers given to a leader that made us become the best in asia at the time of independence to now one of the worst in asia?We need a good prime minister who can mould a great team like what arjuna did in cricket.
    Get rid of the presidency.Have a good and decent prime minister.Do not give too much power to the prime minister too by having elections on a first past the post system as was done in giving too much power to sirimavo and JRJ and we know the consequences of that.Have members of parliament only elected on proportional system where every vote counts.

    • 0
      0

      cont
      Make it difficult for the politicians to elect themselves.Also bring in a rule that all MPs must have passed their ord levels with the exception of anyone who has represented the country in sport or arts because they would not have had the time to do their studies.However they are achievers in their field and have potential.At the moment we have 98 out of the 225 not passed ord levels.Is this a good team?
      The team is what matters not only the leader.What would arjuna a good leader hve achieved in 1996 if he did not have aravinda who hit 80 in the final against australia and took 4 wickets too.Would arjuna have managed to come to the final itself if not for sanath,murali,hashan,vass,asanka etc etc?
      Also bring in a rule that all MPs must have passed their ord levels with the exception of anyone who has represented the country in sport or arts because they would not have had the time to do their studies.However they are achievers in their field and have potential.At the moment we have 98 out of the 225 not passed ord levels.Is this a good team?
      The team is what matters not only the leader.What would arjuna a good leader hve achieved in 1996 if he did not have aravinda who hit 80 in the final against australia and took 4 wickets too.

  • 0
    0

    Jayampathy,

    A single issue that brought most politicians under one umbrella just before the 2015 Presidential Election was “abolition of Executive Presidency”.

    Yahapalanaya government had soon after the 2015 Presidential Election launched a 100 days programme to take immediate actions before going for Parliamentary Elections.

    When 19th Amendment was brought about with almost unanimous support of parliamentarians (including entire Opposition at that time) the excuse given was that abolition of Executive Presidency needs the support of 2/3 majority and also a referendum.

    Care was taken in the 19th amendment not to interfere with any entrenched clauses in the 1978 constitution such as Executive Presidency, Unitary state, Status of Buddhism, ..because it was claimed that such action will result in forcing for a referendum.

    It was agreed by almost everyone that matters that victory at that stage in a referendum was an uncertain proposition and that referendum should be avoided at any cost.

    Nihal Jayawickrama was the first to point out the possibility of abolishing Executive presidency without referendum in a recent CT article, after the new government assumed office.

    Was a golden opportunity missed in 2015 to abolish Executive presidency by a simple procedure?

    Opportunities used to come seldom and missing opportunities is a criminal offence !.

  • 3
    0

    Mahila, all those wrongs of the past will not be corrected by another wrong.

    I do not think this government which commands a 2/3 , obtained a mandate to do away with the presidency.

    What do you think ?

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