A Comparison between the Executive Powers of the President of Sri Lanka and the President of the United StatesJune 16, 2012, 4:40 pm
As a prospective law student, currently studying political science at the University of Maryland Baltimore County USA, I, Kimberly Browning, have become profoundly interested in the executive powers welded into the written constitution of Sri Lanka and the United States. I have conducted a comparative analysis to distinguish the similarities and differences between the powers of the United States President and Sri Lanka's President. Under the supervision of Mr. Godfrey Cooray Senior Attorney at Law and his team comprising of Mr. Ruwantha Cooray Barrister-at-Law, Ms. Menaka Cooray, Mr. Roy Fernando, and Mr. Manesh Wevita Attorneys at Law, an array of academic sources have been available to enhance my knowledge on the executive powers of the President of Sri Lanka. While extensively studying each constitution, it became apparent that before analyzing the executive powers of the two countries, there must be a general understanding of the overall system of governance in Sri Lanka and the United States.
The main feature between the United States and Sri Lanka is the presence of a codified (written) constitution. Whereas the United States constitution was formulated in 1787, Sri Lanka did not become independent from Britain until 1948. The first republican constitution post-independence was promulgated in 1972. The second republican constitution promulgated in 1978 provided for a unicameral parliament and an executive president. To date, the 1978 constitution has been formally amended eighteen times.
Within each constitution, the separation of powers between the Executive, Legislative, and Judicial branches of government has laid out the functions of the President. When reading each constitution, it is apparent that the system of governance in Sri Lanka and the United States differ. Whilst both governments have a president at the helm of power, Sri Lanka is a semi- parliamentary system while the United States is a presidential system of government. Within a semi-parliamentary system, the President and Prime Minster are both active in administrating the state. However, the powers divided between the President and Prime Minister differs between countries. Whereas Sri Lanka has President and Prime Minister, the United States is composed of a President and Vice President. Within a presidential system, the President serves as the head of the state. These differences in power are thus the backdrop to analyzing the powers of President Rajapaska and President Obama.
POWERS OF THE PRESIDENT
OF SRI LANKA
As laid out in Article 30 of the 1978 constitution, "There shall be a President of the Republic of Sri Lanka, who is the Head of the State, the Head of the Executive and of the Government, and the Commander-in-Chief of the Armed Forces."
When speaking of the executive functions within Sri Lanka's government, it is important to understand some aspects of the 18th Amendment.
Article 31(2) has been repealed which read, "No person who has been twice elected to office of President by the People shall be qualified thereafter to be elected to such office by the People." Therefore, the Amendment has allowed for a continued repetition of leadership from one President lasting longer than two terms. Furthermore, the 18th Amendment replaced the Constitutional Council with the Parliamentary Council, which the President shall only seek observations from when making appointments. The sole authority of appointing members of the independent committees is given to the President. The amendment also lays out in Article 32(3) that "the president shall by virtue of his office attend Parliament once in every three months" while also having the right to address and send messages to Parliament.
Outside of the 18th amendment, the president has the responsibility of appointing the Prime Minister. In consultation with the Prime Minister, the President holds the ability to determine the number of persons within the Cabinet of Ministers along with their assignments and functions. Article 44 (2) further states that the President "may assign himself any subject or function and shall remain in charge of any subject of function not assigned to any Minister." The President's power further extends to allow him at any time to change the subjects and functions of the Cabinet of Ministers. When reading the constitution of Sri Lanka, the President also has numerous powers in appointing officials, such as all public officials required by the Constitution. The 18th amendment further enabled President Rajapaska to appoint key officials to judiciary, the electoral commission, the police, and the central bank.
The President's power to pardon is also explained more in depth within the constitution of Sri Lanka. As listed in Chapter VII.34. 2(a), the President "may grant a pardon, either free of subject to lawful conditions," or (b) "reduce the period of such disqualification." The President may further grant a pardon to any partner in crime who shall give information that could lead to the conviction of any principal offenders, if more than one. Recently, President Rajapaska has used this power to pardon former Army Commander, Sarath Fonseka.
