19 September, 2019

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The Presidential Election – Sleepwalking Into Anarchy? 

By Nihal Jayawickrama

Dr. Nihal Jayawickrama

The last week has seen the public launching of two presidential campaigns. At each of these widely publicized and well-orchestrated meetings, the two potential candidates presented their manifestos. One candidate, with the benefit of a teleprompter, read out a lengthy document which sounded much like a Speech from the Throne at an Opening of Parliament. The other candidate, in more strident tones, promised to implement an equally radical programme of reform if he were elected to the office of President. The question that needs to be asked of both, and of other aspiring presidential candidates too, is how they propose to implement their publicly proclaimed “policies”?

Can the next President implement his promised manifesto?

The constitutional position today is that the Cabinet of Ministers is charged with the direction and control of the Government. It is the Cabinet that is collectively responsible and answerable to Parliament.  While the President is a member of the Cabinet, and is described as being the Head of the Cabinet, under Article 43(2), only a Member of Parliament may be appointed a Minister. A transitional provision in the 19th Amendment enables President Sirisena to assign to himself the Ministries of Defence, Mahaweli and Environment. That transitional provision ceases to operate when President Sirisena ceases to hold the office of President.  The next President will, therefore, not be entitled to assign to himself any Ministry or any subject or function of government.  He may, if he wishes to, chair the meetings of the Cabinet, offer his opinion on cabinet memoranda and even initiate a discussion on a subject close to his heart. What he cannot do is implement his “policy” in respect of any subject, since that would be to trespass on the territory of a duly appointed Cabinet Minister to whom that subject has been assigned.

Can the next President assign to himself the Defence portfolio?

Article 43(2) states quite explicitly that, on the advice of the Prime Minister, the President shall appoint Ministers from among the Members of Parliament.  The next President, not being a Member of Parliament, and not benefiting from the current transitional provision, cannot therefore hold any portfolio.  The fact that the President is entitled, by virtue of his office, to attend Parliament once in every three months, and is entitled to all the powers and privileges of a Member of Parliament when he does so, except the right to vote, does not make him a Member of Parliament. In fact, Article 91 expressly states that the President is disqualified from being elected to Parliament.  

It is argued that the preambular Article 4 states that “the executive power of the people, including the defence of Sri Lanka, shall be exercised by the President”.  In the “defence of Sri Lanka”, the President may, under Article 33(2)(g) declare war and peace, but that is quite separate and distinct from being assigned the subjects and functions relating to defence or, for that matter, other executive powers relating to the administration of justice, health or foreign affairs.  Prior to the 19th Amendment, the President was entitled to “assign to himself any subject or function and, for that purpose, determine the number of ministries in his charge”. That power was expressly repealed by the 19th Amendment.

It is also being argued that since the President is described in the Constitution as “Head of State, Head of the Executive and of the Government, and the Commander-in-Chief of the Armed Forces”, he should necessarily be the Minister of Defence.  Incidentally, under the 1972 Constitution, President Gopallawa was also described as “Head of State, Head of the Executive, and Commander-in-Chief of the Armed Forces”.  These high-sounding titles do not bring with them any special powers. The Commander-in-Chief is not a uniformed officer. In parliamentary democracies, the principle of civilian control of the military is established through the designation of the Head of State as Commander-in-Chief as well.  In the United Kingdom, the Queen is the Commander-in-Chief, and she has never made any claim through that title to be appointed Minister of Defence.

Can the next President change the “composition” of the Cabinet?

Under the 19th Amendment, the President can appoint and remove Ministers and Deputy Ministers only on the advice of the Prime Minister. The power he previously enjoyed of removing the Prime Minister from office has also been repealed. It is being argued by some that Article 43(3) enables the President at any time to “change the assignment of subjects and functions and the composition of the Cabinet of Ministers”.  That provision is immediately qualified by Article 46(3) which states that a Minister or a Deputy Minister may be removed from office under the hand of the President only “on the advice of the Prime Minister”. 

Article 43(2) also qualifies the President’s power under Article 43(3) to “change the assignment of subjects and functions”. For example, the removal of the subject of higher education from one Minister and its transfer to another, will constitute, in effect, the removal of the Minister of Higher Education, and the President cannot do that except on the advice of the Prime Minister.  In any event, whoever is elected President in November will need to “cohabit” with the current Prime Minister and his Cabinet of Ministers until the next general election since the Constitution does not provide for the dissolution of the Cabinet following a presidential election.

