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There appears to be general agreement that the main cause for the current political malaise in the Country is the failure of the framers of the 1978 Constitution to have regard to the likelihood of changes in political alignments in the Legislature in designing a constitutional structure which had quite deliberately provided for a politically independent source of authority in an elected President for the exercise of executive power which was linked in part to a Parliamentary majority which could be of a different political orientation, while omitting to provide a constitutional mechanism for adjusting differences between them and thus avoiding political gridlock. It seems obvious that if the imperative procedures for constitutional amendment cannot be activated for lack of the required two-thirds majority of votes in the Legislature, there is no way to avoid a total breakdown of executive government but to fashion an extra legal modus vivendi that would enable the two contending parties to work together not only for mutual political survival, but also in the interests of the country. The French arrangement described as “cohabitation”, though attractive at first blush, appears to be an overly facile solution in the Sri Lankan constitutional context, which is more rigid in texture leaving little room for the free play of political influences and other pressures. Differences in constitutional structures and political culture in the two countries give rise to serious misgivings concerning the likelihood of its success, even in the short term pending an appeal to the electorate as a last resort. Even the very concept of “cohabitation” with its undertones of a cozy atmosphere of togetherness seems singularly inappropriate to describe a political milieu of factionalism and mutual recrimination. Indeed it seems far removed from even a state of strained domesticity considering the volatile atmosphere of the Cabinet room, which presents the picture of a lone ranger under siege battling a few pugnacious individuals who do not show much evidence of political maturity and sagacity. More fundamental causes are the constitutional provisions, which are heavily weighted in favour of the President, and are not conducive to compromise, especially when exacerbated by clashing personality differences that make cohabitation a pretence and a masquerade. In such a situation attempts at arm- twisting and threats are hardly prudent tactics. This article is intended to focus attention on the discrepancies and dissonances arising from certain features of the existing constitutional structure in Sri Lanka which is cast in precise legal language (unlike the somewhat less legalistic language of the French Constitution) and the general incompatibility of these provisions with the suggested pattern of political conduct envisaged by the proponents of the cohabitation theory. Prior to 1978 for several decades Sri Lanka had been accustomed to what has been generally known as the Parliamentary system of executive government as distinct from the Presidential system. A radical change was effected in 1978 on the supposed ground that the latter afforded a more stable government although there was no credible evidence to support the claim that earlier Cabinets (except for the Government of March 1960) were of short duration. This was the case in France where between 1946-1958 there had been some twenty-five Cabinets that did not last for a period longer than seven months on an average. There was thus sufficient justification for the assumption of extraordinary powers by President General de Gaulle under the Constitution of the Fifth Republic when he was elected to that office. But the language used in that Constitution in regard to the executive power was less precise and legalistic and allowed a greater degree of flexibility in regard to the actual exercise of these powers which President de Gaulle exploited through a process of interpretation in ways that transformed the character of the Presidency, which less charismatic successors in office could not sustain with the swings of the political pendulum that found them yoked to Prime Ministers of a rival political group as was the case between Mitterand and Chirac, Mitterand and Balladur, and later Chirac and Jospin. The constitutional experiment of cohabitation was feasible in that country having regard to the provisions of the French Constitution, which makes it possible. Although President de Gaulle’s example presumably inspired President Jayewardene’s own zeal for the Executive Presidency, his long involvement with Parliamentary politics evidently did not lead him to effect a complete severance with the Parliamentary system which led to the hybridization that we find in Sri Lanka and the problems this has created which is further complicated with the concept of “responsibility to Parliament” that was simultaneously introduced. That concept contemplates responsiveness and accountability to Parliament coupled with sanctions of votes of censure, the full effect of which is however negated in Sri Lanka by providing for the virtual irremovability of the President and a fixity of tenure (subject to impeachment procedure) and the right to dissolve Parliament after the lapse of one year or upon a second defeat of the Appropriation Bill. Reliance on the efficacy of the electoral mandate at a Parliamentary election is of no avail because it does not supercede or override the electoral mandate, which the electors grant to the President for a term of six years, which is of equal efficacy and coeval validity. The powers, privileges and prerogatives of the President remain untouched and are irrefragable unless they be changed by the procedure prescribed for Constitutional amendment. Their legal efficacy is in no wise diminished by the winds of political change. The modalities for their exercise or performance do not change and are not altered by reason of changes in political alignments or “horse-deals” within the Legislature. The only mode by which their legal effect can be changed is by express Constitutional amendments. If not so amended they remain in full force and vigour. The Constitution of Sri Lanka does not recognize implied amendments of the Constitution (Article 82 (6) ). So how can formal or informal agreements or understandings arrived at voluntarily effect a radical