{"id":50251,"date":"2015-12-16T22:50:20","date_gmt":"2015-12-17T04:50:20","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=50251"},"modified":"2015-12-16T15:32:26","modified_gmt":"2015-12-16T22:32:26","slug":"abolition-of-the-presidential-system-requires-a-referendum","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2015\/12\/16\/abolition-of-the-presidential-system-requires-a-referendum\/","title":{"rendered":"Abolition of the presidential system requires a referendum"},"content":{"rendered":"

by Neville Ladduwahetty\u00a0Courtesy Island<\/em><\/span><\/h2>\n

One of the main planks of the 100 day programme of President Sirisena was the abolition of the presidential system of government. The main driving force initiating the change from a Presidential to a Parliamentary system was Ven. Sobitha, who together with a band of highly committed concerned citizens came to the conclusion that abuse of power was inevitable under a presidential system because the system vests all Executive power in one individual under provisions of separation of powers that recognize that Legislative, Executive and Judicial powers are separate and equal. They were convinced that it is only by abolishing the whole system and transferring Executive powers from an individual to a Prime Minister and a Cabinet of Ministers under a Parliamentary system that the exercise of Executive power could be rationalized.<\/p>\n

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The question though is whether Ven. Sobitha and those with him realized the need for a referendum to bring about such a radical transformation. The change from a Parliamentary to a Presidential system was brought about in 1977 without a referendum because the 1972 Constitution did not contain the provision for a referendum. Consequently, it was possible to institute the change without seeking the opinion of the People albeit it would have been in keeping with true principles of Democracy had they done so. This however, is not the case with the current Constitution. The need for a referendum as elaborated in Article 4 is an inherent feature of the franchise of the People. Furthermore, franchise is also a constituent component of the sovereignty of the People as contained in Article 3. Therefore, it could be concluded with certainty that a transformation that is as radical as abolishing a Presidential system in preference to a Parliamentary system cannot be instituted without seeking the consent of the governed.<\/p>\n

Political parties in general consider it a risk to seek the opinion of the People through referenda because of the uncertainties of outcomes. This was clearly evident in the case of the 19th Amendment. The original draft of the 19th Amendment attempted to transfer considerable powers from the President to a Prime Minister and a Cabinet of Ministers. This attempt was foiled by the Supreme Court when it ruled that several of the proposed amendments would need the approval of the People at a referendum based on the principle that Article 4 must be read with Article 3.<\/p>\n

LESSONS from the 19th AMENDMENT<\/p>\n

In the case of the 19th Amendment the determination of the Supreme Court was “that 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 provided the form and manner of exercising of the sovereignty of the people, the ultimate act or decision of his executive functions must be retained by the President”. Based on this determination the Supreme Court found certain Articles in the 19th Amendment to qualify for a 2\/3 approval of Parliament and the approval of the People at a referendum because these Articles provided for the President to “transfer” executive power to another “organ or body” \u2013 the Prime Minister. These determinations caused the Government to delete those particular provisions that attempted to “transfer” executive power from the President to another “organ” rather than risk submitting them to a referendum.<\/p>\n

Whether the drafters of the 19th Amendment were expecting to get by hoping that the Supreme Court would interpret that Article 4 has no bearing on Article 3, and therefore rule that a referendum was not needed as ruled by a previous Court on the 13th Amendment that determined that Article 4 was independent of Article 3, is anyone\u2019s guess. Whatever the case may be, the lesson to be learnt from the determinations made by the Supreme Court in the case of the 19th Amendment was that Article 4 should be read with Article 3. Therefore, drafters who are planning to abolish the Presidential system and introduce a Parliamentary system that is radically different both in form and substance should expect the Supreme Court to rule the need for a referendum in addition the 2\/3 approval by Parliament. Not to do so would amount to challenging the competence, judicial integrity and the credibility of the Supreme Court.<\/p>\n

There is however the possibility of another explanation for the form and content of the final version of the 19th Amendment. That is, that the drafters being constitutional experts were fully aware that some of the amendments proposed would need a referendum. By submitting the draft of the 19th Amendment in the form they did the expectation presumably was that the Supreme Court would make the unpalatable determinations rather than advising the Government that the current Constitution makes it almost impossible to provide for the desired amendments without reference to the People. Factoring into this the reluctance of Governments to risk outcomes of referenda the net effect of the 19th Amendment has been for the President to retain most of its original powers except for limitations on term limits, the disassociation with the creation of Independent Commissions and a few other amendments. The intention of the entire exercise may well have been to retain as much power as possible in the President while creating the appearance of dilution of Executive power. Whether the process was intentional or not, is conjecture.<\/p>\n

