Dharshan Weerasekera

This essay is the second of what is turning out to be a series of essays on the problems with the proposed 19^th Amendment to the Constitution.  In this essay, I focus on the important topic of Separation of Powers,” and what the proposed amendment does or does not do to it.  Simply put, the proposed amendment destroys what little of separation of powers exists under the present Constitution.

In the discussion that follows, I shall first explain what Separation of Powers” is, and why it is important, then briefly explain the separation of powers that exists at present under the Constitution, and finally explain the arrangement that would ensue if the 19^th Amendment is adopted.

The United States Constitution is generally considered the best exemplar of separation of powers doctrine. [1]  I’ll start with two quotes from the Father” of the U.S. Constitution, James Madison, and then interpret those in order to extract what separation of powers is, and why it is important.

The first quote is quite famous, and gives the rationale for separation of powers:  The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”[2]

The second quote eloquently summarizes how separation of powers is supposed to work, and is as follows:

Ambition must be made to counteract ambition.  The interest of man must be connected to the constitutional rights of the place.  It may be a reflection on human nature that such devices should be necessary to control the abuses of government.  But what is government itself but the greatest of all reflections on human nature?  If men were angels, no government would be necessary.  If angels were to govern men, neither external nor internal controls on government would be necessary.  In framing a government which is to be administered by men over men, the great difficulty lies in this:  you must first enable the government to control the governed; and in the next place oblige it to control itself.  A dependence on the people is, no doubt, the primary control on government; but experience has shown mankind the necessity of auxiliary precautions.”[3]

From the first quote, one can extract the essence of separation of powers.  Basically, the doctrine says that the three branches of government must be handled by different people.  Of course, the branches are not completely separated from each other, because in that case no government would be possible.  But the basic idea is that each branch will act as a check on the others if they tried to abuse their powers.

From the second quote, one can extract the general importance of separation of powers to a government.  I shall summarize it as follows:  What most people expect from government is good governance, which is to say, they want government conducted according to the rule of law, and not according to the whim, sentiment, or interest of the political leader or group of political leaders who happen to be in power at any given time.

If the political leaders at any given time are angels”—or, if I may use a term with a bit more local flavor, bodhisattvas—which is to say, their personal morality, sense of decency and decorum are sufficient to prevent them from abusing their powers, that is well and good.  But, what if they turn out not to be bodhisattvas?  In that event, the people are at the complete mercy of those political leaders until the next election.

If political leaders turn out to be villains after they are elected, separation of powers is an auxiliary precaution” that can keep them from abusing their powers.  To put it another way, separation of powers is a safety-net for the people, to keep their political leaders in check between elections.  That then is the general importance of separation of powers.

In shall now turn to the separation of powers that exists under our Constitution at present.  In my view, the present Sri Lanka Constitution has a very weak separation of powers, for the following reasons.

First, judicial power is made entirely subservient to the legislature.  This is done in two ways.  First, Article 4(c), which establishes the judicial power, says, The judicial power of the people shall be exercised by Parliament through courts, tribunals and other institutions created and established, or recognized, by the Constitution.”

If the judicial power of the People is to be exercised by Parliament through the courts, it means the judicial power in question reposes originally in Parliament, and the courts are merely the Parliament’s instruments in exercising that power.

Theoretically, it would be possible for Parliament, by asserting its prerogative under Article 4(c), to ignore a ruling or decree of the Supreme Court, or to order the Supreme Court, or any other court, to stop any proceedings with respect to any particular matter, and the courts would have no choice but to obey.

(In fact, the above is exactly what happened during the impeachment of former Chief Justice Shirani Bandaranayake, when the Speaker informed the Appeals Court, which had taken up a petition challenging the impeachment, that the court had no business entertaining such a petition.[4]  Of course, for practical reasons, Parliament would not make a habit of asserting its prerogative under Article 4(c) in this fashion, because that would lead to complete anarchy, but I believe the capacity to do it remains.)

Second, Article 80(3) of the Constitution imposes a complete ban on the Supreme Court from reviewing a law after such law is passed.  Article 80(3) says, inter alia, Where a Bill becomes law upon the certificate of the President or the Speaker…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.”

If the judiciary is to be an effective check on the legislature (which is one of the requisites of a separation of powers system) then obviously the judiciary must have the capacity to review laws after they are enacted.  Thus, Article 80(3) effectively bars the Supreme Court from playing a meaningful role as a check” on the legislature.

The other major weakness in the separation of powers under the present Constitution is what is generally recognized, namely, the balance of power between the executive branch and the legislative branch is tilted decidedly in favor of the executive.  This is the aspect of the Constitution that has been the most troubling to the lot of people, and in fact has led to legitimate demands for ‘reform,’ the 19^th Amendment being the obvious result.

I’ll now turn to the separation of powers that would ensue if the 19^th Amendment were to be adopted.  In my view, what the 19^th Amendment does is, under the pretext of pruning” the Executive powers, it shifts all of those powers to the Prime Minister, who is a member of the legislature.  The result is a monstrously powerful legislature, with absolutely no check on it, either from the judiciary or the executive.

To turn to the Constitution as it stands, it is true that the executive is more powerful than the legislature, but, the legislature nevertheless has substantive powers capable of checking the executive.  I’ll just mention two of those powers:  first, the legislature can effectively thwart the executive by defeating inter alia the budget (Article 49(2); and second, the legislature can impeach the President and remove him from office.

Let’s now turn to the changes that the 19^th Amendment will make to the executive.  The relevant changes are those proposed in Articles 33A(2) and (3) and are as follows:

33A(2):  The President shall always, except in the case of the appointment of the Prime Minister or as otherwise required by the Constitution, act on the advice of the Prime Minister or such Minister as has been authorized by the Prime Minister to advise the President with regard to any function assigned to that Minister.

