{"id":90160,"date":"2019-06-10T16:34:34","date_gmt":"2019-06-10T23:34:34","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=90160"},"modified":"2019-06-10T16:34:34","modified_gmt":"2019-06-10T23:34:34","slug":"the-next-president-will-have-all-the-powers-president-sirisena-now-enjoys","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2019\/06\/10\/the-next-president-will-have-all-the-powers-president-sirisena-now-enjoys\/","title":{"rendered":"The Next President Will Have All the Powers President Sirisena Now Enjoys"},"content":{"rendered":"

Dilrook Kannangara<\/em><\/span><\/h2>\n\n\n

Nihal Jayawickrama has written\nrecently claiming the post of President will be merely ceremonial when\nPresident Sirisena vacates office. The government will implement policies and\nprogrammes of the prime minister and his Cabinet ministers (all of them\nparliamentarians). The president will be notified of decisions. Though the\npresident will retain some powers like declaration of war, appointment of\nambassadors, etc. all these can be disrupted by the Cabinet of ministers by\nwithholding resources. These are mere fabrications of reality. <\/p>\n\n\n\n

In truth, the next president will\nhave all the powers of President Sirisena until February 2020 and upon the\nelection of a new parliament (at a time of the next president\u2019s choosing) the\npresident will get a Cabinet of his choice to implement his policies and\nprogrammes.<\/p>\n\n\n\n

This is by no means a justification\nof the disastrous executive presidency that ruined this nation. Executive\npresidency must be totally removed. However, the reality is it is as strong as\never and there are no Constitutional provisions or transitional arrangements to\nreduce the powers of the president from what President Sirisena now enjoys.<\/p>\n\n\n\n

As a legal expert, I can state these\nvery clearly and with responsibility.<\/p>\n\n\n\n

Claim 1: Under Article 45, only a Member of Parliament\nmay be appointed a Minister<\/strong><\/p>\n\n\n\n

There\nis no such provision. <\/p>\n\n\n\n

Article\n45. (1) The President may, on the advice of the Prime Minister, appoint from\namong Members of Parliament, Deputy Ministers to assist Ministers of the\nCabinet of Ministers in the performance of their duties.<\/p>\n\n\n\n

It\ndoes not prevent the president from retaining any of the ministries. He may\nappoint a MP to become a minister for a subject or he may not appoint one and\nretain it. What can anybody do about it? Absolutely nothing.<\/p>\n\n\n\n

However,\nwhat is more important is the President\u2019s position in regards to the Cabinet\nand the Prime Minister.<\/p>\n\n\n\n

Article\n42 (3)  The  President  shall  be  a \nmember  of  the  Cabinet  of  Ministers and shall be\nthe Head of the Cabinet of Ministers.<\/p>\n\n\n\n

(4) \nThe  President  shall  appoint  as  Prime \nMinister  the  Member of Parliament, who, in the President\u2019s opinion,\nis most likely to command the confidence of Parliament.<\/p>\n\n\n\n

The\nlast provision remains unchanged. This is how Premadasa (1978), Wijetunga\n(1989), Rathnasiri (1999), Mahinda (2004), Jayarathna (2010) and Mahinda (2018)\nwere appointed Prime Minister by the president. The next president can do the\nvery same and no one can question his opinion.<\/p>\n\n\n\n

The\nPresident as Head of Cabinet can implement his policy and remove ministers who\ndo not implement his policy the way he wants it implemented.<\/p>\n\n\n\n

Article\n43. (1)  The  President  shall,  in \nconsultation  with  the  Prime  Minister, where he\nconsiders such consultation to be necessary, determine the number of Ministers\nof the Cabinet of Ministers and the Ministries and the assignment of subjects\nand functions to such Ministers.  <\/p>\n\n\n\n

Thereafter,\nthe president may totally disregard the prime minister in deciding how many\nministries should be there and how to assign them. <\/p>\n\n\n\n

Article\n43 (3)  The  President  may  at  any  time \nchange  the  assignment  of  subjects  and \nfunctions  and  the  composition  of  the \nCabinet  of Ministers. Such changes shall not affect the continuity of the\nCabinet  of  Ministers  and  the  continuity \nof  its  responsibility  to  Parliament.<\/p>\n\n\n\n

So,\nthe President can remove minister at will and there is absolutely nothing\nanybody can do about it. The need to consult the PM is optional. Poor PM!\nIndia\u2019s Constitution does not allow this right to the President. President\nGopallawa didn\u2019t have this right.<\/p>\n\n\n\n

Claim 2: In terms of Article 42, which the 19th Amendment\nappears to have overlooked, the next President will continue to be the Head of\nthe Cabinet of Ministers\u201d. This probably means that he may chair meetings of\nthe Cabinet, as the Speaker does meetings of Parliament<\/strong><\/p>\n\n\n\n

As\nexplained above, the President decides the subjects of ministries and who hold\nwhat ministry and change his mind as frequently as he possibly can. There is\nnothing that hinders him. Equating the President as Head of the Cabinet to the\nSpeaker of parliament in terms of the power to control its affairs is way off\nreality. After all the ministers have been appointed and assigned ministries by\nthe president. The Speaker does not appoint the parliament! The parliament\nappoints the Speaker.<\/p>\n\n\n\n

