Amendment 21A: President and Cabinet Responsible to Parliament

by Neville Ladduwahetty

During the course of a special televised statement, Prime Minister Ranil Wickremesinghe is reported to have stated among other Amendments to 21A, an Amendment to make the President and the Cabinet of Ministers responsible/answerable to Parliament. Since other Amendments proposed are limited to reorganising one organ of government, the Parliament, what is addressed herein involves the relationship of two separately elected organs of government to which the Peoples of Sri Lanka assigned their sacred sovereignty, namely the Executive and the Legislature.

While Amendments or reforms relating to one organ of government such as the Parliament could be undertaken without seeking the opinion of the People, the question is whether powers Constitutionally assigned could be withdrawn from one organ and transferred to another without seeking the opinion of the People. Furthermore, since the intended 22A is supposed to abolish the Executive Presidency, the conclusion the public could rationally arrive at is that the Amendment proposed by the Prime Minister to make the President and the Cabinet responsible/answerable to Parliament, could be achieved without seeking the opinion of the People through a referendum.

OPINION of the SUPREME COURT

The unanimous judgment given by a panel of seven Supreme Court judges becomes aptly relevant. They stated in SC FR 351 – 3612/2018: “the first rule when interpreting Constitutions is that words in a statute must be given their ordinary meaning”. Based on this rule, while Article 3 states: “Sovereignty includes powers of government…”, Articles 4 (a) and 4 (b) state the specific powers of government assigned by the People to the Legislature and the Executive.

Article 4 (a) states: “the legislative power of the People shall be exercised by Parliament consisting of elected representatives of the People and by the People by a Referendum”. AND Article 4 (b) states: “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”.

It is in this background that the Determination of the Supreme Court in S.D. No. 04/2015 should be revisited in the event the President is to be responsible to Parliament. The Court stated: “In fact, Mr. Sumanthiran contended that Article 42 is identical to corresponding provision in the 1st Republican Constitution of 1972, which stated in Article 91 that “the President shall be responsible to the National State Assembly for the due execution and performance of the powers and functions of his office under the Constitution…. Thus, the position of the President vis-a-vis the legislature, in which the president is responsible to the legislature was left untouched by the 1978 Constitution.”

What is of serious concern is how Article 91 of the 1972 Constitution came to be incorporated “untouched” in the 1978 Constitution when the political systems under which the two Constitutions operated were as different as chalk and cheese. For instance, the 1972 Constitution specifically states in Article 4: “The sovereignty of the People is exercised through a National State Assembly… Article 5 states: “The National State Assembly is the supreme instrument of State power of the Republic. The National State Assembly exercises – (a) the legislative power of the People (b) the executive power of the People (c) the judicial power of the People”. Thus, the 1972 Constitution caters to a system that is based on a single “supreme instrument of State power. On the other hand, the 1978 Constitution caters to a system where the where powers of government are separated between the “Legislative power of the people” and the “Executive power of the people”. Under such circumstances, it is beyond comprehension how provisions applicable to the arrangement that recognizes a single authority of State power could possibly be also applicable to a system of government where the sovereign People gave a mandate to divide their sovereignty between separate organs of State power.

How such a provision where the sovereignty of the People is exercised by a single all – encompassing entity, the National State Assembly, in which the President elected by Parliament is responsible to the legislature REMAINS “untouched in the 1978 Constitution” in which the sovereignty of the People is exercised by a separately elected President and a separately elected Parliament as separate organs of government is a judicial conundrum. What is tragic is that this seriously flawed notion has persisted without question since 1978 and would continue if a bold initiative is not taken by the legal fraternity to correct this legislative misadventure.

If the first rule of interpretation is to go by the ordinary meaning and Article 42 remains, there is a strong possibility, however flawed, that the President and the Cabinet would become responsible/answerable to Parliament. This would mean that the Amendments proposed by the Prime Minister in 21A would be subject only to a 2/3 majority. The need for a referendum would not arise either on spurious grounds that Article 4 is not an entrenched Article even though Courts have repeatedly state that Article 4 should be read with Article 3, or on blindly accepting existing constitutional provisions without questioning fundamentals.

It is only if Courts indulge in the luxury of exploring fundamentals that they would realise that the inclusion of Article 42 in the 1978 Constitution is misplaced. This means that under provisions of the 1978 Constitution, the President cannot be responsible to Parliament. The only way the President is required to be responsible to Parliament is by seeking the consent of the Peoples through a Referendum.

JUDGEMENT RELATING to the CABINET

Another issue of concern relates to the Cabinet. The judgement in S.D. No. 04/2015 states: “The People in whom sovereignty is reposed have made the President as the Head of the Executive in terms of Article 30 of the Constitution entrusted in the President, the exercise of Executive power being the custodian of such power. If the People have vested such power on the President, it must either be exercised by the President directly or someone who derives authority from the President. There is no doubt that Executive power can be distributed to others via President. However, if there is no link between the President and the person exercising Executive power, it may amount to a violation of mandate given by the people to the President”.

Continuing the judgment states: “Though Article 4 provides the form and manner of exercise of the sovereignty of the People, the ultimate act or decision of his executive functions must be retained by the President. So long as the President remains the Head of the Executive, the exercise of his powers remain supreme or sovereign in the executive field and others to whom such power is given must derive the authority from the President or exercise Executive power vested in the President as a delegate of the President”.

Therefore, the conclusions that could be drawn from the judgment is that the Executive power of the President is independent of Parliament, and since the Cabinet derives its authority from the President, the Cabinet too must necessarily be independent of Parliament. Consequently, any attempt to alter this relationship between the President/Cabinet and Parliament must necessarily require an endorsement from by the people through a Referendum.

CONCLUSION

The conclusion that could justifiably be reached from the material presented above is that an Amendment that attempts to make the President to whom the people have unequivocally assigned part of their sovereignty to exercise their Executive power, responsible to Parliament to whom the People have assigned a separate part of their sovereignty, cannot be made without first seeking the consent of the people through a Referendum. Furthermore, since the Cabinet derives its authority from the President, the constraint that is applicable to the President is equally applicable to the Cabinet.

If the intent is to prevent an individual such as a President from exercising unfettered Executive power, Parliament could legislate broad benchmarks and guidelines for the Executive to abide by, and for Parliamentary Oversight Committees to monitor and report to Parliament. Such an arrangement would be in keeping with the core principles of the present Constitution.

The focus at this moment of desperation should not be to engage in a contest as to which branch has more power, but together focus on restoring the economy for the sake of the People. The notion that these Amendments are undertaken in response to the boisterous voice of some is a misplaced distraction because the concern of the silent majority is for essentials of livelihood that is not getting the attention it deserves. Therefore, the need of the moment is for both branches of government to work together without competing as to who has more power.

A suggestion that would have a significant impact on the overwhelming majority is availability of petroleum products. Therefore, instead of depending on credit lines, the government should take a bold initiative and consider negotiating with Russia to set up a refinery in Trinco of sufficient capacity to furnish local needs and export any excess. In the interim, Sri Lanka should negotiate with China to secure excess petroleum products in their possession due to devaluation of the yuan and the slow down of their economy due to COVID-19. Such interim arrangements should not be a concern for India, because LIOC already has 35% of Sri Lanka’s market share. Engaging with India, Russia and China to resolve Sri Lanka’s desperate energy needs would be in keeping with its Neutral Foreign Policy. It is only such bold initiatives that will prevent Sri Lanka from experiencing instability of a nature hitherto unknown.