By P. Soma Palan –
I refer to the above titled article by Dr. Dayan Jayatilleka (DJ) in the Sunday Observer of 4th November and wish to respond to the views expressed, therein, by him. I am not a learned expert on Constitution, but a civic minded citizen, who has the capacity to think and discriminate between the truth and the false.
1. Republican Constitution and the Presidency
For DJ, conclusion precedes reason. He is seeking reason to justify his pre-determined conclusion. The pre-conclusion is, the President has overriding autonomy over the other arms of the Constitution. DJ qualifies by saying “relative autonomy of the Presidency”, which itself is a limitation, and an admission of the President’s autonomy, is not absolute. DJ separates (a) National Sovereignty and (b) Supremacy of the Legislature. These two are not distinctly separate, but one and the same thing. National Sovereignty means the Sovereignty of the State, Nation or the Country. Call it whichever way you like. But it amounts to the same. National Sovereignty is not purely a territorial concept. This will lead to the ludicrous result of a territory without people, having sovereignty. There should necessarily be “people” to exercise that territory’s sovereignty. Therefore, there is no confrontation between national sovereignty or peoples sovereignty versus Supremacy of the Legislature. In the ultimate analysis, if “Sovereignty resides in the people” as the Constitution proclaims, then that Sovereignty is expressed by the Legislature ( Parliament). Thus the Legislature is the microcosm of the macro National Sovereignty. Peoples’ Sovereignty is represented in the Legislature by their elected representatives. Thus the People and the Legislature are synonymous. If this is so, Supremacy of the Legislature (Parliament) overrides the Presidency, irrespective of the fact that the latter is directly elected by the people.
2. 19th Amendment
DJ states that “the 19th Amendment is not a new Constitution”. This is common knowledge. Every informed person knows it. It requires no constitutional punditry. An Amendment is an integral part of the Constitution- whether as an addition, deletion, or modification of an Article, Proviso, Section or sub-section of the Constitution. No Article or Proviso by itself, either singularly or severally, can be deemed as the Constitution. The Constitution is a composite whole, including subsequent amendments.
3. Separation of Powers
The Separation of Powers is a cardinal pillar of a Parliamentary form of Government. The three pillars of the Constitution are: (a) Legislature (b) Executive and (c) Judiciary All three arms of the Constitution are co-equal and co-lateral in their autonomy. DJ states that despite the 19th Amendment, the logic of the 1978 Constitution is “a strong and stable Executive free from whims and fancies of the Legislature, and the Executive still remains above and relatively autonomous of the Legislature”. This view is antagonistic to the principle of Separation of Powers- that is, no one arm of the Government can be above or lower than other arm of the Government. If the President is,“above and autonomous of the Legislature”, then why the need for a Cabinet of Ministers, which is a creature of the Legislature? The President cannot act or take decisions unilaterally of his own, like during the historical Monarchies. The President is the creature of the People as much as the Legislature is the creature of the People. The President is part of the Cabinet of Ministers and decisions taken in the Cabinet are not the decisions of the President, it is the collective decisions of the Cabinet and accordingly the decision of the Government. If the President is above and has overriding autonomy over the Cabinet, which is an integral part of the Legislature, as claimed, then, he should be above and have overriding power over the Judiciary also. This is not so, as it would be ridiculous. The very principle of the Separation of Powers is to ensure checks and balances between the three organs of the Government.
