by Neville Ladduwahetty Courtesy Island

Sri Lankans would be going to the polls on August fifth to elect a new parliament. However, what is to follow depends on which party secures the majority to form a stable government. The prevailing prediction is that the Sri Lanka Podujana Peramuna (SLPP) is most likely to secure at least a sufficient majority to form a government.

Such an outcome would mean that President Gotabaya Rajapaksa as the Executive and a legislature headed by Prime Minister Mahinda Rajapaksa would be jointly responsible for the governance of Sri Lanka. If the SLPP secures only a simple majority the processes of governance would be constrained by the limitations and contradictions inherent in the 1978 Constitution and in the Nineteenth Amendment (19A). This would hamper post COVID-19 recovery. Therefore, it is imperative that without a two-thirds (2/3) majority to amend 1978 Constitution and 19A to bring clarity to its provisions or even introduce a new Constitution, it would not be possible for Sri Lanka to emerge from the unprecedented challenges presented by the COVID-19 disaster.

If, on the other hand, the SLPP secures only a simple majority, a national government with a 2/3 majority could be formed by means of provisions of Article 46 (4) similar to the dubious precedent crafted by the Yahapalana government. Such an approach would compel a SLPP government to accommodate the interests of coalition partners at considerable cost both financially as well as having to compromise its agenda. Therefore, if Sri Lanka is to recover from the COVID-19 crisis it is best that the government has a 2/3 majority sufficient to give it the freedom to act free of constraints of coalition demands and fetters of the 1978 Constitution and19 A.

THE NEED to REVISITING 19A

The need to revisit the 1978 Constitution and 19A is because the ambiguities and contradictions in their provisions have caused constitutional experts and academics to arrive at vastly divergent interpretations and conclusions. For instance, some interpret that 19A has transformed what was essentially a Presidential system based on separation of power into a Parliamentary system where separation of power is blurred to such an extent that they describe the present system as a Parliamentary Democracy. Others on the other hand, maintain that what 19A achieved was to prevent arbitrariness of Executive action that had existed under the 1978 Constitution, and not to transfer power from the Executive to Parliament. This is confirmed by the Supreme Court ruling on 19A that stated: “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”. Therefore, it could be concluded that the intended transformation from a Presidential system to a Parliamentary system did not materialize notwithstanding such claims.

The 1972 Constitution is unambiguously based on a Parliamentary system while the 1978 Constitution is based on a Presidential system. However, the incorporation of certain provisions from the 1972 Constitution into to the 1978 Constitution, followed by 19A, has caused divergent interpretations. Hence, a few key issues are presented below to illustrate the need to revisit the 1978 Constitution and 19A in order to bring clarity to the current Constitutional provisions to ensure that the system of governance is either clearly Parliamentary or Presidential and not a mix of both.

CONSTITUTIONAL PROVISIONS of the 1972 CONSTITUTION

The relevant Articles in the 1972 Constitution are:

Article 91: “The President shall be responsible to the National State Assembly (Parliament) for the execution and performances of the powers and functions of his office under the Constitution…”.

Article 92 (1) states: “There shall be a Cabinet of Ministers charged with the direction and control of the government of the Republic which shall be collectively responsible to the National State Assembly and answerable to the National State Assembly on all matters for which they are responsible”.

Article 92 (2) states: “Of the Ministers, one who shall be the Head of the Cabinet of Ministers shall be the Prime Minister”.

Article 94 (1) states: “The Prime Minister shall determine the number of Ministers and Ministries and the assignment of subjects and functions to Ministers”.

Article 94 (2) states: “The President shall appoint from among the members of the National State Assembly Ministers to be in charge of the Ministries so determined”.

Article 94 (3): “The Prime Minister may at any time change the assignment of subjects and functions and recommend to the President changes to the composition of the Cabinet of Ministers…”.

CONSTITUTIONAL PROVISIONS of the 1978 CONSTITUTION

Article 42 states: “The President shall be responsible to Parliament for the due exercise, performance and discharge of the powers, duties and functions under the Constitution…’.

Article 43 (1) states: “There shall be a Cabinet of Ministers charged with the direction and control of the Government of the Republic which shall be collectively responsible and answerable to Parliament”.

Article 43 (2) states: “The President shall be a member of the Cabinet of ministers and shall be the Head of the Cabinet of Ministers”.