Can the mode of election of the President be changed without a referendum?

Article 30(2) states that “The President of the Republic shall be elected by the People and shall hold office for a term of five years.”  Article 83 states that 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 “which would extend the term of office of the President” shall become law only if it is also approved by the people at a referendum.  Therefore, it is only a Bill that seeks to extend the term of office of the President that requires approval by the people at a referendum. A Bill to change the mode of election of the President is only required to be passed with a two-third majority in Parliament.  

Conclusion

Why is it then that, in full and complete knowledge of the purely ceremonial nature of the office of the next President, the major political parties are preparing to squander billions of rupees, and put at risk the personal security of thousands of citizens, in an island-wide election spread over a hundred days, to choose the next President?   

Why does Parliament not legislate, even at this very late stage, and follow the practice of many other democratic countries including our neighbour India, and provide for the election, either through Parliament or by a democratically constituted Electoral College, of a nationally-respected person of knowledge, experience and integrity to the non-political office of President of the Republic?  Why does the UPFA which, when in government in 2000, introduced a draft constitution in which the President was to be elected by Parliament, now remain silent?  Why is it that the present UNF Government whose draft Constitution provides for the President to be elected by the proposed two Houses of Parliament, now remain silent?  Even the JVP appears to be unwilling to present a revised version of its own draft 20th amendment which provides for the next President to be elected by Parliament.  

Do our political leaders not realize that a President elected by the people at a national election, though devoid of power, will surely claim greater legitimacy over a Prime Minister chosen by Parliament, and may well establish a parallel centre of power and make a mockery of parliamentary executive government?  Does no one realize that we could well have a President belonging to one party and a Prime Minister belonging to a different party, and a repetition of the shambolic relationship that now prevails between the Prime Minister and the President, the pantomime that we have been subjected to in the name of “yahapalana”?

Why are civil society, professional bodies and political columnists remaining siIent on this issue?  Why is everyone reconciled to the fact, the unfortunate fact, that through mountains of garbage and corruption at every level, in every institution, in politics, business and in the legal sphere, we are now sleepwalking into anarchy? 

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Latest comments

  • 8
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    In short NJ raises two matters. Firstly, with the full force of the 19th amendment being operational the person who get elected to the office in 2020 has no real say and therefore the very act of promising to do things after being elected as President is clearly a false promise just to deceive the innocent voters. Secondly, since that President is virtually ceremonial why must he be directly elected by the people? My position is that since he is directly elected by the people he cannot be made a puppet of the Prime Minister or the Cabinet and as the term head of the executive implies his word should prevail over that of a Minister even if he cannot be a Minister. We know the result of the “Parliamentary System” of Government that was from 1972 to 1977. The general perception was that the power revolved round Prime Minister. Rightly or wrongly her civic rights with many others (Author included) was stripped for a period of time for abuse of power. So any semblance of an all powerful parliamentary system has to be ruled out. JR constitution too has its serious drawbacks. If the political party of the President commands a majority in Parliament again it becomes a one man/woman show of the President. If not history has shown that it leads to internal bickering, so much so that the Government is non-functional. The remedy is let the Parliament spell out the policy and the law. The President, directly elected by the people but not from a political party (Precedent: Singapore) should be able to check on the government, give directions while not being a Minister and if necessary seek opinion of the people who are sovereign on any questionable matter.

    • 3
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      Don,t waste Tax payer funded elections on sham elections

      Have one election for presidential and parliament elections.

      have one election for provincial government and local govenment

      Any way those who are elected are there to bullshit the people

      Why wase money on bullshit elections?

    • 1
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      Good Sense,
      All what you have said does make good sense.
      But in this article, NJ is not discussing ‘good sense’. He is only discussing the law as it stands today.
      According to him, the law does not give any powers to the new President. If that is so, then it is ‘good sense’ to elect a President in a simple manner rather than spend billions by the Government and the candidates; and in addition have 6 months of chaos in the country and the consequent impact on the economy.

      • 1
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        If Herr Gottler is elected as President( god forbid) he will embark on forming a sibling government and rescind 19th Amendment. All powerful family will throttle the nation into a Mugabe like dictatorship. Ruin the ruined Economy further. Who cares???

  • 0
    8

    NJ, you are wrong.

    The President can still do an October 26 2018 and appoint a PM he likes. Then get that PM’s views on who the ministers should be. Game over!

