Is the game worth the candle?

Gotabaya Rajapaksa (left) & Sajith Premadasa (right) are in a tight race to be election President on November 16.

Vishvanath

The presidential race is hotting up with the major candidates going ahead full throttle. Two contestants, Gotabaya Rajapaka (SLPP) and Sajith Premadasa (NDF), are in the lead.  There are more than 30 also-rans in the contest. This is an election that the SLPP and the UNP are all out to win, given the very high stakes they have in it. The party that secures the presidency is most likely to win the general election to follow anytime soon. Prime Minister Ranil Wickremesinghe told the media on Wednesday that he would be the PM again if Sajith won the presidency. That former President Mahinda Rajapaksa will be the PM in case of Gotabaya’s victor is only too well known.

There is only about a fortnight to go for the crucial election, and both main contestants would have the public believe that they are confident of winning, but it is obvious that they are on tenterhooks as electoral politics is full of uncertainties and therefore anything is possible. Whoever would have thought President Mahinda Rajapaksa would be beaten by Maithripala Sirisena in the 2015 presidential election?

In a desperate bid to win, Rajapaksa and Premadasa are making various promises, which are so good that even the most gullible amongst us may not expect them to be fulfilled. Not to be outdone, National People’s Power candidate Anura Kumara Dissanayake is also making a lot of promises while blaming the leading candidates for doing so. Others in the race are also doing likewise.

Key candidates have put out their manifestos, spelling out what they intend to do in case of being elected to the highest post in the country. But some constitutional experts are of the view that the executive presidency is a shadow of its former self, and the next President will be less powerful than the Prime Minister, for all practical purposes. The proponents of this view have put forth very compelling arguments, bolstering them with relevant sections in the 19th Amendment, which whittled down the executive powers of the President. If one goes by the aforesaid arguments, as for the upcoming presidential election, one may ask whether the game is worth the candle.

The President will be a figurehead’

Dr. Nihal Jayawickrama, one of the authorities on constitutional law, is the most prominent proponents of the view that the next President will be a mere figurehead thanks to the 19th Amendment. He has expressed this view during the last couple of years in various publications.

Dr. Jayawickrama has, in an article in The Observer, reiterated that it is the Cabinet that is collectively responsible and answerable to Parliament. While the President is a member of the Cabinet, and is described as being the Head of the Cabinet, under Article 43(2), only a Member of Parliament may be appointed a Minister, he maintains.

President Maithripala Sirisena has been exempted from this restriction through a transitional provision in the 19th Amendment. The next President will not be able to have under him any Ministry or any subject or function of government. He may be able only to chair the meetings of the Cabinet, offer his opinion on cabinet memoranda and even initiate a discussion on a subject close to his heart.

Dr. Jayawickrama argues that Article 43(2) states quite explicitly that, on the advice of the Prime Minister, the President shall appoint Ministers from among the Members of Parliament. The next President, not being a Member of Parliament, and not benefiting from the current transitional provision, cannot therefore hold any portfolio.

Though Article 4 states that “the executive power of the people, including the defence of Sri Lanka, shall be exercised by the President” and in “defence of Sri Lanka”, the President may, under Article 33(2)(g) declare war and peace, that is quite separate and distinct from being assigned the subjects and functions relating to defence or, for that matter, other executive powers relating to the administration of justice, health or foreign affairs.

The President was previously entitled to “assign to himself any subject or function and, for that purpose, determine the number of ministries in his charge”. That power was expressly repealed by the 19th Amendment.

The fact that the President is described in the Constitution as “Head of State, Head of the Executive and of the Government, and the Commander-in-Chief of the Armed Forces” does not mean he should necessarily be the Minister of Defence, Dr. Jayawickrama argues, pointing out that under the 1972 Constitution, President Gopallawa was also described as “Head of State, Head of the Executive, and Commander-in-Chief of the Armed Forces”. These high-sounding titles do not bring with them any special powers. The Commander-in-Chief is not a uniformed officer.

Under the 19th Amendment, the President can appoint and remove Ministers and Deputy Ministers only on the advice of the Prime Minister, Dr. Jayawickrama points out. The power the President previously enjoyed of removing the Prime Minister from office has also been repealed. It is being argued by some that Article 43(3) enables the President at any time to “change the assignment of subjects and functions and the composition of the Cabinet of Ministers”. That provision is immediately qualified by Article 46(3), which states that a Minister or a Deputy Minister may be removed from office under the hand of the President only “on the advice of the Prime Minister”.

‘Next President will remain powerful’

Compelling as the foregoing argument may be it has failed to convince some political commentators, especially the opponent of the 19th Amendment, which, they insist, has failed to take the intended effect. Their contention is that the architects of the 19th Amendment could not achieve their objective of reducing the Executive President to a figurehead owing to a judicial intervention, which prevented the transfer of the executive powers of the president without explicit approval of the people, obtained at a referendum.