Article 44 (1) states: “The President from time to time, in consultation with the Prime Minister, where he considers such consultation to be necessary –

(a) “determine the number of Ministers of the Cabinet of Ministers and the Ministries and the assignment of subjects and functions to such Ministers” and

(b) “appoint from among the members of Parliament Ministers to be in charge of the Ministries so determined”.

Article 44 (3) states: “The President may at any time, change the assignment of subjects and functions and the composition of the Cabinet of Ministers…”.

CONSTITUTIONAL PROVISIONS of 19A

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

Article 42 (2) states: “The Cabinet of Ministers shall be collectively responsible and answerable to Parliament”.

Article 43 (1) states: “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”.

Article 43 (2) states: “The President shall on the advice of the Prime Minister appoint from among Members of Parliament, Ministers, to be in charge of the Ministries so determined”.

Article 43 (3) states: “The President may at any time change the assignment of subjects and functions and the composition of the Cabinet of Ministers…”.

IMPACT of CONTRADICTORY PROVISIONS

The constitutional provisions of the 1972 Constitution presented above are consistent with a Parliamentary system. Notwithstanding this fact, such provisions that are appropriate for a Parliamentary system have been incorporated into the 1978 Constitution and 19A that are essentially Presidential. This has caused both the 1978 Constitution and 19A to be seriously compromised. It is therefore imperative that amendments are introduced to ensure that the system of governance is either Parliamentary or Presidential in all respects.

For instance, commenting on Article 43 of the 1978 Constitution (presented above), the Supreme Court in S.D. No. 04/2015 stated: “This important Article underscores that the Cabinet collectively is charged with the exercise of Executive power, which is expressed as the direction and control of the Government of the Republic and the collective responsibility of Cabinet of which the President is the Head. It establishes conclusively that the President is not the sole repository of Executive power under the Constitution. It is the Cabinet of Ministers collectively, and not the President alone, which is charged with the direction and control of the Government. This Cabinet is answerable to Parliament. Therefore, the Constitution itself recognizes that Executive power is exercised by the President and by the Cabinet of Ministers, and that the President shall be responsible to Parliament and the Cabinet of Ministers, collectively responsible and answerable to Parliament with regard to the exercise of such powers…”.

On the other hand, the Courts have accepted that Article 3 that deals with the sovereignty of the People should be read with Article 4. Therefore, the guiding principle in the exercise of Executive power in the 1978 Constitution should be Article 4 (b). Article 4 (b) 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”. This Article specifically reposes Executive power of the People ONLY in the President. Therefore, Executive power must necessarily be exercised solely by the President and not jointly shared with the Cabinet of Ministers. This means that anyone else exercising executive power must derive its authority from the President.

The comments of the Supreme Court in S.D. No. 04/2015 also stated: “It is in this background that the Court in the Nineteenth Amendment Determination came to a conclusion that the transfer, relinquishment or removal of the 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 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 to 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”.

If, as stated above by the Court, the President as the Head of the Executive is “sovereign in the executive field”, the President who represents one of the three branches of the Government – the Executive, is co-equal with the Legislature and the Judiciary under provisions of separation of power. Therefore, the President cannot be responsible to another organ of government – the Parliament. Furthermore, since the Cabinet of Ministers derive their authority from the President, the Cabinet cannot be responsible and answerable to Parliament either. Under the circumstances, Article 33A that calls for the President to be responsible to Parliament “for the due exercise performance and discharge of his powers, duties and functions” is a violation of the principle of separation of power.

Another important issue that arises from the fact that the President is sovereign in the executive field is the constitutional provision that his executive powers include the defence of Sri Lanka. Therefore, the President has a right granted by the Constitution to be the Minister of Defence regardless of whether the President is a Member of Parliament or not. The prerogative of such a decision should be left to the President, instead of having to delegate it to someone else, invariably less competent in issues relating to security. Since the provision to select Cabinet Members from among members of Parliament is a carry-over from the defunct 1972 Constitution this constraint should be repealed since it has no relevance in a Presidential system.

ARTICLE 46 – UNIQUE ONLY TO 19A.

Article 46 (1) (a) and (b) limits the number of Cabinet of Ministers to thirty and sets an aggregate limit of forty on the number of Ministers who are not members of the Cabinet of Ministers and Deputy Ministers.

