Midweek Review
Constitutional convulsions!

From Executive to ‘Hostage’ (de facto)
By I. P. C. Mendis
That the Constitution of a country is the Supreme Law of the country is not in dispute. Sri Lanka’s Constitution declares it to be so. People, quite rightly, get very agitated about what they see as a violation of the provisions of the Constitution. Agitation are often stage-managed for political reasons. At times, dubious interpretations are given to create impressions of violations, depending on which side of the political divide one is. "Mrs. Sirimavo Bandaranaike’s appointment as Prime Minister through the Senate in July 1960 is one such instance. Dr. N. M. Perera, although defeated in the general elections in 1977, was patriotic enough to warn the country of the inherent dangers of the 1978 Constitution and the chaotic scenario that might emerge, through a publication. Much of it has already been acknowledged now. The UNP and certain other sectors almost went berserk at President Kumaratunga calling for a Referendum for amending the Constitution despite expert opinions to the contrary and Article 3 of the Constitution, unambiguously declaring that the "sovereignty is in the people and is inalienable." The arguments blared forth centred around a constitutional right of the legislature to discuss any amendment first and pass it with a two-third majority, prior to a referendum - an argument which implied sought to give supremacy to elected representatives of the people over the sovereignty of the people! Rightly or wrongly, whatever arguments are there to the contrary, the sovereignty constitutionally bestowed on the people by Article 3 was thwarted by their own elected representatives! It was the letter of the law that mattered then!

Kabaragoya/Talagoya scenarios

It is indeed fascinating yet squeamish to observe how rigid arguments and stances in defence of the Constitution as the Supreme Law of the country can metamorphise into more liberal or flexible interpretations almost overnight to suit given situations through sometimes untenable arguments. Such ‘volte face’ is pithily described in the very apt Sinhala saying that the Kabaragoya flesh becomes Talagoya flesh when one has decided to eat it! Although un-related to the Constitution, one example to illustrate this pithy saying is where unrelenting critics who saw everything horrendous in the 44 member Cabinet of the previous regime describing it as a ‘Jumbo’ Cabinet, now justifying a Cabinet of 53 with more to be accommodated if more can be baited - based on the most specious arguments.

The Constitution was put to serious test for the first time with the Executive President and the legislature being of different political hues. Kabaragoya flesh fans like the Ira Handa during election time, lost no time in advocating a near surrender by the President of her powers to the new Prime Minister. Among the arguments adduced were-

(a) that the UNP/UNF had received a mandate to form the new "Government" and had the unfettered right to choose its Cabinet of Ministers and subjects and functions, including Defence. One cannot have a literal interpretation of the Constitution, they opined. (b) that Presidential powers can be abdicated voluntarily without going through the process of constitutional amendments. (c) that the President’s consultation with the Prime Minister should be mandatory and not discretionary. Hence, the words "where he considers such consultation to be necessary" appearing in the Constitution, was argued to be mandatory. (d) that the President has ceased to represent the will of the people; it is not the President but the new Prime Minister who represents the will of the people now since the President has lost the Parliamentary majority. (e) that the President had lost the mandate to rule and claim the powers under the Constitution. (f) that a precedent had been created by President Wijetunge giving a free hand to the PA Prime Minister in 1994.

Definition of "Government"

In terms of Article 30(1) of the Constitution, the President is the Head of State, the Head of the Executive and of the Government and the Commander-in-Chief of the Armed Forces.

The President, by virtue of her being Head of State, and of Government, is part and parcel of the institution recognised as "Government". To say that there has been a change of government per se as interpreted in previous Constitutions by reason of a change in the political/legislative structure would be to consciously and deliberately ignore or distort the existing constitutional structure. Although one may agree that the situation that has emerged is problematic, the Constitution does not permit the institution of "Government" to be considered in isolation of the Executive President. The separation of powers between the President and the legislature is absolutely clear. If this is not to be recognised (as it is not popularly viewed), any change should necessarily and democratically come via an amendment to the Constitution and certainly not administratively or extra-legally, quid pre quos or voluntary abdication.

