Logic Of The Republican Constitution & Relative Autonomy Of The Presidency: A Response To Dayan
P. Soma Palan
I refer to the above titled article by Dr. Dayan Jayatilleka (DJ) in the Sunday Observer of 4th November and wish to respond to the views expressed, therein, by him. I am not a learned expert on Constitution, but a civic minded citizen, who has the capacity to think and discriminate between the truth and the false.
1. Republican Constitution and the Presidency
For DJ, conclusion precedes reason. He is seeking reason to justify his pre-determined conclusion. The pre-conclusion is, the President has overriding autonomy over the other arms of the Constitution. DJ qualifies by saying “relative autonomy of the Presidency”, which itself is a limitation, and an admission of the President’s autonomy, is not absolute. DJ separates (a) National Sovereignty and (b) Supremacy of the Legislature. These two are not distinctly separate, but one and the same thing. National Sovereignty means the Sovereignty of the State, Nation or the Country. Call it whichever way you like. But it amounts to the same. National Sovereignty is not purely a territorial concept. This will lead to the ludicrous result of a territory without people, having sovereignty. There should necessarily be “people” to exercise that territory’s sovereignty. Therefore, there is no confrontation between national sovereignty or peoples sovereignty versus Supremacy of the Legislature. In the ultimate analysis, if “Sovereignty resides in the people” as the Constitution proclaims, then that Sovereignty is expressed by the Legislature ( Parliament). Thus the Legislature is the microcosm of the macro National Sovereignty. Peoples’ Sovereignty is represented in the Legislature by their elected representatives. Thus the People and the Legislature are synonymous. If this is so, Supremacy of the Legislature (Parliament) overrides the Presidency, irrespective of the fact that the latter is directly elected by the people.
2. 19th Amendment
DJ states that “the 19th Amendment is not a new Constitution”. This is common knowledge. Every informed person knows it. It requires no constitutional punditry. An Amendment is an integral part of the Constitution- whether as an addition, deletion, or modification of an Article, Proviso, Section or sub-section of the Constitution. No Article or Proviso by itself, either singularly or severally, can be deemed as the Constitution. The Constitution is a composite whole, including subsequent amendments.
3. Separation of Powers
The Separation of Powers is a cardinal pillar of a Parliamentary form of Government. The three pillars of the Constitution are: (a) Legislature (b) Executive and (c) Judiciary All three arms of the Constitution are co-equal and co-lateral in their autonomy. DJ states that despite the 19thAmendment, the logic of the 1978 Constitution is “a strong and stable Executive free from whims and fancies of the Legislature, and the Executive still remains above and relatively autonomous of the Legislature”. This view is antagonistic to the principle of Separation of Powers- that is, no one arm of the Government can be above or lower than other arm of the Government. If the President is,“above and autonomous of the Legislature”, then why the need for a Cabinet of Ministers, which is a creature of the Legislature? The President cannot act or take decisions unilaterally of his own, like during the historical Monarchies. The President is the creature of the People as much as the Legislature is the creature of the People. The President is part of the Cabinet of Ministers and decisions taken in the Cabinet are not the decisions of the President, it is the collective decisions of the Cabinet and accordingly the decision of the Government. If the President is above and has overriding autonomy over the Cabinet, which is an integral part of the Legislature, as claimed, then, he should be above and have overriding power over the Judiciary also. This is not so, as it would be ridiculous. The very principle of the Separation of Powers is to ensure checks and balances between the three organs of the Government.
4. Sovereignty
