13 November, 2018

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The Illusory Executive Presidency

By Nihal Jayawickrama

Dr. Nihal Jayawickrama

The near hysterical response to the local election results, by parliamentarians and the media alike, demonstrated an unfortunate lack of understanding of the Constitution of our country. This was evident especially regarding the powers of the President. The office of President today is not that which was established by President Jayewardene in 1978. Nor are the powers of that office the same or even similar. The 19th Amendment stripped the Presidency of nearly all the executive powers which President Jayewardene invested himself with. The President today is, in many respects, a constitutional Head of State who is required to act on the advice of the Prime Minister, similar to the Presidency under the 1972 Constitution.

Appointment of the Prime Minister

This is the most important function of a Head of State, be it a Queen or President. In the United Kingdom, its exercise is regulated by convention. In Sri Lanka, Article 43 of the Constitution requires the President to appoint as Prime Minister “the Member of Parliament who in his opinion “is most likely to command the confidence of Parliament”. No petition with signatures, or even a vote of confidence in Parliament, is required. The 1972 Constitution contained an identical provision.

Removal of the Prime Minister

The 1978 Constitution originally stated that the Prime Minister may be removed from office “by a writing under the hand of the President”. The 19th Amendment deleted that provision. Instead, it provided that the Prime Minister and the Cabinet of Ministers cease to hold office by operation of law only if Parliament (i) rejects the Statement of Government Policy; (ii) rejects the Appropriation Bill; or (iii) passes a vote of no-confidence in the Government. (A motion of no-confidence in the Government is moved by the Leader of the Opposition and is different from a motion of no-confidence in the Prime Minister which, in parliamentary practice, is a private member’s bill of low priority). It would appear therefore that, once appointed, the Prime Minister may not be removed from his office by the President. An issue may arise due to the applicability of the Interpretation Ordinance to the 1978 Constitution. Section 14 of that Ordinance states that, in any law, for the purpose of conferring the power to dismiss, it is sufficient to confer the power to appoint. Whether Parliament overlooked the Interpretation Ordinance in the tumultuous circumstances in which the 19th Amendment was debated and passed, is not clear. It may also be argued that the Constitution overrides section 14. In any event, if the President were to dismiss the Prime Minister, he may do so only if he is of the opinion that the Prime Minister “most likely” does not command the confidence of Parliament, and that some other Member of Parliament does.  In such event, that other person should immediately be appointed Prime Minister. 

Establishing Ministries

The President “determines the number of Ministers of the Cabinet of Ministers and the Ministries and the assignment of subjects and functions to such Ministers” (Article 43). In performing this task, he is required to act “in consultation with the Prime Minister, where he considers such consultation to be necessary”. In regard to the number of Ministers, the President is constrained by the constitutional provision (Article 46) that Ministers of the Cabinet of Ministers shall not exceed thirty; and Ministers who are not members of the Cabinet of Ministers and Deputy Ministers shall not, in the aggregate, exceed forty”. Parliament may increase these numbers in a situation where “the recognized political party which obtains the highest number of seats in Parliament forms a National Government”. 

A coalition government is not a National Government. The expression “National Government” was defined by the 19th Amendment to mean “a Government formed by the recognized political party which obtains the highest number of seats in Parliament together with the other recognized political parties”. Therefore, a National Government exists only when all the other recognized political parties represented in Parliament are included in it, and not merely some. An interesting question that arises is whether all the recognized political parties represented in Parliament are indeed included in the current so-called National Government. If not, did the President act in violation of the Constitution when he created more than thirty Ministries?

Determining the Ministries and the assignment of subjects and functions to Ministries is the other responsibility of the President. This is a task that, in the past, was usually performed by senior public officials, depending on the number of Ministries that were to be created. There is little room for flexibility in performing this task since the subjects to be assigned to Ministries often remain the same; for example, Defence, Foreign Affairs, Justice, Finance, Education, Health, Agriculture, Industries, Trade, etc.

Appointment of Ministers and Deputy Ministers

The 19th Amendment made a very significant change in the power of appointing Ministers and Deputy Ministers.  Previously, the 1978 Constitution empowered the President to exercise that power “in consultation with the Prime Minister where he considers such consultation to be necessary”. The 19th Amendment now requires him to act “on the advice of the Prime Minister”. By empowering the Prime Minister to determine the composition of the Cabinet of Ministers, and to advice the President accordingly, an important executive power of the latter was removed. It restored the position that existed under the 1972 Constitution when the President was a constitutional Head of State who acted on the advice of the Prime Minister.

