PRESIDENT’S POWERS IN A CRISIS Constitutional crisis in making?
Posted on August 11th, 2017

Sarath Wijesinghe – former Ambassador to UAE and Israel- Solicitor/Attorney-at-Law

Shift of power by changing heads?

Sri Lankan President’s statement that no party or group can form a Government without his blessings”, even if it is shown that the opposition has 113 members – which is an uphill task – may lead to a constitutional crisis and confrontation in the current political turmoil. Nothing could be ruled out based on the current uncertain trends when Bribery, Corruption, Inefficiency in small and large scales , growing as breath for the disappointed of the citizen living with expectations for a Change” and Good Governance”. President’s statement was prompted by number of statements by the opposition claiming change of the government by changing heads” as under Article 33(1) of the Constitution (amended by the 19th amendment) that the Parliament cannot be dissolved for a period of four and half years akin to the infamous referendum of 1983 extending the parliament for a further period of 6 years without a general election which paved the groundwork for the uprising that lasted over thirty years. Referendum was made a part of the Supreme Law” by the 4th Amendment to the Constitution by article 2(e) which states unless sooner dissolved the first Parliament shall continue until 4th August 1989….”. Similarly under Article 4 of the 19th Amendment the life of the Parliament is extended by four and half years where the President can hold on to power without dissolving the parliament whatever the circumstances amounting reintroduction of ta similar referendum from the back door, is as undemocratic as the referendum by H.E. J.RJayawardena. Ironically it is the present Prime Minister Hon Ranil Wickramasinghe who played a major role in the referendum in 1983 won under controversial circumstances which is still in the public domain. Extension of the life of an elected Parliament end of the period is the most undemocratic act by a group of Honourable Trustees of the people appointed to govern the country as trustees for a limited period which today amounts to Executive and Parliamentary dictatorship. President’s blessings in the present context is a controversial statement when he is answerable to the Parliament as an impartial umpire in the head of the State claiming to be impartial and democratic claiming to be ruled under good governance. In addition to the legal basis of the mood and the expectations agitations of the citizen in general are to be considered seriously based

on the future ground situation and circumstances. Sadly the government is finding ways and means to postpone/avoid elections due on local and provincial elections due soon in the guise of 20th Amendment to the Constitution.

Direct and Indirect Powers of the President

President is given direct and indirect powers under the constitution, conventions, practices and political manoeuvring as the leader/head of the government cabinet and, a political party in which he is the president with enormous powers including expulsion of members with least effort. Direct powers of the President are set out in Article 33(1) in Article 5 of the amended 19th Constitution to summon prorogue and dissolve Parliament, Appointment of the Prime Minister/Ministers, Chief Justice/other judges, Appointment of Ambassadors/High Commissioners and other powers vested by Article 33. He is the head of the State, a member and head of the Cabinet, and a member of the legislator with no power to vote. Though it was argued his powers are curtailed and limited, he appoints six members of the constitutional Council that appoints high posts are appointed by the President thereby he still holds power over appointments indirectly. It is a known secret of the existence telephone influencing with promises and undertakings. He still enjoys immunity from criminal or civil proceedings under Article 35 (1) (amended) of the 19th amendment. Current President has opted to be the Chairman of the Sri Lanka Freedom Party which lacks democracy as in any other political party in Sri Lanka where the Members of Parliament are at the mercy of the party dictatorship headed by the President of the party with enormous powers. President appoints the Prime Minister – Article 42(4)- among members of the Parliament, a person who, in the President’s opinion, is most likely to command the confidence of the Parliament, and again the President in consultation with the Prime Minister determine the member of Cabinet and assignment of subjects and functions – 43(1)-, Appoints National Procurement Commission, ( 156b), Appointment of the Police Commission Article 38(1), Appointment of the Ombudsman, National Police Commission (38-1), Auditor General (35 – 153a), Appoint other Ministers and Deputy Ministers, and assigns to himself Defence, Mahawali Development, and Environment along with all other responsibilities, assignment and duties. Just after the 8th January victory the President appointed Hon. Ranil Wickramasinghe as the Prime Minister with a minority government of 67 members, whilst the former Prime Minister was still holding the office and the Chief Justice his Lordship Mohan Peiris was removed merely by letter a from the Secretary to the President both acts are undemocratic and unconstitutional.

