By D. G. B. de Silva
A former Ambassador of Sri Lanka

Should rhetoric be the basis for settling constitutional issues? No one except the PA politicians would agree on that. The tone was first set by none less than President Kumaratunga herself when she started rediculing the Constitution calling it "bahubuta" Constitution. Such terminology may have had a populist appeal in a situation where one is seeking to be in power but one could question whether a person elected under the terms of the Constitution who has taken the oath of office as President to uphold and defend the Constitution could engage in such populist denunciation of the Constitution. Now the wheel has turned full circle. The former critics are seeing the advantages conferred by the Executive Presidency to remain in power and are even thankful to the former President for introducing it. Ironically, that includes the present leadership of the LSSP whose former revered leader, Dr. N. M. Perera was one who presented a sound critical analysis of the Constitution.

The present Constitution has been subjected to scrutiny since it was promulgated in 1978 and many amendments have been introduced to it during this period which goes to show that it is not perfect. Indeed nothing is perfect and Constitutional makers make provision for amendments as and when required. Speaking of the 1987 constitution the analysis presented by Dr. N. M. Perera who was a foremost authority on Parliamentary system of government in his Critical Analysis of the Constitution (published in June 1979), submitted not only one of the best but a balanced critical commentary. There is no rhetoric or personal rancour against any one as now resorted to. It was the contribution of a politician who had achieved academic excellence in his fields who was mellowed by long Parliamentary experience and possessed best of human qualities - note his dignified exit from Mrs. Bandaranaike’s cabinet-despite his having been the leader of a revolutionary political party. The nature of the debate on the constitutional problem today stand in direct contrast.

The most conspicuous feature in today’s approach to the issue by government spokespersons is the naked display of the absence of even a vestige of academic brilliance of the type displayed by Dr. N. M. Perera. What one sees around today is only a dismal exposure of lowly populist politics, rhetoric of the worst type and personal rancour against those who want to approach the problem in a conciliatory way. Is this due to lack of academic excellence or political inexperience? Or else, due to a propensity towards creating chaos as a vehicle to rise and remain in power? To put it in another perspective is it not a "bull-in-china-shop" attitude in politics?

The government has already lost its majority in the short-lived Parliament and the solution it found too failed. It is a situation where, as Dr. N. M. Perera described, the Executive (President) "no longer represents the will of the people". The General Election that the President has called for is one where she is trying to regain that "lost will" of the people. If her party does not succeed in winning the majority in the elections it would be re-confirmation that she is not representing the will of the people. The Constitution is not the be-all and end-all of things. It is only an instrument for good governance as conceived at a time.

The President and her party must accept the verdict of the people. To claim that the President was elected direct by the people who have given a mandate to her to rule and she must play her role unimpeded by constitutional constraints is mere chicanery, good for people who do not understand the Constitution, notably, its checks and balances. The office of the President cannot be conceived independent of the Parliament as our later discussion will show. The transitional provision provided in the draft Constitution for President Kumaratunga to continue as Executive President for the full elected term when, as events turned out, she "no longer represented the will of the people" shows the extent of disregard to the "peoples’ will."

Faked Conspiracy

At political level the government has presented the political problem facing the government to the country as a conspiracy against the government. The conspiracy theory is breeding by leaps and bounds. It is a catch word in Sri Lankan politics like the word "Pact" which could create immediate reaction in the country. This is not only an attempt to deceive the people and seduce their minds through which their right to elect the government they want is interfered with. A weak government which did not receive a strong mandate from the people must fall when deep division arises within its main ranks and the few "prop-up" supporters decide to abandon the ship. The latter are an uncertain factor.

These are situations not infrequent in other countries where governments are formed by groups which are delicately balanced. Where is the conspiracy? Isn’t it only a catch word for creating chaos? The government must accept the independent verdict of electorate and stop blaming others for this situation. To speak of conspiracies against the government is absolute thrash. The government cannot claim that it received a mandate from the people and that this trust is inviolable. There is no such thing. Last year people gave a bare mandate delicately balancing the power between the government and the opposition. That is a signal to political parties that they must work together.

Mr. Anura Bandaranaike who has rejoined the PA recently has been going round the country saying that the President would dissolve the Parliament annually until the UNP gets tired of elections. (The Island report dated November 20, 2001 on UNF brief to Diplomats) He has also said that the President would be proroguing the Parliament in between. He repeated it during his recent press briefing held at the Department of Information. (The issue has been elevated to a major one in the election debate). He has been joined by others in the chorus surprisingly by the leader of the LSSP who has put himself in the same class. The country had statesmen-like responses from the LSSP leaders in the past on the constitutional question as seen from the excellent analysis of the situation made by Dr. N. M. Perera. The "bull in china shop" attitude as engaged in by the political leadership on the government side is no solution to the constitutional problem. It can only aggravate problems and impose additional burdens on the people who are already encumbered with serious questions. One has to take lessons from men like Dr. N. M. Perera but not the way the present leadership of the LSSP is doing.