Removal of Ministers and Deputy Ministers

The 1978 Constitution originally provided that a Minister or a Deputy Minister may be removed from office “by a writing under the hand of the President”.  The 19th Amendment deleted that provision. In its place was substituted a provision which states that a Minister or Deputy Minister may be removed from office “under the hand of the President on the advice of the Prime Minister”. Therefore, the process of removing a Minister or Deputy Minister now has to be initiated by the Prime Minister, and in making a removal order the President is required to act on the Prime Minister’s advice. Thereby, the position under the 1972 Constitution has been restored.

The power to reshuffle

Article 43(3) states that the President may, at any time, change “the assignment of subjects and functions” and “the composition of the Cabinet”. He exercises this power on his own, not on the advice of the Prime Minister, or even in consultation with the Prime Minister. Whether Parliament, in the stormy late-night session in April 2015 when amendments were flung at each other from both sides of the floor, retained this 1978 provision deliberately or inadvertently, is not known. How the President can change “the composition of the Cabinet” on his own when he can neither remove a Minister nor appoint a new Minister except on receiving the advice of the Prime Minister, is incomprehensible. The same applies to the “assignment of subjects and functions” which, in Article 43(1), requires to be done “in consultation with the Prime Minister”. In fact, if the President were to decline to assign a particular subject to a serving Minister (as was recently reported in the media), the solution would appear to be for that Minister to resign from the Cabinet and be re-appointed, on the Prime Minister’s advice, as the Minister in charge of that contentious subject.

Dissolution of Parliament

The 1978 Constitution originally empowered the President to exercise his executive power to dissolve Parliament at any time after the first year following a general election.  The 19th Amendment removed that power. The President may now dissolve Parliament only in the last six months of its five-year term.  If he wishes to do so earlier, he needs to obtain the consent of Parliament expressed through a resolution passed by not less than two-thirds of the whole number of its members voting in favour.

Appointment of the Chief Justice and Judges of Superior Courts

The 1978 Constitution originally provided that the Chief Justice, the President of the Court of Appeal and every other Judge of the Supreme Court and Court of Appeal shall be appointed by the President by warrant under his hand. The 19th Amendment removed that executive power. The President may now make any such appointment only if he has previously obtained the approval of the Constitutional Council of which the Prime Minister is a member.

Appointment of Senior Officials of the Government

The 1978 Constitution originally vested the President with the executive power of appointment of the Attorney General, The Auditor General, the Ombudsman, the Secretary-General of Parliament and the Commissioner of Elections.  The 19th Amendment removed that executive power. The President may now not make any such appointment without obtaining the prior approval of the Constitutional Council. In fact, the appointment of the Commissioner-General of Elections is now made, not by the President, but by the Elections Commission with the approval of the Constitutional Council. Curiously, the power of appointment of Secretaries to Ministries, which was vested in the President by the 1978 Constitution, remains intact. However, once appointed, a Secretary is subject to the direction and control, not of the President, but of his or her Minister.

Appointment of Independent Commissions

The 1978 Constitution originally vested in the President the power of appointing several independent commissions including the Public Service Commission, the Judicial Service Commission, the Bribery Commission, the National Police Commission and the Human Rights Commission. The 19th Amendment removed that executive power. The President may make appointments to these and other independent commissions only on the recommendation of the Constitutional Council. Even in the matter of establishing the Constitutional Council, where the President is entitled to appoint five members, he is required, in so doing, to accept the nominations of the Prime Minister and the Leader of the Opposition.

Immunity of the President

Under the 1978 Constitution, as originally enacted, no proceedings could be instituted against the President in any court or tribunal in respect of anything done or omitted to be done by him either in his official or private capacity. The 19th Amendment now permits any person to challenge the President’s official acts or omissions in the Supreme Court by invoking its fundamental rights jurisdiction.

The President’s Residuary Executive Powers

The President, of course, has residuary executive powers which every Head of State possesses. He is the Commander-in-Chief of the Armed Forces and Head of the Executive, as President Gopallawa was under the 1972 Constitution. He may declare war and peace, but since Heads of State do not personally lead their armies into battle in the modern world, his decision to declare war will require the acquiescence of not only the Prime Minister but also several other state agencies. He may appoint and accredit an ambassador, but only if the Ministry of Foreign Affairs has secured the agrement of the receiving state. The recent fiasco involving the Defence Attache in London, when the President reportedly overruled the Foreign Minister’s instructions that the officer concerned should return home immediately, demonstrated a lack of knowledge of the Vienna Convention on Diplomatic Relations. Under that Convention, whenever the receiving state notifies that a member of the diplomatic mission in unacceptable, that member has to return home. The President has the power to pardon any convicted offender, or substitute a less severe form of punishment, but that power has traditionally been exercised on the advice of the Minister of Justice.  Finally, the President of Sri Lanka is constitutionally vested with a unique power, without precedent in the constitution of any other country; that is, to appoint President’s Counsel. In exercising that power, he is not required to obtain anyone else’s advice. 