ABOLITION of PRESIDENTIAL SYSTEM through a CONSTITUENT ASSEMBLY<\/p>\n

The print media report that Parliament is to be converted into a Constituent Assembly with a view to formulate a new Constitution. This would require the repeal of the existing constitution and its replacement with a constitution that is based on a Parliamentary system of Government. Whatever approach is adopted it finally has to be presented in the form of a Bill “for the repeal and replacement of the Constitution”. Such an attempt has to comply with the provisions of Article 120 (a) of the current Constitution.<\/p>\n

Article 120 (a) states: “in the case of a Bill described in its long title as being for the amendment of any provision of the Constitution, or for the repeal and replacement of the Constitution, the only question which the Supreme Court may determine is whether such Bill requires approval by the People at a referendum by virtue of the provisions of Article 83”.<\/p>\n

Judging from the determination made by the Supreme Court in the case of the 19th Amendment that a referendum would be needed for the “transfer” only some Executive powers of the President to another “organ”, the Prime Minister, it could be concluded that the Supreme Court would rule that a referendum would be an absolute necessity since it is a case of repealing and replacing a Presidential system that is based on separation of powers with a Parliamentary system where all power is concentrated in the Parliament. The fact that the two systems are as different as chalk and cheese is all the more reason that approval of the People is needed to effect such a radical change.<\/p>\n

Another compelling reason to seek the approval of the People at a referendum is because Article 3 is an entrenched Article meaning any revision to Article 3 would require 2\/3 approval of Parliament and a referendum. Article 3 states: “In the Republic of Sri Lanka sovereignty is in the People and is immutable. Sovereignty includes the powers of government, fundamental rights and franchise”. The “powers of Government” referred to in Article 3 are spelt out separately in Article 4 (a) to (c) as Legislative, Executive and Judicial. A transformation from such a system of Government to one where all 3 powers are concentrated in the Parliament is too radical for the change not to be approved by the People at a referendum. It is reported that realizing the seriousness of the transformation Ven. Sobitha too had wanted the endorsement of the People to effect the change from a Presidential to a Parliamentary system of Government.<\/p>\n

Furthermore, as stated above, sovereignty of the People in the current Presidential Constitution “includes powers of government, fundamental rights and franchise”. On the other hand, under a Parliamentary system sovereignty of the People would be exercised by Parliament if the 1972 Constitution is to be the guide. Such a dramatic change would amount to the total surrender of the People\u2019s sovereignty to an elected body that often is a coalition that inevitably is elected by only a section of the People. Since the sovereignty under the current Constitution includes fundamental rights and franchise it means the People have some degree of control over some aspects of their sovereignty, which would not be the case if sovereignty is totally surrendered to a National State Assembly as it was in under the 1972 Constitution. This above all else should warrant holding a referendum in order to give the People the opportunity to freely give their consent before a change in the system of Government is instituted.<\/p>\n

Yet another compelling reason is that transferring Executive power from a President elected directly by the People to an “organ” such as Parliament without a referendum would be violation of the precedent set in the determination of the 19th Amendment. Under a Presidential system it is the President who exercises “the executive powers of the People, including the defence of Sri Lanka”, whereas in a Parliamentary system it is the Parliament that exercises Executive powers as well as all other powers of the People including the sovereignty of the People. This would amount to violating the sovereignty of the People as presently set out in the current Constitution. The concept of vesting Executive powers in an individual directly elected by the People was deliberately adopted in order better serve the interests of the People by providing stability to at least one branch of Government at any given time.<\/p>\n

CONCLUSION<\/p>\n

Attempts are being made to repeal the existing Presidential system and replace it with a Parliamentary system of Government. What is being explored by the Government is how such a change could be brought about without undergoing the risk of a referendum. What is being overlooked is that according to the Universal Declaration of Human Rights Article 21 (3): “The will of the People shall be the basis for the authority of government\u2026..”. Therefore, it is imperative that the will of the People is sought at a referendum if the intention of the Government is to change the present form of Government to a Parliamentary system.<\/p>\n

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by Neville Ladduwahetty\u00a0Courtesy Island One of the main planks of the 100 day programme of President Sirisena was the abolition of the presidential system of government. The main driving force initiating the change from a Presidential to a Parliamentary system was Ven. Sobitha, who together with a band of highly committed concerned citizens came to […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[12],"tags":[],"class_list":["post-50251","post","type-post","status-publish","format-standard","hentry","category-forum"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/50251","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=50251"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/50251\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=50251"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=50251"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=50251"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}