President And The Constitution

Sathiya MoorthyThe Sunday Leader, Colomb0, 20 August 2017

Joint Opposition Leader and constitutional expert G. L Peiris has said that Sirisena keeps talking about General Elections whenever pressure builds on the Government to face local government polls, and now provincial council elections, the former due long ago and the latter beginning next month. The chances of the Government’s purported plans to consolidate all nine PC polls to a same day, but much later, is not unlikely to run into political, legal and constitutional issues, apart from possible public pressure.

Almost since the day he assumed office as President, incumbent Maithripala Sirisena has been asserting his ‘right’ of sorts to invite a Prime Minister of his choice to form a Government. He has also reiterated that General Elections will not be held any time before due, in 2020. The President’s first claim especially is a travesty of democratic traditions that the ‘Yahapalanaya’ Government in particular claims to be wedded to, and possibly violation of the constitutional provisions, especially the spirit of 19-A.

Questions were raised by political adversaries when Sirisena swore in Ranil Wickremesinghe as Prime Minister at the very minute he himself was administered the oaths as President. If those protests were muted it owed to the general euphoria of the moment and the precedents those before Sirisena had set in their time.

For instance, immediate predecessor Mahinda Rajapaksa, whom Sirisena defeated in the January 2015 presidential polls, swore in Ratnasiri Wickremenayake as Prime Minister when he was first elected President in 2005. In doing so, Rajapaksa also went back on his pre-poll public commitment to have Anura Bandaranaike, vexed brother of outgoing President and their party boss, Chandrika Bandaranaike-Kumaratunga, as his Prime Minister.

After returning to power in the advanced, post-war Presidential polls of 2010, Rajapaksa would replace his own earlier choice with a new Prime Minister in D.M Jayaratne. On the immediate earlier occasion, CBK as Prime Minister got elevated as President after being rightfully elected to the job. She would name her mother Sirimavo Bandaranaike as Prime Minister – and later after a poll-victory, none other than Rajapaksa.

No questions were asked, nor any answered. Does it mean that the President has the absolute and unassailable power to choose a Prime Minister of his or her choice? No, never. That is neither the intention of Parliament, nor of the Constitution. Nor is it feasible. Such a course should not be encouraged to be institutionalised even in one’s own mindset, leaving aside people and parliamentarians alike to believe in it.

There is enough provision and precedent of a political party opposed to that of the incumbent President winning the parliamentary polls, and its leader staking claims to form a Government. The CBK-Ranil cohabitation may not have gone as well as either or both might have wanted, but the fact remains that for a certain period, Ranil was Prime Minister under President Chandrika.

Whatever President Chandrika may have done, in terms of unilaterally dismissing Ranil’s ministerial colleagues, that too when he was meeting with her US counterpart in the White House, she did swear him in as Prime Minister, when his UNP won the parliamentary polls. This is also despite the subsequent development when CBK would dismiss the Ranil Government, dissolve Parliament and order fresh elections before due.

Under the Constitution as it existed at the time, the President was well within her ‘right’ to do so. Or, so went the belief. The question, then and now, is this: Was the President’s powers in the matter before the Maithri-Ranil leadership got 19-A passed, and cause fresh parliamentary elections any time after the first year of the House’ life, subjective or should it be (or, have been) objective?

Unitary state, but…

JRJ did a great disservice by making Sri Lanka a ‘Unitary State’ and also ushering in Executive Presidency at the same time, through the Second Republican Constitution in 1978. People were made to believe that one required the other to survive. It suited successive Presidents to believe in it.

Despite 19-A that he promised pre-poll and piloted on assuming office, the Executive Presidency remains mostly intact – as understood and misused or misunderstood and abused, from 1978. Prior to 19-A, the Constitution gave the President powers to dismiss elected Governments and dissolve elected Parliament at will any time after the completion of their first of the five-year term, and order fresh polls. 19-A reduced that window from an effective four years to six months.

