Abolishing Executive Presidency A pledge to fulfil TNA’s manifesto
Posted on September 23rd, 2019

By Canishka G. Witharana Courtesy Ceylon Today

On 17 September 2019, Speaker Karu Jayasuriya stated his goal as, “abolition of Executive Presidency.” 

Since 2015, two attempts have been made to abolish the Executive Presidency. The first attempt was via the 19th Amendment. In the original 19A Bill, the following clauses were proposed:

Clause 11 of 19A (Original) Bill;

42(1) There shall be a Cabinet of Ministers charged with the direction and control of the Government of the Republic.

43(3) The Prime Minister shall be the Head of the Cabinet of Ministers.

43(1) The Prime Minister shall determine the number of Ministers of the Cabinet of Ministers, and the Ministries and the assignment of subjects and functions to such Ministers. 

The second attempt was via the 20th Amendment proposed by the JVP. It was suggested to remove the word ‘Government’ from present Article 30. This would have resulted in the removal of the status of the President as the ‘Head of the Government.’ Both attempts were to remove or reduce the powers of the President, who is presently in control and charge of the Government. 19A blatantly sought to transfer such powers to the Prime Minister. 20A (of JVP) expressly tried to remove the powers of Government from the President.

However, in both instances, the Supreme Court held that “Clauses in the Bill relating to the removal or reduction of the executive power of the people which would be exercised by the President of the Republic would directly violate Article 3 of the Constitution, and that therefore they should be approved by the people at a referendum.”

Therefore, the office of the (Executive) President cannot be removed or his powers cannot be reduced or removed without obtaining a specific mandate from the people at a referendum. 

Office of the President

Why is the office of the President made so strong and solid? 

Constitutionally, the Executive power of the people, including the defence of Sri Lanka, shall be exercised by the President (Article 4(a)). The President is the Head of the State, Head of the Executive and of the Government. He is also the Commander-in-Chief of the Armed Forces (Art. 30).   

The people entrust their executive power in the President at the Presidential Election. Such power flows down from the President through the machinery of government, which comprises the Cabinet and the other officers in the State Administration. The Cabinet of Ministers is charged with the direction and control of the Government (Article 43(1)). Hence, the Prime Minister and the Cabinet of Ministers get their powers from the President. Secretaries of the Ministries and all officials in the State Administration function thereunder. 

The People expect the President to fulfil duties entrusted to him by the Constitution (Article 33(2)(1)(a)). The President is obliged to assure a stable government in a Unitary State. To achieve that, the machinery of Government should function without any failure on an “unbroken line of accountability and authority” that runs through the hierarchy of the Government. 

From 1987, (with the 13th Amendment) Provincial Councils (PCs) became part of our constitutional structure. 13A made drastic changes in the structure of government. PCs started to exercise legislative and executive functions within provinces. The line of executive authority, which starts from the President, runs to the provinces through the Governors appointed by the President. In the judgment on the 13th Amendment (1987) the Supreme Court observed as follows:

“The Governor is appointed by the President and holds office in accordance with Article 4(b) which provides that the executive power of the people shall be exercised by the President of the Republic, during the pleasure of the President (Article 154B(2)). The Governor derives his authority from the President and exercises the executive power vested in him as a delegate of the President. It is open to the President therefore by virtue of Article 4(b) of the Constitution to give directions and monitor the Governor’s exercise of this executive power vested in him. Although he is required by Article 154F(1) to exercise his functions in accordance with the advice of the Board of Ministers, this is subject to the qualification ‘except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion.’ Under the Constitution, the Governor as a representative of the President is required to act in his discretion in accordance with the instructions and directions of the President. Article 154F(2) mandates that the Governor’s discretion shall be on the President’s directions and that the decision of the Governor as to what is in his discretion shall be final and not be called in question in any Court on the ground that he ought or ought not to have acted on his discretion. So long as the President retains the power to give directions to the Governor regarding the exercise of his executive functions, and the Governor is bound by such directions superseding the advice of the Board of Ministers and where the failure of the Governor or Provincial Council to comply with or give effect to any directions given to the Governor or such Council by the President under Chapter XVII of the Constitution will entitle the President to hold that a situation has arisen in which the administration of the Province cannot be carried on in accordance with the provisions of the Constitution and take over the functions and powers of the Provincial Council (Article 154K and 154L), there can be no gainsaying the fact that the President remains supreme or sovereign in the executive field and the Provincial Council is only a body subordinate to him.”