The President’s remaining executive powers

The 19th Amendment, whether deliberately or inadvertently, left intact certain powers which the 13th Amendment had vested in the President. These relate to provincial administration. The President appoints a Governor for each province. Where there is a failure of its administrative machinery, the President may, upon being so informed by the Governor, assume to himself the powers of the Governor for a period of 14 days; the powers of the Provincial Council passes to Parliament which may, in turn, confer such powers on the President who may, in turn, delegate such powers to any other authority. 

The 19th Amendment, probably inadvertently, left intact the provision in the Constitution which deemed the Public Security Ordinance of 1947 to be a law enacted by Parliament. Consequently, it is the President who, under that Ordinance, decides whether to declare a state of public emergency, and it is the President who makes emergency regulations. However, a proclamation declaring the existence of a state of public emergency lapses in 14 days unless Parliament by resolution approves it. Therefore, unless the President had acted with the concurrence of the Prime Minister, his proclamation will necessarily be short-lived.

Conclusion

While politicians belonging to all the parties vociferously argue that the executive presidency should either be retained or abolished, they appear to have overlooked the fact that the executive presidency established by the 1978 Constitution no longer exists. The 19th Amendment has effectively abolished it.  The President, of his own volition, cannot choose the Ministers. He cannot remove any Minister from office except on the advice of the Prime Minister. He cannot dissolve Parliament at a time of his choosing. Acting alone, he cannot appoint Judges, Senior Officials or the independent Commissions. The Presidency has been stripped of all these fundamental executive powers. In respect of all these matters, he is essentially a constitutional Head of State.

Therefore, the question arises whether an expensive, divisive, nation-wide election is required to elect the next President, merely because he still possesses a few, relatively unimportant powers in respect of provincial administration and the appointment of President’s Counsel. Following the example of countries such as India, should not Parliament, or an Electoral College, elect the next President? Following the example of several other Commonwealth countries, is it not time for Sri Lanka to have a distinguished, non-political, unifying figure, acceptable to all communities, as its Head of State?

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Latest comments

  • 5
    0

    “The 19th Amendment now requires him to act “on the advice of the Prime Minister”.
    This means President has over acted in appointing the Minister of Law and order. If so what should be the punishment?

    Well written and self explanative. True, what we need is an appointment of a President and not one elected at a heavy price. In any case most of the parliamentarians are illiterate, your article was timely.

  • 4
    0

    A brilliant exposition of the powers of the President in the light of the 19th Amendment, by Dr.Nihal J.
    This is a must read for future Presidential candidates especially Gota!
    I CANT IMAGINE THE SCENARIO when he would decide who and who would take SILK [Presidents Counsel] if elected as President!

  • 2
    0

    Clear and erudite analysis. Than you. How typical of our modayas to get so excited about electing a president who does not even have the powers of the titular governor generals.

  • 1
    0

    JR J, Chandrika, Mahinda and MS later it is still unclear as to the role of the President, PM and Cabinet.
    How many of us, the silent majority know the intricacies pointed out by Nihal Jayawickrama here? How many of our MPs are versed on this?
    We must insist potential MPs to sit a qualifying examination on Constitution. No special AC rooms or computers but handwritten scripts.

  • 1
    1

    The interesting point,. there are so many law epert in Sri lanka. but, none exposed it to the country before te establishment of the 19th amendment. Even politicians kept quait. the only explanation is Ranil used corruption to bribe every one. It says at least 200 MPs got money from Ranil.

  • 1
    0

    Well structured and educative piece on the Constitution as it stands, which every citizen should know. Ideally, we should now aim to move on to the next level and get rid of the residual executive powers of the President to make parliament ‘the’ supreme law making body of the country, together with the creation of a secondary chamber composed of intellectuals with untarnished integrity who are above party political affiliations. If done we could witness the emergence of a truly democratic tradition of governance in the country.

  • 1
    0

    Outstanding article. A ‘must read’ for anyone even remotely interested in Sri Lanka.
    Knowing the background of the writer, I am not surprised

    Brian Senewiratne

  • 0
    0

    A very clear and sound analysis which helps us to understand the impact of the 19 th amendment, and also to assess the residuary powers now resting with the President.

  • 0
    0

    S L is in a very precarious situation. Constitutionally a very ineffective President and a disgraceful opportunist as PM.
    A no win situation for the country; a real Hobson’s Choice.
    It’s the people’s choice.
    BAD LUCK ?

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