Legal basis and Morality

Above analysis is the legal basis of the issues with is brewing vigorously in the absence of periodic elections the electorate is early awaiting for. Despite series of serious accusations previous regime conducted 29 elections at the maturity of the life of provincial and local bodies. It is unfortunate the rulers have not learnt bitter lessons and dangerous consequences of not holding periodic elections in/during 1982 that led to the JVP uprising in 80’s and LTTE terrorism that ruined the nation over three decades. Electorate should not feel that they are denied of the basic democratic rights of franchise used and enjoyed successfully since independence in an exemplary way for decades/generations. If the electorate is claiming /demanding a change forcible suppression in any way will lead to anarchy and loss of confidence. It will be an enormous task for the opposition to mobilise 113 Members of Parliament for a Change considering the privilege’s and perks enjoyed by the legislature they embrace with great care irrespective party politics or any other differences. Everybody enjoys glory power and the unlimited financial benefits protecting the mafia at any cost until the last moment to earn for generation before forced out. There is a move for approval of 715 million for the travel expenses of the \members of parliament for the month of June is a fraction of the massive burden of the citizen. Ravi Karunanayaka’s resignation is stage managed to protect the real culprits and a fraction of massive corruptions. Suppression the will/wish of the citizen on technicalities’ or President powers will not be a vice step as it may explode to unexpected magnitude, which could only be avoided by holding periodic and impartial elections by the Executive President who is still enormously powerful.

Executive dictatorship and /or Parliament Dictatorship (popularly known as the Parliament Mafia)

Dictatorship is a form of government in which a country is ruled by one person or by polity and power is exercised through various mechanisms in order to ensure the countries power remains strong. Power of the President is well centralized despite the hastily and haphazardly approved the 19th amendment tailor made for the President and Prime Minister by Article 17(1) and Article 51 introducing restrictions on the most popular opponents akin to the removal of civic rights of Madam Bandaraneike after 1977 victory. She was the most powerful and winning contender over H. E. J .R Jayawardena whose rights was supressed for JR’s victory. Taking Defence, Mahawili and Environment under President under 19th amendment is a tailor made changes to the Constitution to benefit the President Sirisena and Prime Minister who was unsuccessful in 29 elections compelled to dissolve the parliament prematurely on a technicality during then President Madam Kumaratunga Bandaraneike. Sri Lankan Parliament consists of 225 members enjoying privileges, and perks unparalleled to any other parliamentarians anywhere in the world. They are paid high salaries, salaries for

staff, housing, insurance, extremely cheap food and transport in addition to the vehicle permits they sell illegally with enormous profits. The privileges and perks are accruing unlimited and all the members are united in enhancing perks and privileges though fight tooth and nail on all other matters. Both referendums the Parliament voted with no hesitation in addition to the 17th, 18th and 19th Amendments to the Constitution which is hastily and haphazardly drafted legislation which has muddled the constitution as a pickle. Every member has a craze for expensive vehicles and the public action case instituted by an activist lawyer Mr Naganande Kodithuwakkue , that 100 Parliamentarians have sold their car permits illegally at a loss of 3.1 billion to the citizen. When Mrs Dilrukshi Wickramisinghe was confronted she has taken up the position it is the government policy, though principles of the Lichchavi” good Governance is otherwise. At the courts the Attorney General has undertaken to initiate legal proceedings, no steps have been taken so far. These hundred are those who are exposed when all or most others including the leaders of parties and those holding high positions have enjoyed the benefits. Others are no angles with skeletons on their cupboards. There is a weak opposition of 16 MP’s whose mandate is to look after the North and East voting with the government in the Parliament and supporting then at every turn. The situation has worsened with the undemocratic political parties with enormous disciplinary powers over the members in the parliament.

Now that all political parties have joined together to jealously guard and protect their benefits at any cost, it is hard for a split group and to mobilize 113 members for a change.

Constitutional Crisis in the Making

Major Constitutional changes are due with the appointment of a Public Representation Committee for a new constitution and Committees in the Parliament despite number of schools of other schools of thoughts that the constitution should be amended without going for a new Constitution due to most controversial issues on Religion, Devaluation, Unitary nature of the State and provisions on Reconciliation when the citizen is more interested on water and electricity cuts, drought, after effects of the floods, blast at the Army, Uma Oya, cost of living and Hambantota agreement with a private Chinese Company and plans of sale allegations of sell off of family silver. Proposed 20th amendment to hold the provincial elections on the same day and not holding elections of the provincial and local councils as scheduled is a dangerous move and motivated with ulterior motives to postpone elections they are scared to face. It appears that the government intends postponement elections due to unpopularity and other scandals that have made issues complicated. Would these unwise steps ease

the tension or explode is a matter left to the citizen and the political activists. We wish and pray the Trustees of the Nation be wise rulers.

One Response to “PRESIDENT’S POWERS IN A CRISIS Constitutional crisis in making?”

  1. Dilrook Says:

    Executive presidency is the bane of the nation. Every achievement of EPs could have been achieved by the Cabinet of ministers with better accountability. Post-war, the EP system has turned minority extortionists into kingmakers.

    I too supported the continuation of the EP system until it became strikingly clear that it has more disadvantages than advantages, particularly with the assumption of office by Sirisena who has been violating the Constitution at will since the day he took oath. He has been unashamed to admit his gross violation of the Constitution which he can.

    What’s more, even the next presidential election date is decided by him. He will use the least unfavourable date for the purpose when his potent rivals are either in prison, suffer civic disability or massive unpopularity.

    People can’t care less about PC elections. These are useless and imposed on the people via the illegal 13A. PCs are white elephants. However, LG elections must be held as due.

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