Another subject worth comparing to the United States president deals with the president's power to declare war. In Article 33, the President is given sole authority to declare war and peace.
While these powers are not the only executive powers of the President within the written constitution, they provide a basis to comparing the rights of the President of the United States.
POWERS OF THE PRESIDENT
OF THE UNITED STATES
Similar to Sri Lanka, the President of the United States serves as the Chief of State, Chief Executive, and Commander-in-Chief.
As Chief of State, the President stands as the symbolic leader of the country while as the Chief Executive, the President essentially runs the government. Under his leadership, he is to make sure laws are being enforced, appoint officials, grant pardons, and make Executive orders, while also overseeing the efforts of several departments and agencies.
When comparing the two governments, the major difference is the term limits of the President. Listed in Article 2, Section 1 of the U.S Constitution, the President should hold his office during a term of four years, with the Vice President. No president can serve longer than two terms.
Furthermore, another distinction between the two written constitutions is the right to veto legislation. Within Article 1, Section 7 of the United States constitution, "Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States." The President thus has the ability to veto any bill he feels unfit; however, the veto can be overridden by two-thirds vote of House of Representatives and Senate.
Just as the President of Sri Lanka has the right to address and send messages to Parliament, the United States President "shall from time to time give to the Congress Information of the State of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient." as listed in Article 2, Section 3 of the U.S constitution.
Strictly within the U.S constitution (Article 1, Section 8), Congress has the power to declare war, instead of the President. However, today the President has had unilateral authority in going to war abroad, similarly to that of the powers written into Sri Lanka's constitution. In 2011, President Obama's unilateral decision to launch missile strikes against Libya without Congressional approval questioned the constitutionality of the strike.
The War Powers Act of 1973 was enacted to improve the accountability on the Executive Branch to "insure that the collective judgement of both the Congress and President will apply to the introduction of the United States Armed Forces into hostilities." Nevertheless, the effort of the statute is limited because it recognized the power of the president to unilaterally deploy military forces when necessary.
In dealing with the ability to appoint officers, the "advice and consent" provision of the Appointment Clause in Section 2 of Article 2 of the United States constitution states that the President may not make certain high-level appointments to positions in the federal government without the advice and consent of the Senate. In addition to the Appointment Clause, another "advice and consent" provision, called the Treaty Clause, requires the approval of two-thirds of the Senate to ratify any treaty with a foreign power that have been previously approved and signed by the President. Without Senate approval, a treaty may not become law. The Appointment Clause however does allow for lower-level officials to be appointed by the president without the advice and consent process.
Lastly, the power to pardon has expanded since the writing of the U.S Constitution. Today, the President has the power to overturn a criminal conviction, known as a full pardon. Thus, the power to pardon, enumerated in Article 2, Section 2 of the Constitution, nearly goes unchecked by any other branch of government.
Controversy has risen over the powers of the executive branch in both, the United States and Sri Lanka. Within the 18th amendment of Sri Lanka's constitution, there is some speculation that the removal of a two term limit could lead to an authoritarian form of government on the basis that one incumbent will continue to be re-elected and exhaust his power in government.
President Rajapaska's attendance in Parliament is thought to further increase his power by enabling him to interfere with the elected representatives within the legislative branch, thus undermining the separation of powers. It is lastly assumed that the Parliamentary council holds less strength than that of the Constitutional Council and allows for the President to ignore the observation of the Parliamentary Council.
Despite controversy over the departure of an equally powerful and functioning parliament in Sri Lanka, we see that making political space for equal representation from all branches is a challenge for democracies across the globe, even within the United States.
The reason for a growing presidential power in the United States could possibly be due to the lack of specific functions in the constitutional context. While Article 2 lays out the executive powers vested in the United States President, much is written in imprecise terms. Furthermore, throughout the years the President has been consistently given significant powers that are implied and inherited, such as the ability to act without Congress in times of national emergency or to keep advice from subordinates confidential. These powers are not listed in the written constitution. Perhaps then the controversy does not lie within the amount of powers given to the President of the two countries, but on how the power will be used for the future of democracy.
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