I have always been for the total abolition of the executive presidency. In the present circumstances, I cannot expect total abolition but I will continue to fight for that, says Dr. Jayampathy Wickramaratne.

Dr. Jayampathy Wickramaratne PC

Dr. Jayampathy Wickramaratne, President’s Counsel and member of the Government’s constitution drafting team told Colombo Telegraph that the Court’s decision permits total abolition without a referendum.

“The only requirement is that the President must be the head of the executive and the ultimate ‘act or decision’ of his executive functions must be retained by him. I wish to emphasize the use of the word ‘or’ in the phrase ‘act or decision’. Thus, it is enough if the final act is that of the President even if the decision is not his. It is on this basis that the Court allowed the provision that requires the President to act on the advice of the PM in appointing Ministers. Also, the independent Commissions are appointed by the President on the recommendation of the Constitutional Council. No referendum is necessary although the President has to act on advice or recommendation. I am not against the President being the head of the executive. In fact, even under the 1972 Constitution, the President was the head of the executive but had to act on the advice of the PM.” he said.

Colombo Telegraph interviewed Dr. Jayampathy Wickramaratne, President’s Counsel and member of the Government’s constitution drafting team, on the 19th Amendment to the Constitution and the determination of the Supreme Court. The following are some excerpts;

What is your response to the Supreme Court’s determination on the 19th Amendment?

The most important aspect of the determination is that the Court held that every inconsistency with Article 4 of the Constitution does not necessarily trigger off a referendum. Article 3 states that ‘sovereignty is in the people and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise.” Article 4 goes into detail and if I may quote the part relevant to our discussion, Art. 4 (b) says ‘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.’ Article 83 gives a list of provisions and states that any amendment that is inconsistent with those provisions will require a referendum. Article 3 is in that list but not Article 4. In fact, Article 4 was in the list when the 1978 Constitution Bill was presented to the National State Assembly but the reference to Article 4 was deleted at the committee stage.

In the 13th Amendment case, Chief Justice Sharavananda held for the majority of judges that not every inconsistency with Article 4 would violate Article 3 and thereby require a referendum. He said that Article 3 would be violated only if there is a ‘prejudicial impact’ on the sovereignty of the People. However, in the 19th Amendment case of 2002, the Sarath Silva Court went on the basis that Article 4 must be read with Article 3 and that created the impression that every violation of Article 4 would attract a referendum.

But then what about the SC decision in the 17th Amendment? Didn’t the same Sarath Silva Court say that no referendum was required?

You are correct. In the 17th Amendment case, the Court said that making the President’s power of making appointments to certain offices and Commissions subject to the approval or recommendation of the Constitutional Council will not per se erode the powers of the President. But in the 19^th Amendment case the Court took a more restrictive view. But it did not refer to the 13th Amendment decision which was a decision of a full bench.

In the 19th Amendment case of 2002, the Court also said that executive power should not be identified with the President and personalized but should be identified at all times with the power of the People. But it nevertheless emphasized that Articles 3 and 4 should be read together and implied that any inconsistency with Article 4 would attract a referendum.

What did the present Court say?

The Court did not refer to CJ Sharvananda’s ruling but used the same phrase – “prejudicial impact”. It made it very clear that ‘not all violations of Article 4 will necessarily result in a violation of Article 3.’ This is very important.

What are the other important aspects of the decision?

The Court rejected the argument that diminishing the discretionary authority of the President to make decisions concerning executive governance would violate Article 3 and thereby require a referendum. The Court held that the Constitution did not intend the President to function as an unfettered repository of executive power unconstrained by the other organs of government. The President’s responsibility to Parliament for the exercise of executive power was established. The essence of the decision is that as long as the ultimate ‘act or decision’ of his executive functions is retained by the President, sovereignty is unaffected and no referendum is necessary.

Let us take an example. The Bill says in proposed Article 43 (2) that the President shall appoint Ministers on the advice of the Prime Minister. But Article 43 (3) permits the PM to change the subjects and functions of Ministers without reference to the President. The Supreme Court held that 43 (3) requires a referendum but not 43 (2). Now, I consider this to be very important. What the Court has held is that as long as the ultimate act is by the President, the requirement that he has to act on the advice of the PM does not attract a referendum.

Another important issue is the power of the President to dissolve Parliament. Under the present Constitution, the President can dissolve Parliament at any time; if the previous Parliament had been dissolved prematurely, the President can dissolve only after one year. The 19th Amendment Bill of 2002 provided that Parliament cannot be dissolved for one year irrespective of whether the previous Parliament completed its 6-year term or not. If the majority of MPs do not belong to the President’s political party, he can dissolve Parliament after one year only if so requested by a 2/3 majority of MPs. The Court struck this provision down and held that a referendum will not be necessary if it is provided that the President cannot dissolve Parliament for 3 years, being half of the full term.

In the present Bill, the term of Parliament is reduced to five years. The President cannot dissolve Parliament for four and a half years unless Parliament requests dissolution by a 2/3 majority. The Supreme Court did not hold that this substantial restriction of the President’s discretionary power of dissolution required a referendum.

Are you happy with the Court’s decision?

Overall, yes. I have always been for the total abolition of the executive presidency. In the present circumstances, I cannot expect total abolition but I will continue to fight for that. The Court’s decision permits total abolition without a referendum. The only requirement is that the President must be the head of the executive and the ultimate ‘act or decision’ of his executive functions must be retained by him. I wish to emphasize the use of the word ‘or’ in the phrase ‘act or decision’. Thus, it is enough if the final act is that of the President even if the decision is not his. It is on this basis that the Court allowed the provision that requires the President to act on the advice of the PM in appointing Ministers. Also, the independent Commissions are appointed by the President on the recommendation of the Constitutional Council. No referendum is necessary although the President has to act on advice or recommendation. I am not against the President being the head of the executive. In fact, even under the 1972 Constitution, the President was the head of the executive but had to act on the advice of the PM.

Sinhala nationalists seem to against abolishing the executive presidency totally?

Not quite. Hardline nationalists supporting Rajapaksa are either for retaining the executive presidency as it is or for making minimal changes. Some nationalists within the present Government are for pruning down powers. Amongst them too, there are differences. For example, the Pivithuru Hetak headed by Ven. Athuraliye Ratana proposed its own 19^th Amendment. In Article 44 (1) (b), it proposes that the PM should be both the Head of Government and Head of Cabinet.

Are you satisfied with the 19th Amendment Bill?

When we fought the Presidential elections, we agreed on certain restraints. Not all parties that came together to fight the Rajapaksa regime were for total abolition. There was also the issue of whether the country can afford three national elections in one year- a Presidential election, a Parliamentary election and a referendum. So, we agreed that we will do only what could be done without a referendum. We also agreed that the method of election of the President will not be changed in this round of constitutional reform as that may have necessitated a referendum.

I would have been happier with a Bill that completely did away with the executive presidency completely and provided for the President to be elected by an electoral college such as one consisting of members of Parliament, Provincial Councillors with less weighted votes and local authority heads with even less weighted votes. But we are constrained by what we agreed to in the circumstances. When a Constitution is made, different forces will pull in different directions and some forces will be stronger than others. The final product reflects the resultant of the various forces involved.

Constitutional reform does not end with the 19th Amendment. I and like-minded people will continue to fight for the complete abolition of the executive presidency. The SC judgment clears the way for that to be achieved without a referendum.