By Neville Ladduwahetty Courtesy The Island

August 1, 2019, 9:00 pm 

According to a media report, the former President, Mahinda Rajapaksa speaking during the adjournment debate on a new Constitution is reported to have stated: ‘this country could not move forward without clearing up the confusion created by the 19th Amendment’.

He is stated to have added: “Once a new government takes office we hope to obtain the support of all political parties represented in Parliament for the new Constitution”. (Daily Mirror, July 27, 2019)

The public is however not aware whether the fundamentals of the “new Constitution” would be based on a Presidential system or a Parliamentary system. If the new Constitution is based on a Presidential system, the hope is that it would be an improved Presidential system, and if it is the latter, it would amount to reverting back to a Parliamentary system that would be along the lines that existed in 1972.

However, if these good intentions do not materialize due to the inability to meet constitutional constraints such as a two-thirds approval of Parliament and a referendum, the country would continue to be governed by existing constitutional provisions of the 1978 Constitution together with the amendments introduced by the 19th Amendment (19A), notwithstanding all the confusion created by it as stated by President Sirisena, former President Mahinda Rajapaksa, and also more recently admitted by the architect of 19A. Therefore, it is of vital importance that 19A is revisited in order to ascertain whether the 19A as it currently operates is in violation of the Constitution or not, and furthermore, a clearer understanding of the powers of a President under 19A.

REASON for CONFUSION

Apart from several shortcomings in 19A the common perception is that 19A has derogated the powers of the President thereby creating two Heads of government responsible for Executive functions; one being the President and the other the Prime Minister and the Cabinet of Ministers drawn from Parliament. The question that arises is whether the notion of two Heads of government is due to a constitutional provision in 19A or due to the manner 19A is interpreted by constitutional experts that powers of the President were derogated by 19A, creating the impression that there are two Heads responsible for Executive functions.

The question of two Heads of government is not an issue if the President who is the constitutionally the Head of the Executive and the Prime Minister and the Cabinet of Ministers belong to the same political party. However, if and when the President and the Prime Minister and the Cabinet of Ministers are from two different political parties and therefore ideologically different, as it is under the present dispensation, the recognition of two Heads where both believe that they are constitutionally entitled to exercise Executive functions, leads to chaos and confusion. Therefore, it is imperative that the Judgment of the Supreme Court relating to 19A is scrutinized carefully to ascertain whether in fact two Heads of government could be charged with the responsibility of exercising the Executive functions of the People.

RELATIONSHIP between

PRESIDENT and CABINET

The relationship between the President, the Prime Minister and the Cabinet of Ministers is the cause for the current confusion within the government. Setting aside personality traits and ideological differences between them, the confusion stems mainly from a total misreading of the constitutional authority of the President in relation to the Prime Minister and the Cabinet. This relationship was made crystal clear by the Supreme Court during its determination on the 19A Bill. The Supreme Court stated thus:

“The People in whom sovereignty is reposed having made the President as the Head of the Executive in terms of Article 30 of the Constitution entrusted in the President, the exercise of the Executive power being the custodian of such power. If the people have conferred such power on the President, it must be either exercised by the President directly or someone who derives authority from the President.…. It is in this backdrop the Court in the Nineteenth Amendment Determination, came to a conclusion that the transfer, relinquishment or removal of a power attributed to one organ of government to another organ or body would be inconsistent with Article 3 read with Article 4 of the Constitution. Though Article 4 provides the form and manner of exercise of the sovereignty of the People, the ultimate act or decision of the executive functions must be retained by the President. So long as the President remains the Head of the Executive, the exercise of his powers remain supreme or sovereign in the executive field, and others to whom such power is given must derive the authority from the President, or exercise the executive power vested in the President as a delegate of the President. The President must be in a position to monitor or to give direction to others who derive authority from the President in relation to the exercise of the Executive power. Failure to do so would lead to a prejudicial impact on the sovereignty of the People. The constitutionality of the following Clauses are examined keeping in mind the observations referred to above” (Siripavan C.J. S.D. No. 04/2015).

The following conclusions could be drawn from the determination of the Supreme Court:

1. “As long as the President remains the Head of the Executive others derive their authority from the President as a delegate of the President”.

2. “the ultimate act or decision of the Executive functions must be retained by the President”

3. “The President must be in a position to monitor or to give direction to others who derive authority from the president in relation to the exercise of the Executive power”.

In view of the conclusions cited above, it is beyond comprehension how Articles 43 (1) and (2) in the 1978 Constitution and 42 (1) and (2) in 19A that call for the Cabinet to be “responsible and answerable to Parliament” and also be “responsible for the direction and control of the Government”, came to be incorporated in the original Constitution and repeated in 19A when in fact it is only the President that is answerable to the People and responsible for direction and control of government as determined by the Supreme Court.

The more important question though, is how is the Judiciary to respond in the event these Articles were to influence a determination. Are they to accept them because they are included as part of the supreme law despite being conscious of their inappropriateness, or would they knowing that they contradict core principles of separation of power ignore their existence?

PRESIDENT – THE CUSTODIAN of

EXECUTIVE POWER

If the “ultimate act or decision of the executive functions must be retained by the President” as determined by the Supreme Court and as reported, he is opposed to agreements relating to ACSA, SOFA, MMC Compact, and for handing over of the East Container Terminal to Japan and India, his decision should prevail notwithstanding pressures from the Cabinet. Is the reason for not asserting his authority due to lack of awareness of his constitutional power or any other reason, is the burning question. Whatever, the case may be, in the final analysis it is the President and only the President who is answerable and responsible for the Executive action entrusted by the People as part of their sovereignty and stated in Article 4 (b). This Article states: “the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People”.

Under these guidelines, the confusion associated with two Heads of government cannot exist. The only explanation is that those to whom Executive power has been delegated have usurped the powers of the President. Therefore, there is an urgent need for the President to assert himself and exercise constitutional powers entrusted by the people. This goes for the current President as well as any future President as long as the People are governed by a Presidential system of government.

CONCLUSION

The intention of 19A was to transfer power from the President to the Prime Minister. The Supreme Court ruled that the Constitution does not permit the “transfer, relinquishment or removal of power attributed to one organ to another” without a Referendum. Since the coalition government did not want to face a Referendum, the project to transfer power to the Prime Minister failed, which means the President retains his powers. Despite this, 19A contains provisions that confuse the President versus Prime Minister relationship. A few key areas of this confusion were clarified by the determination of the Supreme Court.

For instance, there are Articles in the 1978 Constitution and 19A that contradict core principles of separation of power on which Presidential systems of government are based. These need to be amended if confusion is to be avoided. Another issue that adds to the confusion is the total misreading of President/Cabinet relationship in the field of Executive action. The Supreme Court determination made it crystal clear that all Executive power reposes with the President, and that all others associated with him in executive action derive their authority from the President as delegated powers. Therefore, the President is constitutionally required to assert himself and make sure that the “ultimate act or decision of Executive function must be retained by the President”. This means that the notion that 19A divided power between the President and the Cabinet is absolutely a wrong interpretation of the fundamentals of the Constitution.