If this President looks relatively weak, it is not because of the Constitution, as it stands after 19-A. It owes instead to the political reality, as the traditional UNP rival of Sirisena-led SLFP is in the driver’s seat in terms of parliamentary majority. Sirisena is also faced with the Mahinda-led JO’s eternal threat against his continued leadership of the SLFP.

If Sirisena says that no one can form a government without his blessings, as SLFP President, that may have something to it, at least until formally proved otherwise, if at all. If he is saying it as the nation’s President, it’s another matter altogether. If anything, Parliament, acting as the Constituent Assembly just now, should take a closer look, and rectify the errors from the past i.e. 1978.

It is one thing for the nation to choose ‘Unitary State’ as against ‘federalism’ or ‘confederation’ as its constitutional model. It is another for Sri Lanka to continue having all the powers that the Executive Presidency has enjoyed thus far by default, and still continue to believe in democracy, and believe that the nation is still a democracy.

The powers thus far enjoyed, exercised and executed by successive Presidents, barring possibly the post-Premadasa (1989-93) stand-in D B Wijetunge (1993-94) owed to their brutal majority in Parliament, in turn the reflection of massive public support. It did not flow from the Constitution, per se. The last time, thus, the President and the Prime Minister came from difference parties, the CBK-Ranil ‘cohabitation’ ended in SLFP President Chandrika dismissing the UNP Government of Prime Minister Ranil W (2001-04) before the completion of the mandated five-year term.

In doing so, neither the President, nor the political party/coalition that she headed otherwise, had to go through even the motions of engineering ‘defections’ from the ‘Government side’. The President’s purported ‘Executive’ powers were enough to do the UNP Government in. If today, the Sirisena camp is not thinking or talking in such terms, the dice is loaded against it in Parliament and outside – and not otherwise.

Indian scheme

No South Asian debate on post-colonial political and constitutional scheme can be complete without a reference to the Indian scheme. Sri Lanka is now working on a fourth Constitution, that too after 19 amendments in nearly 40 years of the previous one. Of course, 12-A was never taken up and was allowed to die.

Against this, India has a ‘dynamic’ Constitution since adopted in 1950, three years after the nation attained Independence. The statute in India has been amended more than a 100 times, though some of them related to procedural issues like extending the Centre’s rule in troubled border States like Punjab and Jammu & Kashmir, after such amendments became mandatory under an earlier amendment.

India’s is also the bulkiest Constitution. However, the polity and society in the country has not thought of dumping the present one and inheriting another in its place. Two earlier attempts at considering the possibility died a natural death. Despite all those amendments, India considers its Constitution, sacrosanct, capable of amendments but incapable of wholesale replacement.

Even at the height of the Emergency, Prime Minister Indira Gandhi gave up the idea and settled for a limited package under 42-A, again watered down from the original anonymous draft that appeared from nowhere and disappeared into nowhere. A second attempt during the Vajpayee-led BJP-NDA rule, if any, ended up in the Justice M N Venkatachalaiah Commission to ‘review the working of the Constitution’.

Distinct, different

In India, both the letter and spirit of the Constitution makes it clear that quasi-unitary/quasi-federal character of the State structure and the powers of the Executive are distinct and different from each other, or even one another. In terms of the Executive powers of the Union, there are clear provisions, as also case laws, declaring at no stage can the President act as an ‘autocrat’ – which is what Sri Lanka’s purported problem has always been since 1978.

In 1971, Prime Minister Indira Gandhi caused the early dissolution of the Lok Sabha, the Lower House of Parliament, and fresh elections a year ahead of schedule. When moved, the Supreme Court ruled that hers would still continue to be in operational control of whatever kind as the President could well become an ‘autocrat’, at least until the election of a new Lok Sabha and the elevation of a new Prime Minister. Or, that was the spirit of the Supreme Court verdict in the case, ‘U N R Rao vs Indira Gandhi’ (1971).

