The Next President Will Have All the Powers President Sirisena Now Enjoys
Posted on June 10th, 2019

Dilrook Kannangara

Nihal Jayawickrama has written recently claiming the post of President will be merely ceremonial when President Sirisena vacates office. The government will implement policies and programmes of the prime minister and his Cabinet ministers (all of them parliamentarians). The president will be notified of decisions. Though the president will retain some powers like declaration of war, appointment of ambassadors, etc. all these can be disrupted by the Cabinet of ministers by withholding resources. These are mere fabrications of reality.

In truth, the next president will have all the powers of President Sirisena until February 2020 and upon the election of a new parliament (at a time of the next president’s choosing) the president will get a Cabinet of his choice to implement his policies and programmes.

This is by no means a justification of the disastrous executive presidency that ruined this nation. Executive presidency must be totally removed. However, the reality is it is as strong as ever and there are no Constitutional provisions or transitional arrangements to reduce the powers of the president from what President Sirisena now enjoys.

As a legal expert, I can state these very clearly and with responsibility.

Claim 1: Under Article 45, only a Member of Parliament may be appointed a Minister

There is no such provision.

Article 45. (1) The President may, on the advice of the Prime Minister, appoint from among Members of Parliament, Deputy Ministers to assist Ministers of the Cabinet of Ministers in the performance of their duties.

It does not prevent the president from retaining any of the ministries. He may appoint a MP to become a minister for a subject or he may not appoint one and retain it. What can anybody do about it? Absolutely nothing.

However, what is more important is the President’s position in regards to the Cabinet and the Prime Minister.

Article 42 (3)  The  President  shall  be  a  member  of  the  Cabinet  of  Ministers and shall be the Head of the Cabinet of Ministers.

(4)  The  President  shall  appoint  as  Prime  Minister  the  Member of Parliament, who, in the President’s opinion, is most likely to command the confidence of Parliament.

The last provision remains unchanged. This is how Premadasa (1978), Wijetunga (1989), Rathnasiri (1999), Mahinda (2004), Jayarathna (2010) and Mahinda (2018) were appointed Prime Minister by the president. The next president can do the very same and no one can question his opinion.

The President as Head of Cabinet can implement his policy and remove ministers who do not implement his policy the way he wants it implemented.

Article 43. (1)  The  President  shall,  in  consultation  with  the  Prime  Minister, where he considers such consultation to be necessary, determine the number of Ministers of the Cabinet of Ministers and the Ministries and the assignment of subjects and functions to such Ministers.  

Thereafter, the president may totally disregard the prime minister in deciding how many ministries should be there and how to assign them.

Article 43 (3)  The  President  may  at  any  time  change  the  assignment  of  subjects  and  functions  and  the  composition  of  the  Cabinet  of Ministers. Such changes shall not affect the continuity of the Cabinet  of  Ministers  and  the  continuity  of  its  responsibility  to  Parliament.

So, the President can remove minister at will and there is absolutely nothing anybody can do about it. The need to consult the PM is optional. Poor PM! India’s Constitution does not allow this right to the President. President Gopallawa didn’t have this right.

Claim 2: In terms of Article 42, which the 19th Amendment appears to have overlooked, the next President will continue to be the Head of the Cabinet of Ministers”. This probably means that he may chair meetings of the Cabinet, as the Speaker does meetings of Parliament

As explained above, the President decides the subjects of ministries and who hold what ministry and change his mind as frequently as he possibly can. There is nothing that hinders him. Equating the President as Head of the Cabinet to the Speaker of parliament in terms of the power to control its affairs is way off reality. After all the ministers have been appointed and assigned ministries by the president. The Speaker does not appoint the parliament! The parliament appoints the Speaker.

Claim 3: [The President] may offer his opinion on Cabinet Memoranda and even initiate a discussion on a subject close to his heart.  What he will not be able to do is seek to implement his policy” in respect of a particular subject, since that would be to trespass on the territory of a duly appointed Cabinet Minister to whom that subject has been assigned.

It is easier than that. If the minister fails to implement the policy of the president, the latter simply removes the ministry from him and assigns it to someone else willing to implement the president’s policy or keeps it without assigning it. End of story. There is nothing a MP would do to get and retain a ministry. Fearing the loss of the ministry, all ministers including the prime minister will implement the policy of the president. Otherwise none of them will be able to face their wife and relatives let alone the voters!

Claim 4: The 19th Amendment has already: (i) removed the legal immunity enjoyed by the President, etc.

Not so. There is no provision that brings the president under the purview of the parliament or the Supreme Court. That would be the legislature trespassing into the territory of the Executive and the Judiciary so doing. If 19A so proposed, it would have been struck down by the Supreme Court. In fact, certain provisions of the bill were struck down by the Supreme Court as they sought to trespass into other branches of the government. The surviving little of the 19A are harmless to the executive power of the president.

Claim 5: [The President] may declare war. However, his declaration of war will not be effective or operational unless the Minister of Defence provides the necessary manpower and weaponry to engage in warfare.

It is far easier than that. Change the minister and appoint from the vast parliament of 225 willing MPs a minister who carries out the policy of the president or retain the subject of defence to himself. Given the near $2 billion worth of the ministry, the minister will be only too willing to keep it and do what the president says than lose it by non-compliance.

Claim 6: Has no one yet realized that under the 19th Amendment, the process of replacing presidential government with parliamentary government will reach fruition on the day that President Sirisena ceases to hold office?

There are no such transitional provisions in the Constitution. I challenge anyone to show such provisions. President Sirisena put a similar matter to the Supreme Court. He wanted to know if he had 5 years as amended by the 19A or 6 years as it was when he assumed office. The Supreme Court decided that after 19A, the president’s term if 5 years and not 6 and there’s no transitional provision. A similar verdict was given on the president’s ability to dissolve parliament before 4 and a half years. Sirisena argued that since there was no such provision in the Constitution when he assumed office, he should not be subjected to it. The court correctly rejected it. There are no transitional provisions for or against president Sirisena. The next president enjoys all the powers President Sirisena enjoys today.

Strangely, there is no mentioning of the president’s right to pardon convicted criminals and that includes the president himself. There is no more imaginable power than this. It means even if the judiciary decides on a felony, the President can release him.

Another key power is the president’s ability to declare presidential and parliament elections. The president will time the election so well to get him the maximum electoral advantage.

Once again, this is not to be taken as support for executive presidency. On the contrary, executive presidency is the bane of Sri Lanka and it must be removed. If it remains, extremist and racist elements from mono-ethnic political parties will be kingmakers. No matter who wins the next presidential election, all of them will be in his Cabinet doing the very same thing. Foreign powers will manipulate the executive president to get things done without impinging on the legislative sovereignty of the people exercised by parliament. In July 1987 only one MP was by the side of the president when India invaded the island nation. But the president implemented the Indian agenda through parliament by locking them up in hotels until they passed 13A.

One presidential hopeful has said a new constitution will be presented to the people for a vote and upon passing it by the people, it will be the constitution of the country. This is a valid claim as the people can exercise direct democracy. Elected representatives are only the representatives (agents) of the people and there is nothing that can take away the nation’s sovereignty that is owned by the people and only delegated to the president, the parliament and the judiciary. The agent can never take away the power of the principal. The Principal can at any time take back any power delegated to the agent. This is related to yet another power of the president – the power to call a referendum where the parliament’s legislative power and the judiciary’s judicial power are overridden by the people.

One Response to “The Next President Will Have All the Powers President Sirisena Now Enjoys”

  1. Christie Says:

    Bugger the so called constitution for a colony.

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