Sri Lanka’s Constitution is a bundle of contradictions that have resulted from a great deal of political skullduggery andsleight of hand on the part of its framers; politically-motivated half-hearted attempts to rectify them over the years have not yielded the intended results in respect of the relations among the three branches of government, especially between the Executive and the Legislature. Some amendments introduced purportedly to eliminate serious flaws in the supreme law have led to even more confusion.
The President is constitutionally required to attend Parliament once every three months, and these presidential visits have come to be soft power projections in effect, with the Prime Minister being eclipsed by the President’s presence in the House. This fact became evident again recently when President Gotabaya Rajapaksa sat in Parliament. His presence had the same effect as a pep pill on the government MPs. Ruling party legislators usually dance attendance on the President whenever he visits Parliament. Chief Opposition Whip Lakshman Kiriella told the House, a few weeks ago, that the SLPP members tended to go overboard in trying to impress the President when he was present in the chamber. This is not something new. We have seen MPs pay court to the President under successive governments during the past four decades or so. When the President exercises control over Parliament, he or she overshadows the Prime Minister, but it is the other way around, when the PM happens to represents a different political party; such a situation leads to a conflict between the President and the Prime Minister, or the Executive and the Legislature.
The current President is the only ‘outsider’ to have sat inParliament by virtue of being the Head of State in the sense that all his predecessors, namely, the late J. R. Jayewardene, the late Ranasinghe Premadasa, the late D. B. Wijetunga, Chandrika Bandaranaike Kumaratunga, Mahinda Rajapaksa and Maithripala Sirisena were elected to Parliament—the first five of them had served as Prime Ministers—before being elevated to the presidency. Wijetunga was appointed President following the assassination of President Premadasa in 1993. Jayewardene, Premadasa, (Mahinda) Rajapaksa, and Sirisena had been in Parliament for decades before winning the presidency; Kumaratunga went on to become the President a couple of months after her election to Parliament, where she served as the PM briefly.
Theoretically, there is nothing wrong with the President attending Parliament, as the head of state, and his or her presence there is said to symbolise cooperation between the executive and the legislature. But it is doubtful whether this was the real intent of the chief architect of the present Constitution;Jayewardene, who created the executive presidency, having toyed with that idea for decades, was no respecter of the legislature; he wanted to remain above Parliament and had draconian powers vested in him through the 1978 Constitutionto dissolve Parliament one year after its election. He also sought to undermine the PM, who represented a competing power centre in his government. He ensured that his parliamentary group would always remember who their boss was. His presence dwarfed the then Prime Minister Premadasa, who was emergingvery powerful in the UNP and had presidential ambitions. President Jayewardene obtained undated resignation letters from his MPs, after the 1977 general election, where he secured a two-thirds majority so that he could get rid of the UNP legislators in case of a revolt against him. A highly ambitious PM Premadasa, who was not contented with his lot in the party or the government, famously lamented in Parliament that his position was no better than that of an office peon. He told the truth, for a PM from the same party as the President is always at the latter’s thumb.
1978 Constitution
Article 32 (3) of the original 1978 Constitution reads as follows:
“The President shall, by virtue of his office, have the right at any time to attend, address and send messages to Parliament. In the exercise of such right the President shall be entitled to all the privileges, immunities and powers, other than the right to vote, of a Member of Parliament and shall not be liable for any breach of the privileges of Parliament, or of its Members.”
This Article was the brainchild of the late President Jayewardene, who, in a manner of speaking, wanted to have the best of both worlds. His style of governance, which was later emulated by his predecessors, except Wijetunga and Sirisena, became grist for the mill of the opponents of the executive presidency. Kumaratunga campaigned basically on an anti-executive presidency platform to win the parliamentary polls and the presidential election in 1994 in quick succession. Her promise to abolish the executive presidency went unfulfilled. Having secured a second term, she tried to introduce a new Constitution with a view to becoming the Executive Prime Minister, in 2000, so that she could continue to contest elections to be the Head of State instead of retiring in keeping with the constitutional provision that the President could not hold more than two terms. Her attempt miserably failed as the UNP and the JVP resisted her move, claiming that she had played a trick on them. Thereafter, she took some action to dilute the executive powers of the President. In fact, she only made a virtue of necessity; she had to as the JVP said because the latter was propping up her government following mass crossovers in 2001.Struggling to keep her hold on Parliament, Kumaratunga agreed to support the 17th Amendment.
17th Amendment
The 17th Amendment to the Constitution, which came into being in 2001 during a shaky People’s Alliance government led by President Kumaratunga. She lost power in Parliament shortly after the passage of this vital constitutional amendment, whichwas intended to whittle down the executive powers of the President to some extent. It established the Constitutional Council and independent commissions for some key state institutions through the creation of the following:
The establishment of the above-mentioned institutions was a salutary move, but whether they helped depoliticise the state service is another matter that should be dealt with separately.
Curiously, the 17th Amendment retained Article 32 (3). Perhaps, its architects did not want to tinker with the Constitution too much as their goal had been the formation of the Constitutional Council.
