Addressing the Multiple Facets of Presidential Power

By Neville Ladduwahetty-December 10, 2018, 9:56 pm 

This is in response to Dr. Nihal Jayawickrama’s (NJ) article in The Sunday Island of December 9, 2018 titled "Why didn’t they tell the President"?

Referring to the President’s powers under the 19th Amendment (19A), NJ states: "That amendment removed his executive powers except three which he still enjoys: the power to appoint ambassadors, the power to appoint secretaries, and the power to appoint provincial governors".

Although NJ’s comment cited above is limited only to the "executive powers of the President", the fact that the President wears many hats, requires the multiple facets of his powers as defined under the 19A and the 1978 Constitution to be explored.

Article 30 (1) states: "There shall be a President of the Republic of Sri Lanka, who is the Head of the State, the Head of the Executive and of the Government and the Commander-in-Chief of the Armed Forces". Furthermore, as part of the inalienable sovereignty of the People, "the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People" (Article 4 (b) of 1978 Constitution.

My comments are from the perspective of fundamental concepts which are, that as the Head of State elected by the People, the President has certain powers that no Prime Minister would ever have, and as the single person to whom the sovereign People of Sri Lanka have reposed their executive powers, all others who exercise executive powers do so as powers derived from the President and no one else.

PRESIDENT as HEAD of STATE

Article 33 (1) of 19A states: It shall be the duty of the President to – and cites four duties that include; respecting and upholding the Constitution; promote national reconciliation; ensure functioning of Constitutional Council and ensure free and fair elections and referenda.

Article 33 (2) of 19A states: "In addition to the powers, duties and functions expressly conferred or imposed on , or assigned to the President by the constitution or other written law, the President shall have the power"—and cites eight duties among which is 33(2)(c). Accordingly, the President SHALL HAVE THE POWER "to summon prorogue and dissolve Parliament". This is NOT a "general power" as stated by NJ, but a very specific power similar to the power "to declare war and peace", that are universally accepted as powers exercised by the Head of a State.

Even under the amended Article 70 (1), "a resolution passed by not less than two-thirds of the whole number of Members" of Parliament has to "request" the President to "dissolve Parliament". Since all that Parliament can do is to "request" the President, it means that the discretionary powers to oblige the request or not lies entirely with the President. And if the President decides not to honour the request there is nothing that Parliament can do. This underscores why the power "to summon, prorogue and dissolve Parliament" in Article 33 (2) (c) was included as part of additional powers, duties and functions that are exercised by the President as Head of State. Consequently, Article 33(2)(c) exists because of amended Article 70(1) in 19A.

EXERCISE of EXECUTIVE POWER

NJ had on an earlier occasion stated that the UNF/UPFA coalition was not a National Government. My stand on this was no different. Several articles were presented on this issue one of which was "CB bond Scam and scams of another kind" (The Island January 8, 2018). A Fundamental Rights Petition was filed in the Supreme Court (S.C. FR. No. 116/2016) challenging the formation of the so called National Government that enabled the government to increase the Cabinet of Ministers, non-Cabinet Ministers and Deputy Ministers to ninety three. Despite the legitimacy of the case the Court, instead of interpreting the constitution, determined that it had no jurisdiction to hear the case since the issue had already been debated in Parliament.

The claim made by NJ is that although the President had the powers to appoint the Cabinet of Ministers, non Cabinet Ministers and Deputy Ministers, he does not have such powers following the 19A. However, what NJ fails to realize is that whatever powers they have are not powers granted by the People, but derived powers that flow from a President elected by the People.

The ruling by the Supreme Court on the "Nineteenth Amendment to the Constitution" (S.D. No. 04/2015 to 19/23015) states clearly that:

"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. Though Article 4 provides the form and manner of exercise of the sovereignty of the people, the ultimate act or decision of the executive functions must be retained by the President. So long as the President remains the Head of the Executive, the exercise of his powers remain (sic) supreme or sovereign in the executive field and others to whom such power is given must derive the authority from the President or exercise the Executive power vested in the President as a delegate of the President".

Therefore, the pomp and pageantry of Prime Ministers and Ministers are all reflected glories because they all derive their power from the President and function as delegates of the President. Therefore, whatever the language in Article 42, 43 etc. in 19A such as "shall" "may" or "on the advice" has little or no meaning because they do not represent erosion of the executive power of the President. In fact, there would be little difference between an assertive President who is aware of his powers under 19A, and his former colleagues.

According to Article 43 (1) it is the President who determines the number of Ministers, the Ministries, the assignment of subjects and the functions to such Ministers. However, according to Article 43 (2) the President appoints the Ministers according to the advice of the Prime Minster. This provision is interpreted by NJ et al. to mean that the President is supposed to carry out the bidding of the Prime Minister, thus implying that the Prime Minster has more executive power than the President.

Not so, judging from the very next provision in Article 43 (3). This states: "The President may at anytime change the assignments of subjects and functions and the composition of the Cabinet of Ministers…". Therefore, if the President has the authority to change the composition of the Cabinet, assignments and functions without the "advice" of the Prime Minister or any reference to him, how could it be claimed that the President under 19A is NOT a reflection of the President that existed under the 1978 Constitution?

CONCLUSION

A commonly held notion that is seriously flawed is that the 19A transformed a Presidential system that had existed under the 1978 Constitution into a Parliamentary system, thereby seriously eroding the powers of the President. While the intention was there and an attempt was made to realize such an objective, it failed because such a transformation would have required the approval of the people at a Referendum; a risk the framers were not prepared to take. What ended up was to tinker with what existed, but no dent of the proportion claimed was made. Even the transfer of key appointments from the President to a Constitutional Council should have required a referendum since it amounts to transfer or removal of executive power from the President to another body – the Constitutional Council. Perhaps the Court did not do so because it was influenced by an earlier Supreme Court ruling (S.C. Determination 6/2001) as admitted in its determination.

Even if the President was aware that his powers were not curtailed to the extent intended, he did not assert his authority because of obligations associated with his appointment as President and his place as the President of a constitutionally flawed "National Government". Now that he is free of such encumbrances, his assertiveness is seen as a violation of Presidential powers, instead of them being seen for what they truly are. Such assertiveness should be seen as being within the bounds of any President of Sri Lanka as long as the current Constitutional provisions including 19A remain intact.