Rereading Article 43
President Sirisena
By Neville Ladduwahetty-June 21, 2019, 12:00 pm
In an article titled, "Have they not read article 43?" Dr. Nihal Jayawickrama has addressed the powers of the next President of Sri Lanka under the 19th Amendment stating: "He/she will be Head of State, the Head of the Executive (i.e. the Government) and the Commander-in-Chief of the Armed Forces. That is precisely what President William Gopallawa was under the 1972 Constitution …. What he will not be able to do is seek to implement his "policy" in respect of a particular subject since that would be trespassing on the territory of a duly appointed Cabinet Minister to whom that subject has been assigned" (The Island, June 9, 2019).
Since Emeritus Prof. G.H. Peiris has, in a scholarly article, responded to Dr. NJ’s interpretation of the powers of the next President (The Island, June 12, 2019), I was not planning to comment on Dr. NJ’s conclusions. However, I am now doing so after having heard a prominent journalist (in a TV talk show), repeating Dr. NJ’s interpretation of Article 43 and inquiring why, if in fact the next President is so powerless, anyone should try to secure that position, and why the country should be made to bear the cost of a presidential election? Therefore, the attempt herein is to present a perspective different from Dr. NJ’s.
Contrast in Presidential Powers under 1972 Constitution and 19th Amendment:
1. The 1972 Constitution is based on a parliamentary system of government where legislative, executive and judicial power of the People is exercised by Parliament, while the 19th Amendment (19A) is based on a Presidential system of government where legislative, executive and judicial power of the People are exercised separately. Consequently, each system presents an alternative system of government.
2. Under the 1972 Constitution, the President is nominated by the Prime Minister (Article 25). In contrast, the President under the 19A is directly elected by the People who are sovereign.
3. Under the 1972 Constitution the President is not a Member of the Cabinet of Minister and acts on the advice of the Prime Minister, while the President under 19A is responsible for exercising "the executive power of the People including defence of Sri Lanka" as part of their sovereignty (Article 3 read with Article 4).
4. Under 19A, the President "shall be a member of the Cabinet of Ministers and shall be the Head of the Cabinet of Ministers" [Article 42 (3)]. Therefore, since the President under 19A is constitutionally responsible to the People for the defence of Sri Lanka and as a Member of the Cabinet of Ministers and its Head, he is constitutionally required to be at least the Minister of Defence. These constitutional provisions require the President under 19A to do much more than simply chairing meetings of the Cabinet contrary to what Dr. NJ says.
5. Under the 1972 Constitution, since the National State Assembly (Parliament) "is the supreme instrument of State power", the Cabinet of Ministers is responsible to Parliament (Article 92) and charged with the direction and control of the government. Under 19A too, the Cabinet of Ministers is responsible for the direction and control of government [Article 42 (1)]. In this regard the only way this provision could be reconciled with the principle of separation of legislative, executive and judicial power under a Presidential system, is to hold the Ministerial functions of the President as a Member of the Cabinet to be "collectively responsible and answerable to Parliament [Article 42 (3)].
This interpretation is valid since the executive power of the People is to be exercised by the President [Article 4(b)] the process of executing executive power is carried out by the Cabinet of Ministers with the President as one of its Members. However, while the people want their executive power to be exercised only by the President, others in the Cabinet derive their authority from the President because at no time did the People assign their executive component of their sovereignty to the Cabinet of Ministers. This is confirmed by the Supreme Court judgment on the 19A (S.D.No.04/2015) and it states: "So long as the President remains the Head of the Executive, the exercise of the powers remains supreme or sovereign in the executive field and others to whom such power is given derive the authority from the President or exercise the Executive power vested in the President as a delegate of the President".
The judgment also states: "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". Therefore, whether one agrees with the judgment or not, Dr. NJ’s contention that "he (the President) will make the statement of government policy at the commencement of each session of Parliament, but that policy would not be his, but of the Cabinet of Ministers as presented to him by the Prime Minister’ is incorrect, under 19A.
Under 19A, if the statement of government policy is prepared by the Prime Minister it will be undertaken on behalf of the President and it will certainly NOT be the policy of the Prime Minister because the authority for whatever the Prime Minister and the Cabinet carry out is via delegated power. Furthermore, the Cabinet of Ministers is entitled to claim ownership for any government policy only if the President’s executive power was constitutionally transferred, relinquished or removed. Such a shift of power cannot take place without people’s approval at a referendum. Therefore, any executive action undertaken by the Cabinet of Ministers has to be on behalf of the President as delegated power.
CONCLUSION
If Dr. NJ’s assertion that "under 19th Amendment, the process of replacing presidential government with parliamentary government will reach fruition on the day that President Sirisena ceases to hold office" is correct then one can argue that the Supreme Court would have made a referendum mandatory because "replacing" one system of government with another is so fundamental that it requires the consent of the people. Since there was no referendum one could conclude that no power shift occurred from President to the Prime Minister and the Cabinet of Ministers. Whatever transformations that occurred under the 19A, was therefore interpreted by Court to have been limited only to the extent of diminishing some of the arbitrariness in Presidential power. One such instance was the denial of the President to dissolve Parliament after one year.
The material presented above clearly should demonstrate that whatever changes that were introduced under 19A only required the President to act on either the advice of the Prime Minister in certain instances or with the consent of Independent Commissions as ably argued by Emeritus Professor G.H. Peiris. All that the 19A did was to introduce a fetter on presidential powers that had existed under the 1978 Constitution while retaining the fundamentals of the presidential system. It did not in any way replace "presidential government with parliamentary government".
