By Lakshman I. Keerthisinghe Courtesy The Ceylon Today

It was settled by the Constitution, the laws, and the whole practice of the Government that the entire executive power is vested in the President of the United States.” – Andrew Jackson-Former US President

Presidential powers are not exercised by a body or group. The Constitution vests ‘all executive power’ in one and only one person – the president.” –William Barr-US

Public Servant

The draft of the Twentieth Amendment to the Constitution has been published in the Government Gazette and made available for public scrutiny. Public excitement has erupted over the proposed provisions of the Bill implying that all executive power has been bestowed on the President granting an autocratic power. As quoted at the outset as Andrew Jackson and William Barr have aptly observed all executive power in the United States is vested in the President. This does not mean that the US is governed by an autocrat or a dictator. The three main pillars of a democratic Government are the legislature the executive and the judiciary according to the doctrine of separation of powers proposed by Montesquieu, French social and political philosopher in, Spirit of the Laws, where political authority of the State is divided into legislative, executive and judicial powers. He asserted that, to most effectively promote liberty, these three powers must be separate and acting independently so as to prevent the concentration of power and provide for checks and balances. 

 The powers of branches of Government are: 

The legislative branch for enacting laws of the State and appropriating money necessary to operate. 

The executive branch, for implementing and administering the public policy enacted, funded by the legislative branch.

The judicial branch responsible for interpreting the Constitution and laws and applying their interpretations to controversies brought before it.

Parliamentary Council

The passing of the new Bill on the Twentieth Amendment in Parliament will restore the Executive Presidential powers enjoyed by the President since 1978 until they were diluted in the 19th amendment in 2015. According to the draft, the Constitutional Council (CC) will be replaced with the Parliamentary Council which is comprised of the Prime Minister, the Speaker, Leader of the Opposition, a nominee of the Prime Minister and a nominee of Leader of the Opposition. This will enable the President to hold Cabinet portfolios, to appoint the Cabinet of Ministers.

The President will be vested with powers to appoint Chairmen and members of Commissions: Election Commission, Public Service Commission, the National Police Commission, the Human Rights Commission, Commission to Investigate Allegations of Bribery or Corruption, Finance Commission and Delimitation Commission. The President will also appoint the Attorney-General, the Auditor-General, the Parliamentary Commissioner for Administration and the Secretary-General of Parliament with the observation of the Parliamentary Council.

Dissolving Parliament

A notable amendment in 20A is the President could be a member of the Cabinet of Ministers while being the Head of the Cabinet of Ministers and he can determine the number of Ministers in the Cabinet and Ministries. He can assign subjects and functions to Ministers in consultation with the Prime Minister when necessary.

At present, the President is unable to dissolve Parliament after one year but has to wait for four-and-a-half years to do so. When President Gotabaya Rajapaksa was elected in November 2019, he did not have the support of the Parliament to get an approval for Finance Bills until 2 March 2020 – the day Parliament completed four-and-a- half years of its 5-year term to dissolve it. Under the 20th Amendment, the President would be allowed to dissolve Parliament in a year after it first convenes and would also be vested with the power to remove the Prime Minister.

Due to the 19A, the President’s authority was drastically curtailed in the appointment of members to the Independent Commissions. The Constitutional Council has the power in this regard. In the original draft of 19A, there was a proposal to include five civil society representatives to it, but it was reduced to three at the intervention of the opposition at that time. If not for that, civil society nominees would have been able to supersede elected representatives in the appointment of members to the Independent Commissions.

Political bias

It was evident that political motivation was central to the hasty enactment of the 19th Amendment. The political parties did not have sufficient time for an in-depth studies of the 19A Bill. As a result, the country had to grapple with many a contradiction during the actual implementation of it. The two power centers failed to act in consort on most issues, leading to indecision, ending in unstable governance.

In conclusion, the misconception created in the public mind the Government is heading for an autocracy should be removed as President Gotabaya would undoubtedly lead our motherland into peace, tranquility and prosperity.

(The writer is an Attorney-at-Law with LLB, LLM, MPhil.(Colombo)-keerthisinghel@yahoo.co.uk)