By Dr Wickramabahu
With the noise of the no confidence motion against the PM Ranil Wickremesinghe the issue of the powers of the president came under debate again. Comrade Jayampathi of course believes that he has put the final nails on the coffin of this issue. Strangely, things happened recently that made the yahapalana democratic movement to demand that presidency, even with the 19th amendment, is an unwanted burden hence it should be removed with a separate amendment for that purpose. However those who want to continue with presidential system, for its shape of Raja perhaps, come forward to defend the constitution now in function. They argue that dictatorial aspect of the constitution has been moderated to make it a powerful democratic constitution. They condemn that the near hysterical response to the local election results, by parliamentarians and the media alike, demonstrated an unfortunate lack of understanding of the powers of the President. According to them the office of President today, not what was established by President Jayewardene in 1978; nor are the powers of that office the same or even similar. The 19th Amendment [19A] stripped the Presidency of nearly all the executive powers which President Jayewardene invested himself with. The President today is, in many respects, a constitutional Head of State who is required to act on the advice of the Prime Minister, similar to the Presidency under the 1972 Constitution.
However in the present constitution, leader of political party antagonistic to that of the Priminister can assume the post of president. Then the clause that president will act on the advice of the president become almost redundant. This arrangement is very much different from the functions of a just Head of State, be it a Queen or President. In the United Kingdom, its exercise is regulated by convention. But we are used to entirely different tradition for several decades. In Lanka, Article 43 of the Constitution empowers the President to appoint as Prime Minister “the Member of Parliament who in his opinion “is most likely to command the confidence of Parliament”. No petition with signatures, or even a vote of confidence in Parliament, is required. This absolute power come from1972 Constitution where president is appointed by the political head. It means that if the president in his opinion concludes that the sitting Priminister has lost the confidence of the parliament, president could attempt to throw the Priminister out! In any event, if the President were to dismiss the Prime Minister, he may do so only if he is of the opinion that the Prime Minister “most likely” does not command the confidence of Parliament, and that some other Member of Parliament does. In such event, that other person should immediately be appointed Prime Minister!
On the other hand 1978 Constitution originally provided that a Minister or a Deputy Minister may be removed from office “by a writing under the hand of the President”. The 19A deleted that provision. In its place was substituted a provision which states that a Minister or Deputy Minister may be removed from office “under the hand of the President on the advice of the Prime Minister”. Therefore, the process of removing a Minister or Deputy Minister now has to be initiated by the Prime Minister, and in making a removal order the President is required to act on the Prime Minister’s advice. Thereby, the position under the 1972 Constitution has been restored. Also, the 1978 Constitution originally empowered the President to exercise his executive power to dissolve Parliament at any time after the first year following a general election. The 19A removed that power. The President may now dissolve Parliament only in the last six months of its five-year term. If he wishes to do so earlier, he needs to obtain the consent of Parliament expressed through a resolution passed by not less than two-thirds of the whole number of its members voting in favour.
The President, of course, has residuary executive powers which every Head of State possesses. He is the Commander-in-Chief of the Armed Forces and Head of the Executive. He may declare war and peace. Now that president is a live political leader not just an apolitical figure like Gopallawa these powers are serious. He may appoint and accredit an ambassador, but only if the Ministry of Foreign Affairs has secured the agreement of the receiving state. The recent problem involving the Defence Attaché in London, when the President reportedly overruled the Foreign Minister’s instructions that the officer concerned should return home immediately, demonstrated the reality of presidential powers. In addition the President has the power to pardon any convicted offender, or substitute a less severe form of punishment. Finally, the President of Sri Lanka is constitutionally vested with a unique power, without precedent in the constitution of any other country; that is, to appoint President’s Counsel. In exercising all these powers, a political head will be governed by his political will.
The 19th Amendment left intact certain powers which the 13th Amendment had vested in the President. These relate to provincial administration. The President appoints a Governor for each province. Where there is a failure of its administrative machinery, the President may, upon being so informed by the Governor, assume to himself the powers of the Governor for a period of 14 days; the powers of the Provincial Council passes to Parliament which may, in turn, confer such powers on the President who may, in turn, delegate such powers to any other authority.
The 19A, left intact the provision in the Constitution which indirectly make the Public Security Ordinance of 1947 to be a law enacted by Parliament. Consequently, it is the President who, under that Ordinance, decides whether to declare a state of public emergency, and it is the President who makes emergency regulations; however proclamation declaring the existence of a state of public emergency lapses in 14 days; unless Parliament by a resolution approves it. Therefore, unless the President had acted with the concurrence of the Prime Minister, his proclamation will necessarily be short-lived.
The argument that presidency established by the 1978 Constitution no longer exists and the 19A has effectively abolished it is a dangerous statement. It is true that the President, of his own volition, cannot choose the Ministers. He cannot remove any Minister from office except on the advice of the Prime Minister. He cannot dissolve Parliament at a time of his choosing. Acting alone, he cannot appoint Judges, Senior Officials or the independent Commissions. But as pointed above the residue is unacceptable. We must implement the promise to remove executive presidency.