Theoretically speaking all what Mr. Anura Bandaranaike and others say is possible but what reactions would that receive in the country not to speak of the Parliament? Wouldn’t that also open prospects of a worst kind exposing the President to a course of action by the Parliament as defined in the Constitution? Specifically, the Parliament could by resolution ask the Supreme Court to inquire and report if the President has been guilty of intentional violation of the Constitution or other specified action which make her liable to such action by the Parliament. Since such procedures require a 2/3 majority support in Parliament it may be considered a hypothetical situation. If so isn’t what is now spoken of as a future solution to the constitutional crisis, i.e., for the President to keep on dissolving the Parliament and proroguing it in between ‘until the UNP gets tired’ as Mr. Anura Bandaranaike said, could also be dismissed as a hypothetical situation.

Mr. Bandaranaike could not be speaking without good reasons - after all he was the Speaker of the Parliament for nearly one year though he seemed to be out of the country more than in - but it must be said to the credit of the President that she seems to know the limitations on her powers more than Mr. Bandaranaike, though earlier she went round deprecating the Constitution calling it a "bahubuta" constitution. The President was in a mood to acknowledge the reality of limitation on her power while speaking of her powers to authorise expenditure (from the Consolidated Fund) for three months from the expiration of the current budget on December 31st when she said that a new budget can then be passed within this period." (The Island, November, 14th).

Overlooked Public Finance

Is such a scenario as described by Mr. Bandaranaike, i.e., the President dissolving the new Parliament after one year from the date of summoning practicable? Obviously, Mr. Bandaranaike has overlooked that the issue of public finance required for specified public services, i.e., to run the government’s program, (let us say the President’s program since the strategy is not to allow the UNP to form the government even if it gains the majority in Parliament or to carry on the government if it is allowed to form the government).

Even though the President claimed that she would be able to authorise expenditure up to three months what happens at the expiry of three months? To use the powers to authorise expenditure for another 3 months she will have to wait for another 9 months or more till she could dissolve Parliament and fix the new date for summoning it. Mr. Bandaranaike says the President will prorogue the Parliament in between. That is possible as she did in October 2001; but such prorogation does not permit her to authorise expenditure from the Consolidated Fund. As such we will face a situation where funds from the Consolidated Fund cannot be authorised by the President if she does not permit the party commanding the majority in the Parliament to form the government and the Appropriation Bill to be presented. Even if she resorts to appointing a minority government it is possible that it may not get sufficient votes to pass the budget.

The result will be that expenditure for any sorts cannot be authorised after the 3 months period lapses. The question of expenditure for "specified public services" as envisaged in a budget does not arise. Even more importantly without the Appropriation Bill having been passed, the government (even if a minority government is formed), will have no authority to impose taxes, or augment existing taxes (as well as reduction of taxes). It is through the Appropriation Bill that these impositions for the collection of revenue required to meet expenditure itself could be authorised. The Appropriation Bill can be passed only through a motion in Parliament. It has to be introduced by a Minister and should have been approved by the Cabinet or in such manner as the Cabinet of Ministers may authorise. That requires a government commanding a majority.

In this situation both the collection of revenue (unless already provided under any other law) and the expenditure commencing from 1st April, 2002 cannot take place if the Appropriation Bill, or at least a Vote on Account" is not passed before that.

It would be frightening to think of the scenario that could emerge in a situation where there would be such impediments on the collection of revenue on the one hand and on authorising expenditure from the Consolidated Fund on the other hand. There is no alternative for the President but to come to terms with the present opposition if they command the majority in Parliament. Obviously, the President understood this point but not Mr. Anura Bandaranaike. There was no rhetoric when the President made the observation that a new budget can then be passed within this period". (3 months). The tone was serious - one which took full cognizance of the Constitutional position that Parliament alone has "full control over public finance. It is like the cautious statement made by Dr. G. L. Peiris when he said that a French type of government will have to be put in place in the event of an opposition victory. He understood the Constitutional constraints Both President’s statement and Dr. G. L. Peiris’ statement point to a responsible way of approaching the problem. One can ignore the little rhetoric the President introduced when she said that she was surprised that those who introduced the Executive Presidency is unaware of the powers that it carries. If one gives too much attention to that statement then the accolades I showered on the President as against Mr. Anura Bandaranaike are negated. So let us concede that type of little jibes is characteristic of the President but she may only want to score a small point. Let us concede that to her.