We are dealing with the Supreme Law of the country and not somebody’s private property! Executive powers are vested with an Executive President elected separately on different occasions by the sovereign people in terms of Article 30 (2). If the President had to abdicate her powers, the framers would have anticipated such eventuality and provided for it in no uncertain terms. Indeed, the introduction of the institution of the Executive Presidency was declared to be for the sake of stability and continuity. The framers having miscalculated a defeat of the ruling party at any time is of course, another matter! While the country had moved away from the republic and Soulbury Constitutions, the mood purposely created in the country is that the old order of the Prime Minister being the Head of Government has not apparently changed.

In interpreting a law, courts often take cognizance of the intentions of the legislature. An article in ‘The Island’ of 11th December 2001, poses the relevant question - "Did the framers intend that the country should go for a one hundred percent Presidential system? Or, did they mean to retain major elements of the Parliamentary system?"

Intentions

The existing Constitution is just little over 20 years old and minds have not get so rusty as to forget the intentions of the framers and the way the Constitution was thrust hastily on the country intoxicated with a five-sixth majority. In fact, some of the framers are still in the legislature. President Jayewardene’s infamous boast that he can do anything but make a man a woman and that he had rolled up the electoral map for 20 years, should reverberate loud and clear leaving no doubt whatsoever about the intentions of the framers to concentrate executive power with the Executive President. Of course, if further proof is necessary, we had it from the mouth of President Premadasa that he had only the powers of a peon when he was Prime Minister! If one is bold enough to contest that the Constitution was hastily enacted, the 17th amendments so far made to this document cynically referred to as a ‘periodical’ - should bear ample testimony. The intoxication was shamefully displayed when one of the amendments was intended to permit a TULF member to cross over to the government despite an already existing huge majority!

Subject of Defence

As for the subject of Defence, Article 4 of the Constitution is very explicit that "the executive power of the people including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the people." This is mandatory. How the President could exercise the executive power of the people in the area of Defence without holding the portfolio of Defence and being directly responsible for the proper discharge of the connected functions is indeed a question mark.

Oath of Allegiance

The President herself has taken the oath of allegiance to the Constitution and to uphold and defend it. The subject of Defence and certain other powers have been wrested practically under ‘duress’ doing violence to the Constitution. If not under ‘duress’, why should have there been threats to bring a million people on to the streets? It was not very long ago that one found defenders of the Constitution vociferously campaigning against the proposed referendum. They now seek to take cover under a so-called precedent created by President Wijetunge.

The subtle difference between him and President Kumaratunga is that the former was not elected but only an Acting President in terms of Article 40 (c) with less than one and a half years to go. He had only 3 months when CBK took over as Prime Minister. Anyhow, two wrongs do not make a right. President Jayewardene at the beginning was also not an elected President but only constitutionally deemed to have been elected. President Kumaratunga derived a greater moral responsibility towards the people in being elected by a 64% majority. Specious arguments only tend to camouflage a hopeless situation where through the euphoria of a decisive victory in Parliamentary elections, a situation has been created for the President to shed some of the important constitutional powers in apparent violation of the Constitution. Can "piracy" be the word for it?

Abolishing Executive Presidency

The consensus in the country is that the Executive Presidency should be abolished and the Westminster form re-introduced. The UNP in Opposition latterly was against the abolition of all the powers. It wanted to retain some although it did not elaborate. Abolition of powers fully or partly is another matter. That has to be legally and constitutionally done as was the argument when the Referendum was proposed. The President has no right morally, constitutionally or voluntarily to abdicate powers flowing from the Constitution which she had sworn to uphold and defend - notwithstanding precedents which are questionable. But did she have a choice? The dice was loaded against her and she had to give in. The President is impeachable for "intentional violation of the constitution" in terms of Article 38 (2). Yet, that will remain just another provision in the Constitution. "Quis custodiet ipsos custodes" - (Who will guard the guards themselves?). The question may not arise in the absence of "intention". Will it be a matter of time, even otherwise? Have we not in a subtle way suspended critical parts of the Constitution extra-legally, unconstitutionally and in defiance of solemn oaths of allegiance to the Constitution to uphold and defend it. Have we not stealthily reverted to the defunct Soulbury and Republican Constitutions in parts? Can we as a nation hold our heads high internationally as defenders of Democracy and the Rule of Law? To take up a position that the 1978 Constitution enjoins the President to follow custom and usage, as some are prone to do, would be a half-truth as Article 33 (f) permits that discretion only if they are not inconsistent with the Constitution.


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