Claim 3: [The President] may offer his opinion on Cabinet\nMemoranda and even initiate a discussion on a subject close to his heart. \nWhat he will not be able to do is seek to implement his policy\u201d in respect of\na particular subject, since that would be to trespass on the territory of a\nduly appointed Cabinet Minister to whom that subject has been assigned.<\/strong><\/p>\n\n\n\n

It\nis easier than that. If the minister fails to implement the policy of the\npresident, the latter simply removes the ministry from him and assigns it to\nsomeone else willing to implement the president\u2019s policy or keeps it without\nassigning it. End of story. There is nothing a MP would do to get and retain a\nministry. Fearing the loss of the ministry, all ministers including the prime\nminister will implement the policy of the president. Otherwise none of them\nwill be able to face their wife and relatives let alone the voters!<\/p>\n\n\n\n

Claim 4: The 19th Amendment has already: (i) removed the\nlegal immunity enjoyed by the President, etc.<\/strong><\/p>\n\n\n\n

Not\nso. There is no provision that brings the president under the purview of the\nparliament or the Supreme Court. That would be the legislature trespassing into\nthe territory of the Executive and the Judiciary so doing. If 19A so proposed,\nit would have been struck down by the Supreme Court. In fact, certain\nprovisions of the bill were struck down by the Supreme Court as they sought to\ntrespass into other branches of the government. The surviving little of the 19A\nare harmless to the executive power of the president.<\/p>\n\n\n\n

Claim 5: [The President] may declare war. However, his\ndeclaration of war will not be effective or operational unless the Minister of\nDefence provides the necessary manpower and weaponry to engage in warfare.<\/strong><\/p>\n\n\n\n

It\nis far easier than that. Change the minister and appoint from the vast\nparliament of 225 willing MPs a minister who carries out the policy of the\npresident or retain the subject of defence to himself. Given the near $2\nbillion worth of the ministry, the minister will be only too willing to keep it\nand do what the president says than lose it by non-compliance.<\/p>\n\n\n\n

Claim 6: Has no one yet realized that under the 19th\nAmendment, the process of replacing presidential government with parliamentary\ngovernment will reach fruition on the day that President Sirisena ceases to\nhold office?<\/strong><\/p>\n\n\n\n

There\nare no such transitional provisions in the Constitution. I challenge anyone to\nshow such provisions. President Sirisena put a similar matter to the Supreme\nCourt. He wanted to know if he had 5 years as amended by the 19A or 6 years as\nit was when he assumed office. The Supreme Court decided that after 19A, the\npresident\u2019s term if 5 years and not 6 and there\u2019s no transitional provision. A\nsimilar verdict was given on the president\u2019s ability to dissolve parliament\nbefore 4 and a half years. Sirisena argued that since there was no such\nprovision in the Constitution when he assumed office, he should not be\nsubjected to it. The court correctly rejected it. There are no transitional\nprovisions for or against president Sirisena. The next president enjoys all the\npowers President Sirisena enjoys today.<\/p>\n\n\n\n

Strangely,\nthere is no mentioning of the president\u2019s right to pardon convicted criminals\nand that includes the president himself. There is no more imaginable power than\nthis. It means even if the judiciary decides on a felony, the President can\nrelease him.<\/p>\n\n\n\n

Another\nkey power is the president\u2019s ability to declare presidential and parliament\nelections. The president will time the election so well to get him the maximum\nelectoral advantage.<\/p>\n\n\n\n

Once again, this is not to be taken\nas support for executive presidency. On the contrary, executive presidency is\nthe bane of Sri Lanka and it must be removed. If it remains, extremist and\nracist elements from mono-ethnic political parties will be kingmakers. No\nmatter who wins the next presidential election, all of them will be in his\nCabinet doing the very same thing. Foreign powers will manipulate the executive\npresident to get things done without impinging on the legislative sovereignty\nof the people exercised by parliament. In July 1987 only one MP was by the side\nof the president when India invaded the island nation. But the president\nimplemented the Indian agenda through parliament by locking them up in hotels\nuntil they passed 13A. <\/p>\n\n\n\n

One presidential hopeful has said a new constitution will be\npresented to the people for a vote and upon passing it by the people, it will\nbe the constitution of the country. This is a valid claim as the people can\nexercise direct democracy. Elected representatives are only the representatives\n(agents) of the people and there is nothing that can take away the nation\u2019s sovereignty\nthat is owned by the people and only delegated to the president, the parliament\nand the judiciary. The agent can never take away the power of the principal.\nThe Principal can at any time take back any power delegated to the agent. This\nis related to yet another power of the president \u2013 the power to call a\nreferendum where the parliament\u2019s legislative power and the judiciary\u2019s\njudicial power are overridden by the people.<\/p>\n","protected":false},"excerpt":{"rendered":"

Dilrook Kannangara Nihal Jayawickrama has written recently claiming the post of President will be merely ceremonial when President Sirisena vacates office. The government will implement policies and programmes of the prime minister and his Cabinet ministers (all of them parliamentarians). The president will be notified of decisions. Though the president will retain some powers like […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":true,"template":"","format":"standard","meta":{"footnotes":""},"categories":[44],"tags":[],"class_list":["post-90160","post","type-post","status-publish","format-standard","hentry","category-dilrook-kannangara"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/90160","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=90160"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/90160\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=90160"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=90160"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=90160"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}