The Constitutional situation is complex and tricky that one cannot be taking "bull - in -the - china shop" attitudes on this issue. A primary principle of the Constitution is that the President is "responsible to Parliament for the due exercise, performance and discharge of (her) powers, duties and functions under the Constitution and any written law, including the law for the time being relating to public security." This is further confirmed by the Oath of office she has taken to "faithfully perform the duties and discharge the functions of the office of the President in accordance with the Constitution and the law" and that she would be faithful to the Republic" and would, to the best of her ability, "uphold and defend the Constitution"

Parliament’s Supremacy

There is no questioning of the basic tenet of the supremacy of the Parliament in relation to public finance. It is in black and white in the Constitution under Article 148 which says Parliament will have full control over public finance;" and that no tax, rate or any other public authority, shall be imposed, except by or under the authority of a law passed by Parliament or of any existing law". It is against this provision that Dr. N. M. Perera, former Minister of Finance and authority on the constitution and Parliamentary practice said that "it (Parliament) would dry up the finances without which the Executive would be atrophied." As he said it is only if the President does not give way as (she) no longer represents the will of the people, the whole machinery of government would be dead locked, and the Constitution and Parliament itself would be the butt of public ridicule." That includes the President. The leader of the LSSP should explain this position of Dr. N. M. Perera without trying to misinterpret his statement. I have twice before defended Dr. N. M. Perera’s position and I am doing it now for a third time. What all this shows is, quite opposed to Mr. Batty Weerakoon’s assertion, the President alone does not constitute the only power centre under the Constitutions. When Dr. G. L. Peiris stated that there are two power centres he was stating the obvious, i.e., what is written in the Constitution.

Fiefdom or Serfdom?

The idea of dissolving Parliament and holding elections annually or more often which Mr. Bandaranaike envisages that the President would do in the event her party does not get a majority is an insult to the voters of this country. In other words it means that Mr. Anura Bandaranaike and others who think alike, treat this country is a serfdom where people should be ready to dance to the tune set by the political leadership at the expense of their day to day concerns. Isn’t what Mr. Bandaranaike contemplates an intentional violation of the Constitution or its use for the country’s benefit but for the partisan gain of a political party to prevent the opposition from forming the government? Conversely, it could be seen as an attempt to keep the ‘crown’ within the ranks of a certain group even against the verdict of the voters.

I have pointed out earlier that the President had no intention of giving up the Executive Presidency. She had seven long years to achieve this if she really wanted to. Then she wanted the transitional arrangements. We have it on the authority of noneless than Mr. Anura Bandaranaike himself that President (Kumaratunga) never had any intentions to give up the Executive Presidency. "Those powers will never be given up. (She) gave a dead rope in 1994. The Leftist parties swallowed the rope; now they cannot extricate it. I do not think she has any future intentions to abolish it," he has said. (Mr. Anura Bandaranaike: Interview with ‘Ravaya’ newspaper dated October 24,1999).

Going by this record and the change in Mr. Anura Bandaranaike’s tune where he is now extolling the powers of the Presidency to not only to manipulate the Parliament but also the voters to keep President Kumaratunga in power in a situation when she ‘no longer represents the will of the people’ (Dr. N. M. Perera) for the period of remaining five years, one is bound to raise the question whether the manipulation which brings no benefit to the country would be to hold on to power until he is ready to step in. If this is right what is at stake seems to be a struggle to retain a ‘dynastic’ title. How else could one explain Mr. Bandaranaike’s boast that the President would keep on dissolving and proroguing Parliament until the UNP gets tired and gives up? According to this conception the country is a fiefdom or serfdom; and people have no rights; and no hunger. They have only to keep watching palace intrigues and keep on voting year after year or even at shorter intervals. In other words the electorate is to become the plaything of a bunch of politicians who want to remain in power by hook or crook.

‘Parivasa’ Partners

How would PA’s ‘parivasa’ partner, the JVP feel the breeze wafting from Mr. Bandaranaike’s claims? They are quiet on the subject. All that they want to see now is scoring points to defeat the UNP even if that means subscribing to what Mr. Bandaranaike says about dissolving/proroguing Parliament at the President’s will. Where is the credibility that the JVP boasts of? Aren’t they real opportunists which leads us to complete the lines of JVP’s slogan. "Unuth Ekai; Munuth Ekai. Dan Mun Okkoma Ekai"?

To the JVP’s credit it must be said that they really made the PA to eat humble pie in the public through the ‘parivasa’ role within 30 days; but allowing them to enjoy the perks. Would a future PA-JVP partnership on which the President is banking on, be one where the roles would be reversed and JVP would play second fiddle to could manipulate the Constitutional powers the PA? It is the only in such a situation that Mr. Anura Bandaranaike or any other could manipulate the Constitutional powers.