Are we heading for constitutional anarchy

By Harsha Gunasena

There is much discussion about the Constitution of Sri Lanka and about the present constitutional crisis the country is facing. It is the popular belief that the President of the Republic has so much of power derived from the constitution. It is pertinent to examine the powers of the President against the powers of Parliament according to the Constitution. This is tested now since two political parties are dominating the two institutions.

Article 4(a) states that the legislative power of the people shall be exercised by Parliament and by the people at a referendum.

Article 4(b) states that the executive power of the people including defense of Sri Lanka shall be exercised by the President. Similar words are there in the  constitution of 1972  whereas the President, who was not elected by the people, exercised such power as a representative of the National State Assembly. The constitution of France, which is much similar to ours and much clearer than ours, does not mention the executive power of the President whereas the constitution of the US clearly states so. 

According to Article 43(3), the President shall appoint as Prime Minister the Member of Parliament who in his opinion is most likely to command the confidence of Parliament.

According to Article 44(1) the President shall in consultation with the Prime Minister, where he considers such consultation to be necessary, appoint the ministers among the Members of Parliament. According to Article 44 (2) and 44(3), the President can assign ministries to himself and change the ministers and ministries. According to Article 47 he can remove the Prime Minister or any Minister from the office. According to the constitution of France, the President appoints and terminates the appointments of the Ministers on the proposal of the Prime Minister.

A Bill passed by Parliament shall become law when the certificate of the Speaker endorsed thereon subject to certain provisions if there is a referendum. (Article 80(1)) According to Article 148, Parliament shall have full control of Public Finance. According to the constitutions of France and the US, the President can refer back a Bill passed by the legislature for reconsideration. It shall not be refused according to the constitution of France (Article 10) and it should be passed by majority of two third, according to the constitution of the US (Article 1 Section 7). 

According to Article 43(1) and 43(2), the President shall be a member and the head of the Cabinet of Ministers and the Cabinet of Ministers, charged with the direction and control of the Government, shall be collectively responsible and answerable to Parliament.

Article 42 states that the President shall be responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the constitution and any written law, including the law for the time being relating to public security. This apparently borrowed from Article 91 of the Constitution of 1972, where the President was a figurehead. There are no provisions of this type in the constitutions of France and the US. This aspect is further emphasized in Article 38 1 (b) whereas the resignation of the President in writing under his hand should be addressed to the Speaker.

According to Article 70, the President may, from time to time, by Proclamation summon, prorogue and dissolve Parliament, subject to certain provisions.

Based on the above, taking into consideration the practical aspects as well, in the present scenario where the majority power of Parliament is held by a party other than the party of the President, it is evident that the President can not solely decide on the ministries and the ministers with out consulting the Prime Minister, although the President is empowered by the constitution to do so, since Parliament can bring no confidence motions against such ministers and force them out. Therefore it is necessary that President should consult the Prime Minister as provided in Article 44(1) of the constitution. 

When the President takes over a ministry with out the concurrence of the Prime Minister, the functions of such ministry can be at a standstill, since all fiscal and legislative powers are solely vested with Parliament. Moreover since the cabinet of ministers including the President is collectively responsible to Parliament, the President has to implement the Government policies in day to day running of such ministry, not his own policies. Cabinet decisions are based on the decision of the majority. Just because the President is the head of the Cabinet of Ministers and the Head of the Government, he cannot impose his will on the Cabinet.

The main weapon the President can use is to dissolve Parliament after one year of the date of the General Election. If the majority of the Parliament is unpopular among the people the President can use this in his favour, but otherwise it is sure way of becoming the President unpopular.

In respect of much debated Defense Portfolio, the constitution states that the executive power of the people including defense of Sri Lanka shall be exercised by the President.  Special reference was given to defense, but one cannot argue that according to the constitution the President should hold the defense portfolio. If that argument is true one can also argue that according to the constitution the President should hold all the portfolios, since the emphasis is, that the  executive power of the people shall be exercised by the President.

The constitution states that the President has the power to declare war.(Article 33(e)) Once again this Article was apparently borrowed from Article 21(a) of the constitution of 1972. Constitutions of France (Article 35) and the US (Article1 Section 8) have not given this power to their Presidents, it is with the legislature. According to our constitution how can the President fight a war if Parliament does not release the necessary funds? Therefore the President has to declare war with the approval of the Government and thereby with the approval of the Parliament, I presume, as stated in Article 42.

In the constitution, certain Articles are checked by other Articles. Therefore one cannot give a piecemeal interpretation to the constitution. Constitution should be interpreted in toto. Based on the above discussion, I suggest that Parliament is supreme, not the President, since Parliament enjoys not only the sole legislative power and the fiscal power but also a large extent of executive power through the Government. According to Article 80 (1) when the Speaker certifies, a Bill will become Law. According Article 42, President is responsible to Parliament. These two provisions are the reverse of the provisions of the constitutions of France and the US and somewhat similar to the constitution of 1972. Therefore the person who commands the confidence of the majority of the Members of Parliament is not just a peon as suggested by some. This notion came in to light when the President and the Prime Minister are from the same party where the party leader is the President. In Sri Lanka there is no internal democracy within the political parties. Moreover according to the constitution, if a Member is removed from the party, it is considered that his seat is vacated subject to certain provisions. In this scenario the Prime Minister is forced to act as a peon but not otherwise. If it is we are heading for constitutional anarchy.  

(Published in The Island January 2004)