Having sets limits, the framers of 19A provided a device by means of Article 46 (4) and (5) to enable Parliament by Resolution to exceed the very limits they themselves stipulated above. In fact, this device is so crafty that it enables even a minority government with the largest majority to form a National Government with even a 2/3 majority by forming a coalition with other recognized political parties. Had the Article stated “the political party with the largest majority together with ALL other political parties” the task of forming a National Government would in all likelihood been unrealistic. This device was exploited to the fullest advantage by the former Yahapalana government. The net effect of the current provisions in 19A is to ridicule their own attempts to appear well intentioned by proposing a leaner Cabinet and make a mockery of the “will of the people” by introducing a corrupted way out of the limits set by themselves.

19A – THE CONSTITUTIONAL COUNCIL

Article 41 B (1) states: “No person shall be appointed by the President as the Chairman or the member of any of the Commissions specified in the Schedule to this Article, except on a recommendation of the Council”.

Article 41 C (1) states: “No person shall be appointed by the President to any of the Officers specified in the Schedule to this Article…unless such appointment has been approved by the Council”.

The Court ruled that the transfer, relinquishment or removal of power attributed to one organ to another violates Article 3 when read with Article 4 of the Constitution. If this is so, would not the transfer of power that the President had, to appoint Commissions and Officers prior to 19A, to another body that is not even another organ of Government as recognized by Article 3 read with Article 4, amount to a violation of the sovereignty of the People? Furthermore, the operation of the Council has become so dysfunctional that the country today does not have a functioning Inspector General of Police. The reason for this is a system failure because the President who makes the appointment could keep on rejecting nominations by the Council causing posts being vacant as in the case of the IGP. Therefore, this provision too needs to be seriously amended. An alternative would be to restore the powers the President had under Articles 54, 55 and 107 of the 1978 Constitution and for him to make appointments subject to the approval of the appropriate Oversight Committees of Parliament and repeal Chapter VIIA of 19A.

19A – DISSOLUTION of PARLIAMENT

According to 19A Article 70 (1) states: “The President may by Proclamation, summon, prorogue and dissolve Parliament. Provided that the President shall not dissolve until the expiration of a period of not less than four years and six months…unless Parliament requests the President to do so by a resolution passed by not less than two-third of the whole number of Members voting in favour”.

This Article presents two serious issues. One, it places the President at a disadvantage in relation to Parliament since Parliament is not constrained by a time bar whereas the President is. Therefore, Parliament could request the President to dissolve Parliament at any time with a 2/3 majority whereas the President is compelled to wait four and half years to dissolve Parliament. Such drastic disadvantages are not in keeping with principles of separation of power among co-equals. Such inequality is unacceptable for two separate organs of government elected separately by the People. The second serious issue is that securing a 2/3 majority for a political party under provisions of proportional representation is bound to be a rarity. This compels Parliament to continue however dysfunctional it is.

Therefore, the net effect of Article 70 (1) as currently presented is for the country to be governed by a government even if the situation is so dire that it warrants dissolution of Parliament because of the constitutional straightjacket of this Article. Consequently, as always, it is the People who have to endure.

CONCLUSION

The outcome of the forthcoming General Election to elect a new Parliament would have a serious impact on how effectively Sri Lanka recovers from the challenges imposed by the unprecedented COVID -19 crisis. The most significant single factor that would influence the recovery process is the current Constitution. The 1978 Constitution and 19A contain constitutional provisions that are a mix appropriate to both Parliamentary and Presidential systems. This has made governing processes convoluted. Therefore, it is imperative that the current provisions are amended, so that the Constitution is Presidential in all respects and not a mix of both Parliamentary and Presidential as currently exists, with the appropriate checks and balances by the Parliament and the Judiciary, in a way that would not hamper effective Executive action.

The reason for the existence of Parliamentary and Presidential systems in the present Constitution is because the operation of a Presidential system based on separation of power, is not commonly understood despite it being in existence for over four decades. A glaring example of the lack of appreciation of what separation of power means is selection of the Cabinet of Ministers from among Members of Parliament. This results in the same individual serving two separate organs of government resulting in conflict of interest. This practice should cease. If Members of Parliament are to be Members of the Cabinet, they should relinquish their association with Parliament as practiced by other countries with Presidential systems.

Under the circumstances, a government with a simple majority would not be in a position to introduce the needed amendments without which the recovery process would be hampered by the existing constitutional ambiguities and contradictions. Therefore, it is only a 2/3 Parliamentary majority that would facilitate the introduction of the needed amendments without which it would not be possible for Sri Lanka to emerge from the unprecedented challenges presented by COVID-19 pandemic.