By Neville Ladduwahetty Courtesy The Island

Recent political developments have brought into sharp focus the need to revisit the 19th Amendment (19A) despite the unanimous approval it had received in Parliament in May 2015, with the notable exception of one brave Naval Officer Rear Admiral MP Sarath Weerasekara. The primary aim of the 19A was to transfer power from an Executive President to a Prime Minister and a Cabinet of Ministers. The first attempt to indulge in such an exercise was in 2002. Having failed in 2002 a fresh attempt was made in 2015. The 2015 attempt succeeded subject to the Supreme Court determining that some named provisions required approval of the people at a Referendum. Notwithstanding this judicial intervention the fact that certain provisions that should have received the attention it deserved escaped attention makes it necessary to revisit 19A in order to address at least some of the omissions that matter for the sake of clarity.

A few key issues that have a significant bearing on the functioning of the State are:

1. Article 33A: The President shall be responsible to Parliament.

2. Article 42 (2) The Cabinet of Ministers shall be responsible to Parliament

3. Article 33 (2) (c) and Article 70 relating to dissolution of Parliament

4. Chapter VIIA – The Constitutional Council

5. Article 46 (5) Composition of a National Government.

Although each of these issues had been addressed in previous publications they are herein presented collectively to emphasize the need to revisit these issues in order to prevent confusion of the sort that prevailed in the fifty plus days since October 26, 2018. Therefore, repeating material already published is inevitable for which I seek the reader’s indulgence.

1. ARTICLE 33A: PRESIDENT responsible to PARLIAMENT

Article 33A states: “”The President shall be responsible to Parliament for the exercise, performance and discharge of his powers, duties and functions under the Constitution…”.

The Supreme Court conveying its opinion on the 19th Amendment of 2015 stated:

“In fact Mr. Sumanthiran contended that Article 42 (1978 Constitution) is identical to the provision in the 1st Republican Constitution of 1972, which stated in Article 91 that ‘the President shall be responsible to the National State Assembly for the due execution and performance of the powers and functions of his office under the Constitution…Thus the position of the President vis-à-vis the legislature, in which the President is responsible to the legislature, was introduced by the 1978 Constitution”(S.D. No. 04/2015).

However, while the proposition that “the President is responsible to the National State Assembly” is appropriate for a Parliamentary system that collectively exercises legislative and executive powers, it is conceptually inconsistent within a Presidential system where legislative and executive powers are exercised by separate organs of government with equal status. In the particular case of the 1972 Constitution the President was a citizen “nominated by the Prime Minister for the Office” (Article 25). Such a “nominated” President should be responsible to the National State Assembly that is responsible for exercising the sovereignty of the People as the “the supreme instrument of State power of the Republic” (Articles 4 and 5 of the 1072 Constitution).

This is in sharp contrast to a President that is directly elected by the People and on whom the People have conferred their sovereign executive power as stated in the 1978 Constitution. This power starts with the sovereignty of the People as stated in Article 3 (below) of the 1978 Constitution.

Article 3 states: “In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise”.

Article 4 states” “The sovereignty of the People shall be exercised and enjoyed in the following manner:

(a) “the legislative power of the People shall be exercised by Parliament, consisting of elected representatives of the People and by the People at a Referendum”

(b) “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”

If the first rule when interpreting a Constitution as stated unanimously by a seven member Supreme Court (SC FR 351-3612/2018) is that “words in a statute must be given their ordinary meaning”, it is clearly evident from the foregoing that the sovereignty of the People in respect of their Legislative and Executive power are to be exercised separately. Furthermore, based on the opinion of the Court relating to the relationship between the general and the specific, while Article 3 – an entrenched Article is the general provision relating to sovereignty the specific form and manner in which the sovereignty of the People is exercised is in Article 4. Therefore Article 3 has to be read with Article 4; a fact accepted and repeated by the Courts. Therefore, since powers under such a system are separate and inalienable, a President as the directly elected Head of one organ of government that is responsible for the exercise of Executive powers of the People cannot be responsible to a separate organ of government that is responsible for the inalienable Legislative power of the People.

Whatever opinion one may have of Montesquieu and the theory of distribution of power applying the “ordinary meaning” to the words in Article 3read with Article 4 is what matters. The blind incorporation of an Article from a Parliamentary system into a Presidential system as in the 1978 Constitution and repeated in 19A without awareness of the altered context reflects poorly on the framers of both and all those who cite it repeatedly without question. Therefore, Article 42 in the 1978 Constitution and Article 33A in the 19th Amendment should thus be repealed for constitutional correctness and clarity.

Article 42 (2) – CABINET of MINISTERS shall be responsible to PARLIAMENT.

Article 42(2) of the 19th Amendment states:”The Cabinet of Ministers shall be collectively responsible and answerable to Parliament” and Article 42(3) states: “the President shall be a member of the Cabinet of Ministers and shall be the Head of the Cabinet of Ministers”. This is a direct carryover of a relic from the 1972 Parliamentary system (Article 92) and transposed out of context into a Presidential system in 1978; a practice of cut and paste common to Sri Lanka’s framers of Constitutions and Constitutional Amendments.

Commenting on how the Cabinet of Ministers derives its power the Supreme Court in 2015 stated:

“It is in this backdrop the Court in the Nineteenth Amendment Determination came to the 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 (sic) 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” (S.D. No. 04/2015).