  • 0
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    Dr. Laksiri Fernando
    You say ” Nihal Jayawickrama denies that he has nothing to do with the 19th Amendment.” No Sir, Nihal Jayawickrama denies that he has anything to do with the 19th Amendment. Am I nitpicking?. Yes, that’s what you have been doing.

  • 4
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    Gammanpilla recently made a stupid statement. I do not know what sort of a lawyer he is. May be like Namal he sat in a separate room and some one wrote his law exam. For Gota to prove that he has renounced his US Citizenship, he should obtain a document from US Govt called “Certificate of Loss of Nationality”. Until and unless he gets this document from US Govt he continues to be a US Citizen although he has renounced his citizenship in front of the US Ambassador in Colombo. Further even is the Certificate of Loss of Nationality is issued by US Govt, he will continue to be under US laws for all the pending cases in USA. Are Sri Lankans to have a President who is running away from US Law? Can he ever leave Sri Lanka to attend any event in any EU or most of the Asian countries where the extradition treaty is there with US?

    • 0
      2

      How did Fonseka contest in 2010 then ? He too had dual citizenship back then. That didn’t stop you fools from voting for him. Law was changed by Ranil in 2015 just to bar Gota from contesting in a future election. BTW he is not running away from the law fool. He has legally renounced his US citizenship. Extradition laws are applicable for anybody not just for current or ex-citizens.

    • 0
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      “Gammanpilla recently made a stupid statement.” a stupid statement? … Hmmmm No, Stupidity is his default position.

  • 2
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    [edited out] Next president is just a ceremonial president ? What are you smoking ? Even though president can’t hold ministries starting from next presidency he is not required to assign them to any person. Just like what Sirisena is doing right now. Sirisena keeps police under him but he is not the minister of justice. Similarly next president can keep any department under him without assigning it to a particular ministry. We still have an executive presidency. Importance of 19A is overblown.

  • 1
    1

    May be why the choice should be Nagananda? – political parties are not designed to do the right thing – they are exclusive clubs.

    Both Mahatma Gandhi and Max Weber, the great German sociologist who was Gandhi’s contemporary characterized Western democracy as being dominated by the party political machines but they differed on what the masses could do about it.

    Weber recognised there was little we could do about it. He accepted that modern democracy was bound to be thoroughly mechanical. Political parties were ‘machines’—soulless constructions designed to withstand the daily grind of winning and holding power. Unlike Gandhi, Weber could imagine no way for our societies to function without these soulless structures. It made democratic politics a peculiarly infuriating and alienating business. The vote, which gives us the people, a voice also made us cogs in the machine.

  • 1
    0

    The kept media assume that Gotler will undo the constitution and assume dictatorial power again. The stupid masses do not appreciate what they have been given and will throw it all away. The mindless manipulation of the media, facebook etc has succeeded in covering up reality and replacing every good thing achieved in the last few years into a pile of dung. Well if you want to live in a pile of dung then go right ahead but don’t say you did not know what was coming. Even to get nominated Gotler is depending on unconstitutional means since he is a US citizen with a snowballs chance of actually getting it rescinded. Gotler was recruited by China. He is their man. No US government will ever touch him with a barge pole. But non of this gets reported. Instead I have heard from many Sri Lankans that it is their belief that Gotler is no longer a US citizen and also that the US wants to give him what he wishes. Maybe pakaya told them so but what mind numbed morons these people have turned into is stunning to watch. The article by Dr Jayawickrema is food for thought. It is what should be on the minds of intelligent people.

  • 6
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    Dr. Nihal Jayawickrama

    It is salutary that you have provoked some debate on the nature of Executive Power under the 19th Amendment. Perhaps the debate could be enriched by your RESPONSE to the following:

    1) Is the 19th Amendment to the Constitution as enacted CONSISTENT with the determination of the Supreme Court on the 19th Amendment Bill?

    2) Did Parliament have the legislative COMPETENCE to enact the 19th Amendment in its TOTALITY without a REFERENDUM?

    3) What is the need to have a Presidential Election where the person elected must have a majority of the total votes polled throughout the country MERELY to exercise powers of a CEREMONIAL head of State you claim are akin to that exercised by Mr. William Gopallawa as Governor-General?

    Amrit Muttukumaru

    • 3
      2

      Amrit, let me answer your three questions:

      1) When a Bill is certified by the Speaker as having been passed, “no court or tribunal shall inquire into, pronounce upon or in any manner call in question, the validity of such Act on any ground whatsoever” (Article 80(3)). Therefore, it is academic whether or not it was consistent with the determination.