18th Amendment
Something interesting happened when the 18th Amendment was introduced under the Mahinda Rajapaksa government in 2010; it was made mandatory for the President to attend Parliament ‘once in every three months’. Article 32 of the Constitution was amended to read:
“The President shall by virtue of his office attend Parliament once in every three months. In the discharge of this function, the President shall be entitled to all privileges, immunities and powers of a Member of Parliament, other than the entitlement to vote, and shall not be liable for any breach of the privileges of Parliament or its members: and
“The President shall by virtue of his office also have the right to address and send message to Parliament.”
The constitutional requirement for the President to attend Parliament once every three months is of interest. This provisionwas inserted arguably to give the impression that the President was responsible to Parliament and serve by way of an excuse for replacing the Constitutional Council introduced by the 17thAmendment, with a Parliamentary Council, and the restoration of the executive powers of the President. Unsurprisingly, the critics of the 18th Amendment dismissed the Parliamentary Council as mere eyewash.
19th Amendment
The 19th Amendment, which was the brainchild of the yahapalana government, formed after the 2015 regime change, reduced the presidential powers, reintroduced the two-term limit, and restored the Constitutional Council with more powers. The relevant section of this constitutional amendment is as follows:
Article 33 A: “The President shall be responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the constitution and any written law, including the law for the time being relating to public security.”
The framers of the 19th Amendment introduced this provision because they wanted to strengthen the position of the Prime Minister (Ranil Wickremesinghe) in the government at the expense of the Executive President (Maithripala Sirisena). The re-introduction of the Constitutional Council enabled the PM to override presidential decisions concerning key state sectorappointments for all practical purposes.
It should be noted that 19th Amendment introduced no changes to Article 32, pertaining to the President’s entitlement to attend, address and send message to Parliament.
20th Amendment
The executive presidential powers have now been fully restored. The 20th Amendment is more or less the same as the 18thAmendment, and has left unchanged Article 32, as changed by the 18th Amendment. It, however, has left the two-term limit intact.
With all executive powers fully revested in the presidency, the President is now as powerful as his predecessors before the introduction of the 19th Amendment (2015).
When the PM dwarfs President
The Prime Minister can eclipse the President, as was said earlier in this comment, both in and outside Parliament, only when they are elected from two different parties. This, we saw from 2001 to 2004; Prime Minister Ranil Wickremesinghe, elected from the UNP, undermined President Kumaratunga(People’s Alliance), who lost control of Parliament, and suffered many indignities at Cabinet meetings she presided over. A similar situation occurred under the yahapalana government following the estrangement of Prime Minister Wickremesinghe(UNP-led UNF) and President Sirisena, who, in a surprising move, took over the leadership of the SLFP and the UPFA coalition after being elected President as the common candidate of the UNP-led Opposition; Sirisena even tried to oust Wickremesinghe as the PM, albeit in vain, when their differences came to a head in 2018.
The Executive Presidents have been very cautious in appointing their Prime Ministers; they prefer to have in that position elderly politicians who do not have much politics left in them so as to be able to manipulate the legislature through themwith ease, but there have been occasions where they had to appoint ambitious politicians as Prime Ministers for want of a better alternative and regretted their decisions.
President Jayewardene found it difficult to control PM Premadasa, who had presidential ambitions and was popular in the UNP. Jayewardene let the UNP decide who should be the PM and Premadasa was the party’s choice. He must have regretting having done so. When Premadasa became the President, he handpicked as his PM Wijetunga, who was too oldto have presidential ambitions. When Wijetunga became the President, accidentally, he had Ranil Wickremesinghe as the PM, and later appointed Kumaratunga to that position following the fall of the UNP government in August 1994. President Kumaratunga made an elderly Ratnasiri Wickremenayake her Prime Minister, and then had to put up with PM Wickremesinghe following the defeat of her part at the 2001 general election. After winning the 2004 parliamentary polls, she appointed as her PM (Mahinda) Rajapaksa, who was highly ambitious and politically savvy, and soon a personality clashensued between the them. Kumaratunga turned so hostile towards Rajapaksa that she, at the end of her second term, went to the extent of trying to queer the pitch for the latter at the 2005 presidential election. President Rajapaksa appointed D. M. Jayaratne, who was well past the age of having presidential ambitions as his PM. President Sirisena had to appoint Wickremesinghe the PM in keeping with a pre-polls pact he had entered into with the UNP—something he publicly regretted afterwards; he made a futile bid to sack PM Wickremesinghe and appoint Mahinda to that position in October 2018. President (Gotabaya) Rajapaksa has appointed his brother and former President, Mahinda, as his PM. The siblings are getting on.
The incumbent President is lucky that PM Rajapaksa, having held the executive presidency twice, is not interested in consolidating his power in the government and refrains from interfering with presidential decisions and actions as regards the legislature or the government as a whole. This has enabled President Gotabaya Rajapaksa to play a dominant role in the government, the way some of his predecessors did. But the situation can change in the future in case of the SLPP losing power in Parliament.
As for now, it is plain sailing for President Rajapaksa even though he is an ‘outsider’ in Parliament.