Their Lordships in the Supreme Court further held that:

“Each Provincial Council is an administrative unit duplicating more or less a Cabinet system of Government, a Provincial Council, and a Governor as its Head.”

Therefore, Provincial Councils derive their executive powers from the President. The simple question that arises is that, if executive powers and powers of Government were removed from the President, from where (what source) would the Governors and Board of Ministers in the Provinces get their executive powers and powers to run provincial administration?

Conflicting answers

Two conflicting answers may be suggested. Either the entire provincial councils system would collapse, for lacking of executive authority and power to run provincial administration. However, as long as the provisions incorporated into the Constitution by the 13th Amendment subsist, this reasoning would not be practical. 

The other possibility would be detrimental to the Unitary State structure of the Constitution. If the 13th Amendment continues to function with existing powers or is made fully functional (by further granting land and Police powers to PCs), then arises the question from what source of executive the Provincial Councils (Governors and Board of Ministers) would derive executive powers and powers to run the organs of government within provinces?

If executive powers do not flow from the Centre (President) then such powers should be derived directly from the people in the Province(s). This is a situation where the sovereignty of the people would be fragmented, alienated and separated both vertically and horizontally. Vertically, as people would be presumed to empower Governors and Chief Ministers in the Provinces directly with executive power, without channelling such power through the President. 

Horizontally, as people of each province would exercise their sovereignty separated from those in the other provinces. This situation would permit international elements, acting with ulterior motives, to set up separate States, to give a distorted picture to the world, of Sri Lanka, as a country, consisting of people distinct from each other at provincial levels. 

Right of self-determination

The constitutional structure demanded by the TNA claims right of self-determination. The following passages are extracted from the TNA manifesto published for the Northern Provincial Councils Elections (2013):

“The Tamil People are entitled to the right to self-determination…..

The TNA firmly believes that sovereignty lies with the people and not with the State. It is not the Government in Colombo that holds the right to govern the Tamil people, but the people themselves. In this regard, the Thirteenth Amendment to the Constitution of Sri Lanka is flawed, in that power is concentrated at the Centre and its Agent, the Governor…..”

Such mala fide slogans lead to nowhere, but to create disunity and segmentation among the people. Social and political calamity, resulted by such attempts, serve only national and international elements, seeking to destabilise the State and implement mechanisms to exploit the resources and the people of the country. 

Therefore, the (Executive) Presidency in the present Constitution cannot be abolished in isolation. Such abolition would transform the Unitary State into a Federal or Confederal State structure, and pave way for convenient cessation with international assistance. The Executive Presidency cannot be abolished without simultaneous abolition of PCs, or replacement of PCs with an alternative decentralisation mechanism, that would function within a Unitary State structure, by deriving executive authority from a source at the centre, where the executive power would be concentrated.   

About the writer: 

The writer is an Attorney-at-Law.

5 Responses to “Abolishing Executive Presidency A pledge to fulfil TNA’s manifesto”

  1. Ananda-USA Says:

    NOTHING COULD BE WORSE for the Stability, Security and Development of Sri Lanka than ABOLISHING the Executive Presidency. INSTEAD, the Executive Presidency should be FURTHER STRENGTHENED.

    Furthemore, the Prime Minister’s post should be ELIMINATED as REDUNDANT and DIVISIVE. The post of Speaker of the House is both NECESSARY and SUFFICIENT to conduct the business of the Parliament!

  2. Randeniyage Says:

    I am surprised how blind love of useless politicians make people completely blind.

    Main problem we are facing today is the sovereignty of the motherland.

    It is not the person , family. TNA or set of crooks who are running the country but the CURRENT FEDERAL CONSTITUTION is the threat to sovereignty.

    Therefore, EP should be killed, not strengthened, together with the 13A.

    Another factor is the TAKING LOANS making us beggars with no bargaining power. When EP is killed we save 1000 billions of EP spending. We also save 100 billion per year useless spending of Palaath Sabha.

  3. Dilrook Says:

    Complete nonsense!