If the President in a Presidential system cannot be constitutionally “responsible” or “answerable” to any other organ of government, how can the Cabinet that “derives its authority from the President be “collectively responsible and answerable to Parliament”? Furthermore, the fact that if the President is not satisfied with the “direction and control of the Government”, he is entitled to “at any time change the assignment of subjects and functions and the composition of the Cabinet of Ministers…” as provided in Article 43(3) of the 19th Amendment and Article 44(3) of the 1978 Constitution) means the Cabinet of Ministers derive their powers and function as agents of the President.

Therefore, while the undue importance given to the Prime Minister regarding the selection of Cabinet Ministers is misplaced his primary function is to secure the support and approval of Parliament whenever needed.

In the particular context of Sri Lanka the Cabinet is made up of Members of Parliament. They do not sever their connections with Parliament when they become part of the Cabinet. Consequently, there is a conflict of interest between their constitutional Legislative responsibilities and delegated functions as part of the executive under the President. The only way to overcome such conflicts of interest is to make the Cabinet independent of Parliament; a principle accepted by the USA and France. Therefore, Article 42 (2) of 19A should be revised and the manner of selecting the Cabinet of Ministers should be revisited; an issue raised earlier and more recently by Prof. Rajiva Wijesinha (The Island, December 21, 2018).

2. DISSOLUTION of PARLIAMENT

The debate that prevailed in the country following the dissolution of Parliament on November 9th 2018 was resolved by the unanimous decision of a Supreme Court panel of seven judges. Their judgment addressed the relationship between Articles 33(2)(c) and 70. The key feature of the Court’s determination was:

“Thus it is evident that while article 33(2)(c) is by way of general provision in which the President’s power of summoning, proroguing and dissolving Parliament is enumerated in Article 33(2) along with seven other powers vested in the President, the specific and detailed provisions of Article 70(1) to Article 70(7) comprehensively specify the manner and method by which the President may lawfully exercise his power of summoning, proroguing and dissolving Parliament”.

The Court also stated: “The resulting conclusion must be that the President’s power…can only be exercised under and in terms of the scheme set out in Article 70 and is circumscribed and limited by the provisions of Article 70 and can be exercised only within and in conformity with the provisions of Article 70”.

The relationship between the general and specific also exists between Articles 3 and Article 4 of the Constitution. While the general provision in Article 3 is that “sovereignty is in the People and is inalienable” the specific form and manner in which it is exercised is in Article 4. Hence the often repeated statement by Courts that Article 3 must be read with Article 4. Applying this concept to Article 33(2)(c) and Article 70 (1) to Article 70 (7) the former is the general provision and the latter is the specific form and manner in which Parliament is to dissolved. Therefore, the two Articles must be read together and not separately as implied by the Court’s determination because the Article 70 states that the President “may by Proclamation …dissolve Parliament”.

The Gazette notification of November 9th 2018 states that it is a Proclamation by the President. The Proclamation states: “KNOW YE that by virtue of the powers vested in me by paragraph (5) of Article 70 of the Constitution…to be read with paragraph (2)(c) of Article 33 of the Constitution…” thus confirming that both Articles need to be read together and not separately.

The context in which the above Proclamation came into being was when the UPFA officially withdrew on October 26, 2018 from the “National Government” that had functioned for nearly three plus years. This was followed by the removal of the Prime Minister of the National Government that had existed from August 2015 and the appointment of a new Prime Minister on 26th October. Neither Prime Minister was able to muster a majority in Parliament to form a functioning government. Consequently there was no functioning government from October 26th until November 13th when a Court order staying the operation of the President’s action to dissolve Parliament was issued.

According to the Court’s determination the options open to the President are either to wait however long it takes for the formation of a functioning government or wait for Parliament to secure a two third majority and “request” him to dissolve Parliament hoping that a fresh election would return a functioning government. The Court’s determination that “the President’s power…can only be exercised under and in terms of the scheme set out in Article 70” means that the President’s powers have been severely curtailed to the point that he is made impotent and reduced to the position of an agent of Parliament with power to dissolve Parliament when asked to do so any time within four and a half years. The claim “that Article 33(2)(c) was intentionally inserted…as a new provision to preserve with the President a power to dissolve Parliament at any time at his sole discretion” was found unacceptable to the 2018 Court: a fact that disturbs the needed balance between different organs that represent the sovereignty of the people.

Since Courts have interpreted such removals and transfers of power from one organ to another as being “inconsistent with Article 3 read with Article 4, should not the provisions in 19A relating to dissolution of Parliament be a matter that should have been determined by the People at a Referendum (S.D. No. 04/2015)? Despite the Court’s opinion cited above the Court in 2015 did not find this issue among others to be a “matter that would require consideration” notwithstanding its significance. The reason perhaps being that there was no erosion of Presidential power because of the inclusion of Article 33(2)(c) as part of additional Presidential power that did not exist prior to 19A, thus endorsing that the general provision of 33(2)(c) must be read with the specific of Article 70. In such a background, the ruling by the Court in 2018 is a significant departure from judicial precedence that prevailed until 2018. As far as the public is concerned the divergence in the interpretation between the Court of 2015 that President’s power in relation to dissolution of power was not affected and the interpretation by the Court of 2018 that the President’s power is in fact circumscribed and limited by Article 70 is bound to have far reaching ramifications.

Accepting the fact that Sri Lanka has experienced minority governments in 1994, 2000, 2001, 2004 and 2015 and that many more are likely to follow in the future, it is imperative that the prevailing lack of clarity in constitutional provisions are revisited forthwith if Sri Lanka is to protect its People and the dignity of the State. (To be continued)