change or transformation of constitutional institutions that have functioned for nearly two decades? Clearly established constitutional conventions are however relevant in constitutional interpretation. They come into existence over time and are not instant creations for political convenience. To appreciate the far-reaching changes that were introduced into the constitutional structure, it is necessary to refer at some length to the differences in the underpinnings beneath the executive power that existed under the 1972 Constitution and contrast them with the changes brought in by the 1978. Constitution. They are the following: (1) Under the 1972 Constitution, the Legislature (the National State Assembly) was the supreme instrument of State Power (Article 5) and that body alone exercised the Legislative Power. It exercised the Executive Power through the President and the Cabinet of Ministers and the Judicial Power through the Courts and other institutions created by law for the administration of justice. Under the1978 constitution there is a bifurcation of these governmental powers. The Legislative Power is exercised by Parliament. Likewise the Judicial Power is exercised by Parliament through courts and other institutions created by the Constitution and the law. But the Executive Power, including the defence of the country is required to be exercised by the President of the Republic (Article 4(b) ). The repository of the executive power is thus the President. (2) Under the1972 constitution although the President is declared to be the Head of State (Article 19) and Head of the Executive (Article 20) , he is nominated for appointment to the office by the Prime Minister (Article 25) and may be removed from office upon a resolution of no-confidence passed by the National State Assembly ( Article 26). Under the 1978 Constitution the President is both Head of State, Head of the Executive and the Government and Commander-in-Chief of the Armed Forces. He/she is elected by the People for a term of 6 years (Article 30&31) and is removable only by impeachment (Article 38). (3) The decisive provision which tilts the balance in favour of the Prime Minister as against the President in the1972 Constitution (which is wholly absent in the 1978 Constitution) is Article 27(1) which is as follows:- 27(1) The President shall always except as otherwise provided by the Constitution act on the advice of the Prime Minister or of such other Minister to whom the Prime Minister may have given authority to advise the President, on any particular function assigned to that Minister. Likewise Article 94(1) of the 1972 constitution leaves no room for doubt as to who determines the formation of the Cabinet of Ministers which is “charged with the direction and control of the Government of the Republic”(Article 92(1)). 94(1) The Prime Minister shall determine the number of Ministers and Ministries and the assignment of subjects and functions to Ministers. Under the 1978 Constitution the position is reversed: Article 44(1) provides: 44(1) The President shall from time to time in consultation with the Prime Minister, where he considers such consultation to be necessary-
(a) determine the number of Ministers of the Cabinet of Ministers and the
Ministries and the assignment of subjects and functions to such Ministers
and (2) The President may assign to himself any subject or function and shall remain in charge of any subject or function not assigned to any Minister under the provisions of paragraph (1) of Article 45 and may for that purpose determine the number of Ministries to be in his charge…………..(Article 45(1) refers to the appointment of Ministers who are not in the Cabinet).
(4) Equally illuminating are the contrasting procedures provided for the “decapitation” or the use of “the guillotine” for the hapless Minister destined to suffer a premature demise. Under the1972 Constitution it is the Prime Minister who decides their fate. (This is the position in Britain also where a Cabinet Minister who was dismissed without warning, along with other Ministers by Prime Minister McMillan bemoaned the fact that he had been sent off like a parlour-maid who had been found pregnant!) Article 94(3) states: The Prime Minister may at any time change the assignment of subjects and functions and recommend to the President changes in the composition of the Cabinet of Ministers……. And upon such advice being given Article 96(a) provides that he may be removed by a writing under the hand of the President.
Under the 1978 Constitution the power to remove a Minister is vested in the President and is to be found in Article 44(1) quoted above and in Article 44(3), which embraces the right of the President to drop an incumbent Minister. Article 44(3) states that the President may at any time change the assignment of subjects and functions and the composition of the Cabinet of Ministers. Likewise it is recognized in Article 47(a) which permits the Prime Minister or a Minister of the Cabinet to be removed by a writing under the hand of the President.
(5) There is also a noteworthy difference in regard to the power to dissolve the Legislature as far as the two Constitutions are concerned. Under the 1972 Constitution it was exercisable by the President under Article 99(2) if: (a) the National State Assembly rejected the Appropriation Bill or (b) if it passed a vote of no confidence in the Government or (c) if the N.S.A. rejected the Statement of Government Policy at any Session other than the first Session and the Prime Minister advises a dissolution or forty-eight hours have elapsed after these events have occurred without the President having received such advice.
Under the1978 Constitution on the other hand, the President may dissolve Parliament at any time after the lapse of one year after an election or upon a request for dissolution made upon a resolution of Parliament (Article 70(1)). However the President shall dissolve Parliament if the Appropriation Bill is defeated on two successive occasions (Article 70(1) proviso (d)). Parliament has no independent power to dissolve itself, although it can by its non-co-operation and hostile action indirectly bring about that result. It may also be observed that the power of the Sri Lankan President to dissolve the Legislature is not a power, which even the U.S. President enjoys, and is calculated to make the Legislature more subservient to his wishes.
