Significance of the Supreme Court Judgment On 19A



article_image

By Neville Ladduwahetty


The primary intent of the 19th Amendment is to reduce powers of the Executive President provided in the 1978 Constitution. This was to be achieved by: (1) Transferring most of the Executive powers of the President to a Prime Minister and a Cabinet of Ministers, and (2) Transferring the powers of the President to appoint the Chairman and members of Independent Commissions after seeking observations of the Prime Minister (PM), Speaker, Leader of the Opposition (LO) and two nominees, one of the PM and the other of the LO as per the 18th Amendment, to a Constitutional Council who would be authorized to appoint the Chairman and members of Independent Commissions as called for in the 19th Amendment.


The Supreme Court in its determination on the 19th Amendment, "…came to the conclusion that the transfer, relinquishment or removal of a power attributed to one organ of government to another organ or body would be inconsistent with Article 3 read with Article 4 of the Constitution…", without the approval of the People at a Referendum. The judgment also stated: "It establishes conclusively that the President is not the sole repository of Executive power under the Constitution. It is the Cabinet of Ministers collectively and not the President alone, which is charged with the direction and control of Government".


Based on this determination, President Sirisena along with the Cabinet of Ministers is collectively responsible for Executive action. Such collective action works only when the Head of the Executive is in a position to freely select his preferred choice of Cabinet Ministers so that they could jointly be responsible to Parliament. The natural tendency would then be for the Head of the Executive to select a Cabinet of Ministers from the same political party as himself. However, this is not the case at present due to a unique set of circumstances in which the President had pledged to appoint Mr. Ranil Wickramasinghe the Head of another political party as Prime Minister. This pledge has left President Sirisena with no choice but to work with a Cabinet of Ministers selected by a Prime Minister who belongs to a political party different to that of his own. The primary reason for this state of affairs is due to a misreading of how Separation of Powers is supposed to work.


SEPARATION of POWERS


Influenced by the thinking of early political philosophers that separation of the powers of the Government would best serve the interest of the People, the Presidential system in Sri Lanka is based on separation of powers. In practice this means that the sovereign powers of the People in respect of Legislative, Executive and Judicial are exercised by three separate organs of government namely, the Legislature, the Executive and the Judiciary. The other is a Parliamentary system of Government. In the Sri Lankan context the President is directly elected by the People, while the Legislature, i.e., the Parliament is a collective body elected individually as members of Parliament by the People.


In the above context, President Sirisena is the Head of the Executive and as the Head of the Cabinet of Ministers is responsible for the executive actions of the Government. The manner in which separation of power is supposed to work is that the President invariably selects his Cabinet of Ministers from the same political party/coalition for reasons of ability to work together to advance the political ideology of the party/coalition. In the meantime if the majority in the Parliament is from the same political party as the President a member who could command the confidence of Parliament would be appointed the Prime Minister, and another appointed Leader of the House. The Prime Minister could function as one of the members of the Cabinet or any other capacity delegated by the President. This was the set up under the last administration.


If on the other hand, the majority in Parliament is from the UNP and the President is from the SLFP it would be natural for his Cabinet to be predominantly from the SLFP while the Leader of the UNP should functionally be the Leader of the House because without the opportunity to exercise Executive functions the designation of "Prime Minister" would be a misnomer. This is how the Legislature and the Executive is supposed to function under separation of powers.


CURRENT ARRANGEMENTS


It is claimed that the current arrangement is because of a pledge made by President Sirisena prior to the January 8th election. If that is the case, the current arrangement, however skewed, is with the consent of the President meaning the Prime Minister and his Cabinet of Ministers is acting as "a delegate of the President" if it is to comply with the Supreme Court judgment . On the other hand, if current arrangements are the product of either internal or external pressure and Executive power is not willingly "delegated" to a Prime Minister and a Cabinet predominantly from the UNP, it would amount to a violation of the Supreme Court judgment. Under normal circumstances, since President Sirisena would be free to select his Cabinet of Ministers it would be natural for the President to make his selection from the UPFA – clearly not from the UNP which in fact is a minority party in Parliament. The fact that the majority of the Cabinet is from the UNP means that current arrangements are "unnatural" perhaps due to a misreading of how separation of powers are supposed to work.


The same misreading occurred when the UNP won the Parliamentary election in 2001 during President Chandrika Bandaranaike’s presidency. Following this election, Mr. Ranil Wickramasinghe became the Prime Minister, and with a Cabinet of Ministers of his choice carried out Executive action with the President continuing to remain the constitutional Head of the Executive and of the Government and the constitutional Head of the Cabinet. This was a carryover of the Parliamentary system where the leader with majority in Parliament became the Prime Minister and with a Cabinet of Ministers of his/her choice carried out Executive functions. What should have happened instead is that the President should have selected her Cabinet from within Parliament and carried out Executive functions for which she was constitutionally empowered. Such serious anomalies occur when concepts of separation of power are juxtaposed with Parliamentary systems without a clear understanding as to how each system operates.


CONCLUSION


The current arrangement where a minority political party – the UNP - is exercising Executive power with a SLFP Executive President despite a SLFP majority in Parliament is an anomaly brought about by a misreading of how separation of powers are supposed to work. Furthermore, current arrangements would also be in violation of the Supreme Court judgment if the UNP Prime Minister and his Cabinet, majority of who are from the UNP, do not have the unfettered consent of the President to function as "delegates" of the Executive President. Under the circumstances, the SLFP with its current majority in Parliament could legitimately demand greater representation in the Cabinet if any doubts are to be dispelled that the Cabinet under the UNP Prime Minister are "delegates" of the Executive President.


The public is not buying the notion that the present UNP Prime Minister and Cabinet are acting as "delegates" in consort with the Executive President. It is only tangible manifestations in the form of greater proportion of SLFP/coalition in the Cabinet that would restore to some degree the credibility of current arrangements.


 
 
 
 
 
 
 
 
 
 
animated gif
Processing Request
Please Wait...