Among the prominent proponents of this view is seasoned political commentator Nevillie Ladduwahetty. He argues that an attempt to reduce the Executive President to a figurehead failed because the Supreme Court determined that a referendum had to be held for that purpose and the architects of the 19th Amendment backed out.

Ladduwahetty has pointed out, in a recent article in The Island that there is no truth in the contention that the President won’t be able to hold ministerial portfolio since he is not a Member of Parliament on the basis of Article 43 (2) that states: “The President shall on the advice of the Prime Minister, appoint from among Members of Parliament, Minister, to be in charge of the Ministries so determined”… On the other hand, Article 4 (b) states clearly: “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”.   He goes on to point out that Article 42 (3), which specifically states, “The President SHALL be a member of the Cabinet of Ministers and shall be the Head of the Cabinet of Ministers”, must mean that this specific provision entitles him to hold a Cabinet portfolio in addition to being the Head of the Cabinet.

If the word SHALL in this Article is given the same emphasis as in Article 43 (2) that states: “President SHALL on the advice of the Prime Minister appoint from among Members of Parliament to be in charge of the Ministries so determined” it must follow that the President has every right and constitutional justification to be at least the Minister of Defence and be responsible for the defence of the Republic of Sri Lanka including public security. He concludes that a future President who is aware that whatever powers the Prime Minister and the Cabinet exercise are delegated by him, would continue to exercise his constitutional authority to determine the direction and control of the Government of which he is the Constitutional Head.

‘The next President won’t be titular but will have reduced power’

Dr. Asanga Welikala, writing to the Daily Financial Times, argues that certain provisions of the 19th Amendment to the Constitution, enacted in 2015 will cease to operate with the election of Maithripala Sirisena’s successor, further reducing the powers of the presidency, but that will not render the office a titular or ceremonial presidency as under the 1972 Constitution, because the president continues to be directly elected by the whole country and  is in possession of key constitutional functions within the Executive. However, some important powers and functions so far associated with the office will no longer be available to the new President, together with limitations that have already come into effect with the 19th Amendment.

Dr. Welikala maintains that the president, being the only elected official who enjoys a personal mandate from the whole country, will continue to be a source of substantial power and legitimacy for the way in which he performs his constitutional functions. “The president will be the head of state, head of government, and the commander-in-chief. These are not merely formal roles, because as head of the Executive and of the government, the president is also a member and the head of the cabinet of ministers.

The president remains in sole charge of the vast resources and apparatus of the Presidential Secretariat, argues Dr. Welikale. Unless strongly resisted by the cabinet and Parliament, the Secretariat is an enormous source and instrument for the informal projection of presidential power.

Dr. Welikaka concludes that formalistic legal arguments based on the constitutional text alone to the effect that the presidency becomes a merely ceremonial institution after the next presidential election are wide off the mark though the newly-elected president cannot behave in the fashion of the pre-19th Amendment presidency.

Need for a fresh look

Having read the interesting arguments by legal and political experts on the issue, one is of the view that there is a need to take a fresh look at the question of curtailed presidential powers in the light of the Appeal Court order as regards the petition against Gotabaya Rajapaksa’s dual citizenship. The Court specifically mentioned that it had taken into consideration the Constitution, as it was in 2005, when Gotabaya was granted dual citizenship. The Court said it was ‘satisfied that as the Constitution stood at the time of the impugned conducted of the 6th Respondent, the President [Mahinda Rajapaksa, who signed Gotabaya’s dual citizenship certificate prior to the appointment of the Cabinet and ministers and secretaries] as the custodian of the executive power of the people was the repository of the said Executive Power’.

The powers of the Executive President have been reduced by the 19th Amendment, but the principle of the President being the repository of executive power of the people seems to have survived.

Article 4 (b), even after the introduction of the 19th Amendment says: ‘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.” If so, shouldn’t it have to be factored in when the issue of the powers of the next President is dealt with?

Of Course, Article 44 (2), which enabled the President to ‘assign to himself any subject or function and, for that purpose, determine the number of ministries in his charge’ has been repealed by the 19th Amendment, but does that mean the President has ceased to be the repository of the people’s executive power and he cannot retain and exercise what he transfers to others in the Cabinet?

Only the political parties represented by Gotabaya and Sajith have the potential to form the next government either under their own steam or with the help of their allies. Whichever candidate wins, if the next President tries to keep ministries under him, as his predecessors did, such action is likely to be challenged in the apex court, which alone can interpret the Constitution legally, and put the matter to rest.

It is hoped that the constitutional ambiguities that the 19th Amendment has created does not bring the next President and the PM on a collision course, and the country does not plunge into chaos, again.

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