DJ states that “the 1978 Constitution is a Republic, which means the People are Sovereign”. He concedes this fact. Sovereignty is a holistic concept. It is an indivisible whole. The People have only delegated their Sovereignty to the Legislature, Executive and the Judiciary. Therefore, the Legislature is a miniaturized entity, of the Sovereignty, that resides in the People. The Executive, which includes the President, exercises the Peoples’ Sovereignty (Legislature). Delegation of Sovereignty does not mean the alienation of the Sovereignty of the People, by the Legislature. DJ propounds an erroneous notion, when he says that “the President is directly and democratically elected by the people as a whole and in which the Office of President cannot be held by anyone who has failed to obtain a majority of 50.1% of the popular vote”. Further, DJ says “that is why the Presidency is placed decided above the Prime Minister”. The argument that the President is above the Prime Minister is acceptable. But this does not mean the President is above the Legislature. DJ states that “the President is elected by whole people and is, therefore, the more authentic agency of popular Sovereignty.” This implies that, the Legislature, which represents the people, is less authentic agency of popular Sovereignty. It is foolish to compare the Presidential election and the General election, in considering the percentage of the popular vote .These two elections are different in kind and scope. Presidential election is to elect a single individual in country-wide election and the number of candidates contesting would be about 3 or 4.Whereas the General election is to elect 225 M.Ps and at the average of 3 contesting for every electorate, a fair estimate of about 600 contestants will be in the fray. Thus, the popular vote will be split and spread over all these 600 candidates. Therefore for the 225 M.Ps to get a 50% of the popular vote is impossible. The Legislature is composed of not only the Government, but also the Opposition. In spite of this disadvantage, yet the combined popular vote of the legislature would be close to the 51.1% of the Presidential votes. The Sovereignty of the Legislature, comprising 225 MPs, is far more authentic than that of a single individual. It is Supreme than the President.
5. The Executive Arm, the Cabinet
a) Dr. DJ mistakenly identifies the Executive arm of the Constitution with the Presidency. It is not so. The Executive arm of the Constitution is the Cabinet of Ministers, of which he is a member and as an Executive President, he is the Head of the Cabinet. He is analogous to a Managing Director of a Corporate Business organization. President too, may hold one or more Portfolios. DJ says “the function of the Executive is making decisions”. But the President cannot singularly and unilaterally take decisions. Decisions taken are consensual and these are Cabinet decisions.
b) DJ states the” Legislature frames the Laws”. Though Legislators are nominally called “Law Makers”, in reality, they do not frame Laws. Framing of Laws originates in the Executive. The Ministers and Ministries under their purview frame the Draft Laws. These Draft Laws are scrutinized and given legal form and as Enactments by the Attorney General’s Legal Draftsman, who actually frame the Laws. The Legislature only debate and scrutinize the Draft Laws and propose suitable amendments which may be adopted.
DJ states that the “Centre of gravity of the Constitution is the Presidency, not the Prime Minister. One cannot govern as per the Constitution against the President”. Nor can the President govern against the Parliament (Legislature). This is a wrong view. In a democratic Parliamentary form of government, the Centre is the Parliament. That is where the Sovereignty of the People lies and not in the President, unlike in an autocratic State. The Legislature could impeach the President. But a President cannot dismiss or dissolve the Parliament, except, as prescribed, in the Constitution. Nor can the President dismiss the Prime Minister. Only the Parliament can remove a Prime Minister by a No Confidence Motion.
c) DJ states that “no political scientist would confuse the State and the Government. Nor the two could be placed on par,leave alone the Government overrides the State.” This is saying that the State is identified with the President. It is like the French Monarch Louis X1V, declaring that “I am the State”. The State is not the President. He is merely the Head of the State. He is the symbol of the State as much as the National Flag is the symbol of the State. The State is an Impersonal entity. Neither is the Government. The Government is only an Agent of the State. The State can only be identified with its people. The people as a whole, is the State. Hence the people are Sovereign, not the President nor the Government. The Legislature, which represents the people, is Supreme and Sovereign. DJ further states that, “if the Government defies the State, the State intervenes to override the Government”. This is based on the false notion that the State and President are synonymous. The truth is that ,when the Government challenges the President, it is not defying the State, but the person holding State Power in violation of the Constitution. President is only an instrument of the State, and the State is not an instrument of the President. The People are the State. DJ states that the “President is much more crucially, the Minister of Defence and the Commander-in-Chief of the Armed Forces”. It is not mandatory that the President shall be the Minister of Defence and no other. We have had other Government members holding the Portfolio of Minister of Defence. President is the Commander-in-Chief of the Armed Forces, symbolically, by virtue of his position, as the Head of the State and nothing more.