      2) Yes. There was no provision in Bill for the 19th Amendment that required approval at a referendum. (see Article 83).

      3) That is precisely the question that I have raised.

      • 5
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        Dr. Nihal Jayawickrama

        Nihal, thanks for your prompt response. Will appreciate your further views on the following:

        1) My understanding is that constitutional ouster clauses only protect LAWFUL Acts. If the 19th Amendment to the constitution has been enacted in a manner that is CONTRARY to the determination of the Supreme Court, cannot that part of the enactment be declared by the Supreme Court to be DEVOID of legal effect in the same way that the Supreme Court held that the proclamation dissolving parliament was invalid?

        2) Should this not be TESTED in the Supreme Court by Civil Society organizations that have adequate RESOURCES for such purposes?

        3) Does the Speaker of Parliament have an IMMUNITY which even the President does not possess?

        4) Does the action of the Speaker ERODE the SEPARATION OF POWERS?

        5) My question was not whether the 19th Amendment contained a provision which required a REFERENDUM. The issue is whether Executive Power can be TRANSFERRED by Parliament without a REFERENDUM?

        6) If the intention of the 19th Amendment was to ‘dilute’ the ‘Executive Presidency’, why did the Bill OMIT to do away with the provision for the President to be elected by a majority of the total votes polled throughout the country? Does this not MILITATE against the purported ‘dilution’ by giving the President MORAL authority against a Prime Minister who is not elected in the manner the President is elected and can even be a NATIONAL LIST MP?

        Amrit Muttukumaru

        • 0
          2

          Amrit, let my try to respond to your questions:

          1) The post-enactment judicial review of legislation was abolished by the 19th Amendment. No court can question, on any ground whatsoever, a law that has been certified by the Speaker as having been duly passed by the required majority.

          2) See answer to Q1.

          3) Neither the Speaker nor the President possess any “immunity”. The President’s acts can now be questioned in court. The Speaker’s acts can be challenged in Parliament.

          4) I don’t understand this question.

          5) Any provision of the Constitution can be amended with a 2/3 majority except those which are specifically mentioned in Article 83. Executive power is exercised by the Cabinet of Ministers. Executive power flows not from the President, but from the Constitution, and that can be amended. The President’s powers are also derived from the Constitution. Much confusion appears to have been caused by the dicta of some Judges that Article 4 is an “entrenched” clause. It is not. See Article 83.

          6) The Bill for the 19th Amendment does not appear to have been drafted professionally. It contains several omissions. The draftsman/draftsmen do not appear to have taken account of all its implications. This situation was compounded by the manner in which it was debated and passed, especially at the committee stage in Parliament during a long night session.

        • 0
          0

          The futile exercise of determining the exact interpretation of the 19th amendment and debating on the pros and cons by Amrit and NJ is lost by the very fact, that, the Possible Presidential Candidates touted today are not in the least concerned. They will rough shod on this piece of Legislation and clean their feet on it. Citizen Perera will have to plead at the Temple at Hulftsdorp for relief and eat humble pie. Any Elected President will make sure he remains in Power and wield power. Presidents Of Sri Lanka are infallible. Are we not witnessing it?

  • 2
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    mr.NJ, you are very correct. then why millions of people go and vote for a toothless president? so presidential election is utter waste.
    dayal

    • 0
      0

      dayal,

      “mr.NJ, you are very correct. then why millions of people go and vote for a toothless president?”

      Why?

      The mean IQ is 79. There are about 16 million eligible voters.
      So there are 8 million voters with IQ’s below 79.

      https://en.wikipedia.org/wiki/IQ_classification

      Current Wechsler (WAIS–IV, WPPSI–IV) IQ classification
      IQ Range (“deviation IQ”) IQ Classification

      130 and above Very Superior
      120–129 Superior

      109–119 High Average
      90–109 Average

      80–89 Low Average

      70–79 Borderline
      69 and below Extremely Low

  • 4
    0

    dayal.

    …Then why millions of people go and vote for a toothless president?
    Interesting question! The answer is simple!
    Srilanka is a land like no other!

  • 0
    0

    The president still has lot of powers even after the 19th amendment. He is the one who nominated the PM and the cabinet. He can technically refuse to appoint someone a minister and there is nothing PM can do. He can also appoint ministry secretaries etc. more importantly he nominated judges. Not to mention the commanders of the tie forces and the IGP

    If he doesn’t get along with the PM he can make life very difficult to the PM

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