33A(3):  The President may require the Prime Minister or Minister giving advice to him or her under subsection (2) to reconsider such advice, but the President shall act on the advice given to him or her, after such reconsideration.”

How do these changes affect the legislature’s capacity to thwart the executive, either by frustrating the budget, or, under the right circumstances, by impeaching the President?  I’ll take each in turn.

First, Article 33A(2) clearly says that, except in the appointment of the Prime Minster, the President shall always (that is a mandatory requirement that covers all of the President’s actions other than the aforesaid appointment of the PM) act on the advise of the Prime Minster, which means it is the Prime Minister who will actually wield the executive power.

The sole qualification to be the Prime Minister, meanwhile, as set out in the Constitution, is that the individual in question must be a member of Parliament, and, at the time the President appoints him Prime Minster, he must (in the President’s opinion) be the person most likely to command the confidence of Parliament.” (Article 43(3))

If the Prime Minister is the person most likely to command the confidence of Parliament” then obviously he is a person capable of getting the majority in Parliament to support his proposals, or reciprocally, his proposals already reflect the consensus of the majority in Parliament.  In the circumstances, any budget the Prime Minister submits to Parliament—or, to be more precise, hands out to the President and advises him to submit to Parliament—will be approved.

Meanwhile, if the Prime Minister cobbles together a unity government,” which means even the semblance of a principled Opposition in Parliament is removed, there is absolutely no question any budget submitted by the Prime Minster will be automatically approved.   So, there goes the legislature’s ability to thwart the executive by frustrating the budget.

I’ll turn now to impeachment.  It should be noted that, Article 33A(2), which effectively transfers all executive power to the Prime Minister, is silent on how the Prime Minister can be removed, if such a thing were to become necessary.

Article 47 of the present Constitution sets out three clear ways that the Prime Minister, or for that matter any Cabinet Minister, can be removed:  one, by writing under the hand of the President; two, by the Prime Minister (or Cabinet Minister) resigning of their own accord; and three, by the Prime Minister (or Cabinet Minister) ceasing to be a Member of Parliament.  Note that, as per the first of the above methods, the President, at his pleasure, can remove the Prime Minister, or any other Cabinet Minister.

To return to the proposed Article 33A(2), it clearly says that, except for the appointment of the Prime Minister, the President shall always follow the advise of Prime Minister in all his (the President’s) actions.  This would obviously include the removal of the Prime Minster, or any Cabinet Minister.  What does this mean?  It means only one thing, the Prime Minister, along with members of the Cabinet, who will be running the Government, cannot be removed, no matter what they do, for the duration of Parliament.

To summarize, then, under the proposed 19^th Amendment, the executive power is absorbed into the legislature.  Meanwhile, an executive branch is created, more or less within the legislature itself, comprising of members of the legislature, who cannot be impeached on any ground whatsoever, and who have a free hand to run the government in any way they want, for the duration of Parliament.

In the circumstances, the only safeguard for the people is the expectation, and perhaps the hope, that the persons elected to the legislature are bodhisattvas—that is to say, their personal morality, sense of decency and decorum are sufficient to prevent them from doing wrong.  If the elected leaders turn out not to be bodhisattvas, but villains, the people are well and truly finished, at least until the next election.

To put the above system in a nutshell, it takes the executive with near-dictatorial powers provided for in the present Constitution, and creates an office of a Prime Minister (and a Cabinet) with absolute powers.  It is difficult to imagine that any reasonable person would consider that the aforesaid arrangement can be salutary to the republic.  As is well known, Power corrupts, and absolute power corrupts absolutely.”  Hence, for this reason also, the proposed amendment must be rejected.

Dharshan Weerasekera is an Attorney-at-Law.  He is the author of, The UN’s Relentless Pursuit of Sri Lanka, and the need for effective counter-measures (Stamford Lake, 2013)    

[1] Someone might say, What do we have to learn from the U.S Constitution?  The Americans have by now made a mockery of their Constitution, or any semblance of the rule of law, by suspending nothing less than the writ of habeas corpus, and also by allowing the executive to accumulate so much power that he can order the extra-judicial killing of U.S citizens, if he decides, in his discretion, that such citizen poses a threat to the national security of the country?”  My only reply is, with sufficient effort, (and perhaps enough lawyers!) it is possible to subvert almost any doctrine, no matter how pristine in may be in its original form.  What the Americans have done to their Constitution over the years is their problem.  I am interested only in certain principles in the American Constitution, consistent with reason and common-sense, that may be useful to us.  It should be noted that, if indeed the Americans have succeeded in destroying their Constitution, it has taken them two-hundred years to do it.  Meanwhile, that Constitution has helped them become the most powerful country in the world, perhaps in all history.  What have our Constitutions done for us?  The present Constitution has led us, or at least presided over, a thirty-year civil war.  And now, with the 19^th Amendment, it’s on the verge of setting in motion the irrevocable process that would lead to the division of the State and the creation of an Eelam in the North and East of the country.  If there’s any principle in the American Constitution, or any Constitution, that can help us frustrate the dreams of the Eelamists for two-hundred years, I for one am willing to embrace it.

[2] James Madison, Alexander Hamilton and John Jay, The Federalist Papers, (ed) Isaac Kramnick, Penguin, London, 1987, p. 303

[3] Ibid, p. 319

[4] The Speaker’s argument was repeated more or less in the same form by the Attorney General at the Supreme Court, when the appeal on the Court of Appeal’s ruling against the Parliamentary Select Committee overseeing the impeachment, was taken up. The Supreme Court accepted the AG’s argument.  See, SC Appeal No. 67/2013 (decided on 21/2/2014) pp. 17-18