    People voted to abolish it in 1994, 2005 and 2015. There was no TNA in 1994.

    SL is already a federal state. It doesn’t become more federal by abolishing EP.

  4. Ananda-USA Says:

    I REPEAT,

    NOTHING COULD BE WORSE for the Stability, Security and Development of Sri Lanka than ABOLISHING the Executive Presidency. INSTEAD, the Executive Presidency should be FURTHER STRENGTHENED.

    Furthemore, the Prime Minister’s post should be ELIMINATED as REDUNDANT and DIVISIVE. The post of Speaker of the House is both NECESSARY and SUFFICIENT to conduct the business of the Parliament!

    Yes, NOT ONLY the 13A BUT ALSO the 19A should be REPEALED, the Provincial Council System DISMANTLED, and National Administration carried out through a District Administration System, in which EACH DISTRICT is administered by a District Governor reporting to the President who will function like the Government Agents prior to Independence in 1948.

    We don’t need MULTIPLE LAYERS of TAX-SUPPORTED ELECTED sub-regional government bureaucracies that lead to separatism, secession and unbearable bureaucratic burdens on the people.

    Strenthen the CENTRAL GOVERNMENT, ELIMINATE REGIONAL CENTERS of POWER that will ultimately convert our hallowed Motherland into a patchwork quilt of WARRING Bantustans.

    Yesterday, a problem arose with the proposed CREMATION of the remains of a head priest of a Buddhistemple in the North. Tamils in the area went to court to obtain an injunction on the basis that the temple land is adjacent to a (long vanished) Hindu kovil. They argued that UNDER THE CONSTITUTION Sri Lanka’s National Laws DON’T APPLY in the North and East. The court GRANTED the injunction, which the Buddhists of the area led by Buddhist monks IGNORED and CREMATED the head priest on his temple property ANYWAY!

    This is BUT ONE EXAMPLE of the IMPACT a FEDERAL CONSTITUTION that devolves power to REGIONS empowered to make LOCAL LAWS can have. ULTIMATELY, it will SEPARATE the communities of this country and create a COMMUNAL PATCHWORK of WARRING Bantustans! That will LEADS TO DISINTEGRATION of our Motherland as a UNITARY Sovereign Nation! THe CONSEQUENCES to our citizens will be CATASTROPHIC!

    STOP it FAST, STOP it NOW! REPEAL 13A and 19A!

  5. Dilrook Says:

    I too was of the wrong view that EP was beneficial for the country. But a further careful analysis of things prove otherwise.

    What did the executive president do to,

    1. resettle displaced Sinhalese and Muslims in the north? Nothing.
    2. punish LTTE, TNA, NGOs, etc. for war crimes? Nothing.
    3. eliminate racist laws (Thesawalami, Mukkuwa, Sharia, etc.)? Nothing.
    4. stop TNA/ITAK paddling separatism? Nothing.
    5. enforce the oath of alligiance? Nothing.
    6. prevent Vigneswaran and Najeeb from assuming office of the CM? Nothing.
    7. stop his minister chopping forests? Nothing.
    8. stop the spread of extremism since 2009 first kill in Beruwala? Nothing.
    9. repealing 13A? Nothing. In fact, the EP gave a commitment to India, the UN and the UNHRC to retain 13A in 2009 and later in 2011 promised to go beyond 13A to 13 Plus! This is why the parliament, even if wants to, cannot abrogate 13A.
    10. stop Sri Lanka illegaly signing ACSA with USA? Nothing.

    None of these things happened when the country was under the PM who was responsible to parliament and court.

    TNA, CWC, SLMC and ACMC are perennial kingmakers under the EP system.

    1. No matter who wins the presidential election, JVP must bring a motion to parliament to abolish EP on November 18. Nationwide peaceful aggitations must be carried out by all patriotic forces with the working masses. The EP cannot do anything if his party is a minority in parliament. He/she cannot even dissolve parliament until February 2020. With the PCs finishing their term, the country will be at a standstill without parliament!

    2. No money should be allocated in the 2020 budget for the president. Budget must be passed before December. Otherwise the president will not have an allocation. This will force the new EP to comply or face electoral annihilation. Voters will punish those who don’t support the abolition at the parliamentary election to follow.

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