By Nayana
The general election scheduled for next Wednesday will be the first to be held without a presidential election either immediately before or after. As such it has raised many questions about the respective powers and duties of the incumbent President and the newly elected Parliament.

The election resulted from a "hung" Parliament where neither of the two major parties had a working majority and had to rely on various smaller parties for support. This has provoked debate about the suitability of the present system of voting.

This column today will try to deal with these issues, in question and answer form for brevity, bearing in mind always that the answers are only as to the law. How a system actually works depends to a large extent on the aims and motivations of the users. As Alexander Pope said: "For forms of government let fools contest; that which is best administered is best."

Q: Who is more powerful under the Constitution, the President or Parliament?

A: Theoretically, sovereignty lies with the People. In terms of Articles 3 and 4 of the Constitution there is a division of governmental powers between Parliament and the President, with the former said to exercise the legislative power of the people and the latter the executive power of the people. However all branches of government are required to respect, secure and advance the fundamental rights of the people.

Q: What powers can the President exercise without Parliament?

A: The President is described as the Head of State, Head of the Executive and of the Government and Commander-in-Chief of the Armed Forces. He/she has the power to receive and recognize, and to appoint and accredit Ambassadors and other diplomatic agents, declare war and peace, and grant pardon to convicted offenders. The President is the Head of the Cabinet of Ministers, determines the number of Ministers and the subjects to be assigned to each and may remove a Minister from office. The President may assign to himself/herself any subject not assigned to any other Minister. The power to appoint Secretaries to Ministries is also vested in the President although such Secretary is thereafter subject to the direction and control of the relevant Minister.

Q: What are the powers and duties of the President in relation to Parliament?

A: The President is responsible to Parliament for the due exercise, performance and discharge of his/her powers, duties and functions under the Constitution and other written laws including the law relating to public security. The President is required to appoint as Prime Minister the Member of Parliament who, in his/her opinion, is most likely to command the confidence of Parliament. (This test is objective, not subjective, as decided in the cases involving the interpretation of a similar provision relating to the appointment of Chief Ministers by Provincial Governors). The President has the right to attend and address Parliament including the delivery of the Government’s policy statement, but may not vote. The President has power to prorogue Parliament from time to time and may dissolve Parliament anytime after the lapse of one year from the date of the last general election. The President is required to dissolve Parliament (whether within or outside this period) if requested to do so by a resolution of Parliament.

Q: What are the powers of Parliament?

A: Parliament by a simple majority may pass any law consistent with the Constitution, and may, by a two-thirds majority, amend the Constitution except in so far as such amendment may also require a referendum. In terms of Article 148 Parliament as "full control of public finance" and its approval is therefore required to pass the national budget and all supplementary financial measures. A proclamation of a State of Emergency by the President has to be approved by Parliament within 14 days. Parliament has power, after due process as set out in the Constitution, to impeach the President by a two-thirds majority vote, on grounds of mental or physical infirmity, or intentional violation of the Constitution, or treason, or bribery, or misconduct or corruption involving the abuse of the powers of his/her office. Parliament also has power, after due process, to require the President to remove superior court judges and certain high public officials such as the Commissioner of Elections, the Auditor General, the Ombudsman and members of certain statutory Commissions.

Q: What is presidential immunity and can it be removed?

A: While any person holds office as President, no proceedings shall be instituted or continued against him/her before any court or tribunal in respect of anything done or omitted to be done by him/her in his/her official or private capacity. Since the limitation period for the filing of proceedings is suspended during the President’s terms of office, the immunity does not appear to preclude the President from being sued or prosecuted after vacating office for things done while in office. No immunity attaches to the President in respect of acts done during a presidential election which form the subject matter of an election petition, but the immunity continues during other elections where the President is not a candidate. Presidential immunity does not prevent the validity of orders or acts of the President being challenged in proceedings to which the President is not made a party, eg. a challenge to the validity of an Emergency Regulation. The removal or modification of presidential immunity will require amendment to Article 35 of the Constitution that can be effected by a two-thirds majority vote in Parliament.

Q: What difference will the Seventeenth Amendment make to the above matters?

A: The Seventeenth Amendment has considerably enhanced the powers of the Commissioner of Elections as set out in this column in previous articles. All other features of that Amendment will only become operative after the appointment of the Constitutional Council, which is intended to be a body of distinguished persons not belonging to political parties appointed with cross-party consensus. After this Council is appointed, its members and not the President will be responsible for choosing persons to be appointed to the ranks of the higher judiciary, the Public Service Commission, Judicial Service Commission, Election Commission and Commission for the Investigation of Bribery and Corruption. Its approval will also be required for the appointment of a number of high officials such as the Auditor General, Attorney-General and Inspector-General of Police. The Seventeenth Amendment is also the first constitutional provision to accord official status to the Leader of the Opposition in Parliament.

Q: Are "hung" parliaments inevitable under the proportional representation system presently in operation?

A: The P/R system, by providing for the representation of parties in parliament in approximate proportion to the share of the vote received by them, makes it virtually impossible for one party to win the type of steam-roller majorities witnessed in 1970 and 1977 where parties with just over 50 per cent of the vote were able to secure two-thirds or more of the parliamentary seats. However in 1989, the first general election to be held under the new system, the ruling UNP came back with a comfortable majority. In the present Parliament of 225 seats, a party needs to win 113 or more seats to secure an absolute majority. There is no guarantee that event under a "first past the post system" there would not be a hung parliament - this happened in this country in the 1960s.