CHOICE OF A PRIME MINISTER FOR SRI LANKA

By Lakshman I. Keerthisinghe LLB, LLM, M Phil Attorney-at-Law-2015-07-18

When Prime Minister Neville Chamberlain's government fell in May 1940, the nation turned to Churchill. At last, his unique qualities were brought to bear on a supreme challenge, and with his unshakable optimism, his heroic vision, and above all, his splendid speeches, Churchill roused the spirit of the British people.
– Gretchen Rubin

Sir Ivor Jennings commenced his acclaimed work Cabinet Government' (Third Edition-1969) end Italics stating that: The Cabinet is the core of the British constitutional system...In the Cabinet and, still more, out of it, the most important person is the Prime Minister. It is he who is primarily concerned with the formation of a Cabinet, with the subjects which the Cabinet discusses, with the relations between the Queen and the Cabinet and between the Cabinet and Parliament and with the co-ordination of the machinery of government subject to the control of the cabinet.

The people of Sri Lanka are on the threshold of electing a new government into power and the important question in their minds would be who would become the next Prime Minister of Sri Lanka who will play the most important role in the destiny of our people and our nation in the near future. Sri Lanka has followed the Westminster model of Parliamentary democracy. As of 10 June 2015 the Cabinet had 40 members – President, Prime Minister and 38 Ministers. There were also 14 State Ministers and 25 Deputy Ministers who are not members of the Cabinet (in addition one Cabinet Minister and one State Minister were also Deputy Ministers).The Prime Minister is the Head of the Cabinet of Sri Lanka, which comprises the Council of Ministers that form the Central Government of Sri Lanka. It is responsible to and answerable to Parliament.

Colebrooke-Cameron Commission
Historically, the Executive Council of Ceylon was the Executive Council created in British Ceylon by the British colonial administration on the recommendations of the Colebrooke-Cameron Commission along with the Legislative Council of Ceylon, as the legislative body, on 13 March 1833. At its creation the Executive Council was headed by the Governor, along with five members appointed by the Governor. These five members were officials who held the posts of the Colonial Secretary, the Attorney General, the Auditor General, the Treasurer and the General Officer Commanding Ceylon. The Council exercised executive power and advised the Governor. As a result of the First Manning Reforms three non-officials were elected to the Executive Council. With enactment of the new Constitution of the Dominion of Ceylon in 1947 the Executive Council was replaced by a National Cabinet.

According to the 1978 Constitution, the President is a member of and Head of the Cabinet. The President appoints as Prime Minister the Member of Parliament who has the confidence of Parliament. Other Ministers of the Cabinet are appointed by the President in consultation with the Prime Minister. The President may appoint himself to any ministry he chooses. According to the Constitution the President must be the Minister of Defence. The President also appoints, in consultation with the Prime Minister, Ministers who are not Members of the Cabinet (Non-Cabinet Ministers, Project Ministers, Deputy Ministers). The Cabinet meets several times a week to discuss vital issues.

19th Amendment
The Supreme Court in its determination of the 19th Amendment to the Constitution has ratified a Premier-Presidential system for Sri Lanka. Before delving into the SC judgment, one first needs to understand where Sri Lanka stands at present as a regime type under the 1978 Constitution. In pure Presidential regime types, the Government (or Cabinet) is not responsible to the Legislature, but to the President. In pure Parliamentary systems where there is no popularly-elected President, the Cabinet is responsible to Parliament as the assembly could dismiss it with a motion of No Confidence. There are also semi-presidential systems where a popularly elected President exists along with a Prime Minister and a Cabinet (that is the Government).

Therefore, the Executive in semi-presidential systems comprises a popularly elected President and the Government. Government responsibility in semi-presidential systems varies. In semi-presidential systems that are presidential-parliamentary, the Government is responsible both to the elected President and Parliament. In that, the Cabinet under the 1978 Sri Lankan Constitution faces dual responsibility as it stands dissolved both by a parliamentary No-Confidence motion, and when the President so decrees. In semi-presidential systems that are Premier-Presidential, the Government is responsible to Parliament. The 19A Bill has removed the dual responsibility of the Cabinet and moved towards a Premier-Presidential system where the Government is responsible only to Parliament. Clause 11 of the Bill provides for an Article 48(2) on Government responsibility to Parliament. The Supreme Court has endorsed this shift towards Premier-Presidentialism. However, typically in Premier-Presidential systems there is a dual executive where the head of the State is the elected President and the head of the Government is the Prime Minister. The most popular example is the French model.
Whether the clauses in the 19A Bill referring to the PM as the Head of the Government requires a referendum was a key question before the SC. The Supreme Court has accepted that the President is not the unfettered sole repository of executive power, and that the executive power should not be personalized in the office of President.

However, the Court struck down the clauses referring to the PM as Head of the Government and as Government formateur based on four grounds :-(1) There must be a 'link' between the President and the person exercising executive power, (2) An express delegated authority or permission given to the PM by the President is absent, (3) The President must be in a position to monitor those who derive authority from him, and (4) The President must retain the ultimate act or decision. It stands to reason then, the Bill would not require a referendum if this missing 'link' is installed with an express delegation of authority by the President, together with his control power to monitor. Several reasons could be adduced to the shift towards a dual executive where the President is the head of the State and the Executive and the PM is the head of the Government. The first is that, the Supreme Court has given approval for the establishment of a Premier-Presidential system. It is evident that Sri Lanka cannot shift to a pure parliamentary model without a referendum, as it would result in the repeal of a popularly elected Executive President. But the closest is a parliamentary system which is premier-presidential and thus constructs a dual executive.

Semi-presidentialism
The more a Constitution moves to semi-presidentialism, the lesser power an elected President wields and the closer it gets to a parliamentary system. This heightens democratic performance. The reason why the framers introduced a popularly elected President in Sri Lanka was stability: To prevent constant elections when governments break during unstable coalitions.
The Supreme Court has already laid down the method of designing a dual executive. First there must be a nexus between the PM, Cabinet and the President. The need thus arises to insert provisions, which provide that there shall be a Cabinet of Ministers entrusted with the authority of the President to determine and conduct the policy of the Republic. A provision that provides for an 'expression of delegation' by the President is required, so that, the Cabinet shall be formed and headed by the Prime Minister, summoned by the President to do so. The final act or decision also must emanate from the President. For this reason some Premier-Presidential constitutions require the PM to keep the President informed of the external and internal policy of the State and to get the President's signature for all Government decisions. However, the refusal of the signature is limited on grounds of illegality.

The President also can in his exercise of legislative power monitor Government through his power to invoke the Supreme Court's jurisdiction with respect to Bills. Notwithstanding the fact the PM heads the Cabinet, the President as Head of the Executive must have the power to convene the Cabinet in order to make directions for the due discharge of his powers under the Constitution and the law, and to determine policy relating to defence. However, to prevent a President from inventing situations of intrusion it should be a requirement that his directives must bear the approval of the Cabinet. Such checking and balancing mechanisms are prevalent in Premier-Presidential regimes. Presidential directives that invoke emergency regulations which affect People's rights and franchise guaranteed under Articles 4(d) & 4(e).must be made to bear the approval of the Cabinet.

In conclusion, Sri Lankans should ensure that the future Prime Minister of Sri Lanka is a person who possesses the capacity and the courage to withstand undue foreign interference or inter-meddling in the internal affairs affecting the sovereignty of our nation.
Foreign States however, powerful they may be, should never be permitted to dictate terms in matters of internal administration of Sri Lanka, which is indeed a dignified independent nation, not anymore under Western colonial rule.