Later, during the Emergency years, Parliament enshrined the ‘Rao case’ ruling in the Constitution, through the omnibus 42nd Amendment Act. By replacing ‘may’ with ‘shall’ the amended Article 74 removed whatever limited option that may have been earlier available to the President to follow the ‘aid and advice’ of the Council of Ministers, headed by the Prime Minister.

Interestingly, the post-Emergency Janata Party Government of Prime Minister Morarji Desai and all those that followed it did not bother to amend this one clause in particular. They were drawing the distinction between a presidential autocracy and Parliament acting through the Council of Ministers with the Prime Minister as the head and President as the ‘guardian’ of the Constitution.

At a time when Sri Lanka is engaged, though not engrossed in making a new Constitution, it can consider visiting the Indian model on more issues in particular. Considering that the ‘national question’ is centred on the ‘federal issue’ so to say, the Indian experience has been one of returning to more of a quasi-model than of a quasi-federal structure, which it had evolved in the early decades since the birth of the Republic and the Constitution.

No subjective powers

Again, between them, Parliament and the Judiciary have drawn clear lines that the other does not really cross beyond a point. Thus, subjects such as Education and Law & Order (in matters of ‘terrorism probe’) and the like have been moved into the Concurrent/Central List so to say from the State List. Today, the Supreme Court of India, as if to ensure that the quality of education does not suffer, has ordered nation-wide common NEET entrance examinations for medical college admissions, and also fixed a 50-per cent upper-limit for the ‘affirmative action’ of ‘reservations’ kind in professional college admissions (‘Mandal case’ verdict, 1992).  The Legislatures and Governments have mostly stayed away and for good reasons.

The Legislature(s) also consciously chose not to interfere when the Supreme Court ruled that the majority of a Government has to be ruled on the floor of the House, thus taking away whatever ‘subjective powers’ that the President/Governors may have assumed (‘S R Bommai case’, 1994). Independent of this, the Supreme Court ruled in the ‘Indira Gandhi assassination case’ that the President and the Governors, as the case may be, shall abide by the ‘aide and advice of the Council of Ministers’, in granting pardon to condemned prisoners. The ruling meant that the President only had ‘objective’ powers and not ‘subjective’ powers in the matter.

In the Sri Lankan context, the question will also arise about the President’s powers to dismiss elected Provincial administrations and dissolve Provincial Councils. Against this, the Tamil polity in particular want absolute ‘federalism’ with possibly an ‘elected’ Governor, too. Though in the latter matter, the TNA itself may be divided after Northern Province Chief Minister C V Wigneswaran displayed that he has a mind of his own.

Otherwise, too, the Sri Lankan State and the majority Sinhala polity and society would want the powers to continue for all time to come, as a check against the possible return of LTTE/JVP kind of terrorism and the possibilities of their hijacking elected Provincial Councils, in the North and the South. Or, so could go the argument(s). The Northern Tamils in particular are still talking about federalism, and at times a confederate model.

Neither is going to help, either. What instead may be good to consider is the Indian model under Article 356, where the Union of India has the powers to dismiss elected State Governments and dissolve elected State Assemblies, when the President (acting under the aid and advice of the Council of Ministers) is ‘satisfied’ that a ‘grave situation’ has arisen…and the State Government cannot (be allowed to) function, as mandated by the Constitution.

Of course, the Northern Tamils and the TNA can still have their doubts and suspicions about the misuse of such powers by the Sri Lankan Centre. In India, the ‘Bommai case’ verdict visualised such a scenario, too, and ruled that all dismissals and dissolutions of the kind would be suo motu subjected to judicial review – and within three months.

The Sri Lankan irony is that the APRC during the Rajapaksa regime travelled across Europe and reviewed the South African experience and models but did not bother looking across the Palk Bay for a functional solution to the ‘national question’. The Tamil leaders, who were spending much of their time in India, and the pro-LTTE Diaspora that was in constant touch with Tamil Nadu politicians through those years, too, did not want to look at the Indian scheme and experience, which provided a ready reference book for a workable solution to Sri Lanka’s very own ‘national problem’!

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