(6) Except in respect of any repeal, amendment, or replacement of the Constitution under the 1978 Constitution, the President has the power to submit any matter, which in the opinion of the President is of national importance, to the People by referendum (Article 86). Even though a Bill has been rejected by Parliament it may be submitted for approval to the People at a Referendum (Article 85(2)). By virtue of such powers he can appeal to the electors over the head of Parliament. Such approval does not have the effect of giving such measure any legal efficacy unless it conforms to the procedure prescribed for legislation, and does not expand the sphere of executive action, if changes in the law are required. In addition to the powers and functions expressly conferred by or assigned to him/her by the Constitution or by any written law, the President is empowered by Article 33(d) ”to do all such acts and things not inconsistent with the provisions of the Constitution or written law as by international law, custom or usage he is required or authorized to do.” This is a somewhat mangled version of Article 21(g) of the 1972 Constitution which was intended to fill any casus omissus in the case of functions of a formal or ceremonial nature, which a Head of State may perform as recognized by international usage.
(7) Although Professor A.J. Wilson in his book on The Gaullist system in Asia: The Constitution of Sri Lanka (1980) appears to have taken the view that the President of Sri Lanka, in addition to the cornucopia of powers could also “legislate by referenda treating a hostile Parliament as an irritation to be ignored;” I do not agree that laws can be enacted in such a summary manner by-passing the express provisions of the Constitution for the enactment of legislation. Wilson however, consoles us with a pious wish: “It is highly unlikely that the present incumbent of the supreme office (J.R.Jayewardene) will resort to such methods being himself a committed Parliamentarian “(pg 50) Not everyone would agree with this optimistic hope.
Although Article 4(b) of the 1978 Constitution makes no reference to the President sharing the executive power with any other body (which was apparently a deliberate omission considering that the corresponding provision in the 1972 Constitution – Article 5(b) referred to both the President and the Cabinet of Ministers as persons exercising executive power), there is in Article 43(1) (of the 1978 Constitution) an indication that the executive power is to be exercised jointly by the President and the Cabinet of Ministers of which he is a member and the Head. That provision states: 43(1) There shall be a Cabinet of Ministers charged with the direction and control of the Government of the Republic, which shall be collectively responsible and answerable to Parliament.
“Responsibility to Parliament” in the context of British constitutional law means in effect that the holders remain in office so long as they enjoy the confidence of Parliament and a vote of no-confidence in the Government results in the dissolution of the Cabinet of Ministers ( Vide Article 49(2)). Notwithstandng such a dissolution of the Cabinet the proviso to Article 49(2) states that the President shall continue in office. Unless and until the President is able to form a new Cabinet of Ministers which can retain the confidence of Parliament there is a resulting situation of stalemate.
Although Article 42 makes the President responsible to Parliament for the due exercise and discharge of his powers, duties and functions under the Constitution and any written law, any expression of the loss of such confidence does not affect his/her continuance in office by reason of the fact that Article 38 alone determines the circumstances in which the office of President becomes vacant. If the Prime Minister resigns his office – upon a vote of no-confidence, and the Cabinet of Ministers stands dissolved and the President does not dissolve Parliament under Article 70, the question arises whether under Article 4(b) of the Constitution, the President cannot in her own right exercise executive power. If this were possible, then the Sri Lankan Constitution would become a “fully Presidential system” of Government like the United States and not “semi Presidential” as in France.
Perhaps the better view is that in the event of a vote of no-confidence in the Government, the President ought to appoint a new Prime Minister and a new Cabinet of Ministers having regard to the provisions of Articles 43,44,45 and 46, and if necessary seek a vote of confidence from Parliament. The President by virtue of the mandate given at the last Presidential Election has in the exercise of the extensive powers given by the Constitution, a constitutional obligation to endeavour to govern in the manner contemplated by Article 43 and Parliament ought to act responsibly and give the new Cabinet a fair trial and opportunity to govern. It is both fallacious and implausible to contend that the result of the General election of December 2001 to elect Members of Parliament is a reversal of the mandate given an year earlier to the President at the Presidential Election of December 2000, at which the present Prime Minister was the defeated candidate. The two elections held are for two different constitutional purposes, though there may have been no significant differences on issues of policy. If as observed by Professor Sartori Giovanni, the semi-Presidential system of executive government in Sri Lanka inclines more towards the fully Presidential system rather than the semi-Presidential type, then the President has, in my view, needlessly renounced her undoubted right to appoint to the Cabinet of Ministers at least some Members of Parliament of her own Party in whom she has confidence, rather than having to preside over a group of 32, a good number of whom are evidently hostile.
The element of personal animosity and acrimony within the Cabinet would make cohabitation extremely difficult if not a hazardous business as it has turned out to be. If cohabitation is to be given a fair trial, there has to be serious re-thinking on the question of the composition of a new Cabinet. It has been observed that in France no Prime Minister has been keen to diminish the assumed powers of the President in office, as they have Presidential ambitions themselves. Considering that President Kumaratunga is on her second term and is ineligible to contest again, the Prime Minister is unlikely to show great enthusiasm for circumscribing those powers if perchance he has cast a coveteous gaze on that office.
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