REFORM
FOR DEDUCTION OF EXCLUSIVE PRESIDENTIAL POWERS
THE
CASE OF SRI LANKA
Written
by Dr. D. Tennakoon.
SUMMARY
This is a
warning of democracy of future under present
executive system of one man role, unless we change the executive Presidential
system devolving powers to a parliamentary representative council to act as
Advisory Council to the President.
Tomorrow, a powerful and wit-full candidate can assign as the President,
but the inherent weakness and risk in the existing Constitution will not end,
depending on one person for all. The
proposed 20th amendment should be meaningful: Establishing Executive
Advisory Council to advice President, President to be a member of the Executive
Advisory Council but President should not be a member of the Cabinet, The
President to act as Head of the Executive Advisory Council, Giving power to
Prime Minister to act as Head of the Cabinet, Power of Parliament to nominate a
MP to be appointed as the Prime Minister, power of Parliament to pass
resolution on no-confidence or impeachment upon the President, or on the Prime
Minister or any member of the Cabinet and other ministers.
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| Dr. Dharmadasa Tennakoon |
The fact that one person’s decision making
authority, in a democratic government, with
personal outstanding human errors can be misused and misguided by international
or local intervention. Balance of power
between President and Parliament..;..?. Contrast to the
developing political will of the people, dominating executive President’s
desire, opinion and will in the executive government will make much confusion
in future with decelerating politics.
By 19th amendment, no
enough changes have been brought in to the Constitution to devolve Presidential
power to a higher level executive body, but it has brought few important
changes, such as:
1. Establishment
of Constitutional Council and other Commissions, and their powers,
2. Under
Article: 43[2], appointment of the Cabinet Ministers on the advice of the Prime
Minister,
3. Under
Article: 44[1], appointment of Non Cabinet Ministers on the advice of the Prime
Minister,
4. Under
Article: 45[1], appointment of Deputy Ministers on the advice of the Prime
Minister,
5. Under
Article 46[2], After appointment of a Prime Minister just after the general
Election, the President has no powers to change [reappoint another MP as Prime
Minister] the Prime Minister,
6. Under
Article 46[3], President has no power to change Ministers without advice of the
Prime Minister, and
7. Adding
new provisions under two new Chapters, i.e., Chapter XIX [A], and Chapter XIX
[B]. Except these changes, there are no
valid changes brought to devolve power, and to limit the number of ministerial
subjects which are to be handled by the President.
-------------------------
The most unwise
thing introduced by the 19th amendment is amending of provisions for
reducing duration period of the Presidency office and the Parliament to five
years. Reduction of the term of the
President’s office to five years cannot accept as s scarification of
Presidential powers. According to the
Article:83 [a] and 83[b] of the Constitution of 1978, there is no provisions to
change/amend Article: 30 [2] on duration of term of office of President and
Article:62 [2] on duration of term of Parliament, without approval of Referendum. If Supreme Court find the truth of this
issue situation can be changed. If any
change make altering sentences of these Articles: [30[2] and 62 [2] need to be
approved by a Referendum.
PREFACE
Whatever the political party would
come in to power in 2020 Presidential Election,
the present Constitution has to be amended to produce a most meaningful
and trustworthy Constitution to avoid politically deleterious effects that
would come to contravene in the political future. In Presidential Election in 2020, a powerful person, fresh minded [fairly mind] and with wit-full talent may be selected by
the people for Presidency, but it is not the theme of present research paper
which persuading for change.
Do not think that the same government
would come in to power at the next time, but think to do what it needs to do
today. We have ravages of time in
physical, economic and political retarding our progress amongst the poor
nations. I will give a humbly clue/hint
that SLFP alone will not come to power again.
Existing grudge between UNP Executive Committee members is very unhappy. Aloysias/Perpetual Treasuries has seriously
damaged image of UNP that alone cannot come to power. But, if Sajith Premadasa contests in next Presidential
Election, there may be a big competition,
most probably will win, because people need fresh wit-full
mind to Presidency. If Sujith will win
the Presidential election, MPs of other main parties will join to him. If other candidate of the new rising party
will win the MPs of two main parties will join to him. This is the nature. However, the next President whoever comes to
power, under present Constitution will be keen, will control unnecessary
freedom of speech and trade union undermined campaigns, which are probably led
by defeated political parties. But that procedure will antagonize the people
and civil organizations. The political
parties should get competitive with peoples donation and participation.
The politicians can accept donation
or persons can donate to politicians for their political career, education,
campaigns and to spend at elections, and such acceptance or donating is not a
criminal by law.
I have research findings that many
company holders have given funds to both major parties as donation to satisfy
their campaign needs regardless whatever the party that would come to power. If one argues such acceptance or donating is
criminal, he might be a rioter/rebeler against to democratic freedom. Our Constitution should be able to secure
rights from rioters.
The 20th Amendment
to the constitution should not be furtive document, at the movement, it should
be demonstrated before media for the use of public. This amendment should not be lacked of
gumption, and simple disarrayed document like 19th Amendment. The Presidential system should not be
eradicated, but the executive power has to be implemented in foremost
democratic way, with the guidance and advice of the “Executive Advisory
Council”, which is consisted with ministerial representation. This system is lined up with the concept of
Parliamentary Executive government system.
If we are unable to identify the needs of today at this movement, the
political strength of the government could be deteriorated since 2020. This is a genuine warning. WE
HAVE TO THINK DEEP BEFORE 2020 ELECTION. THIS IS A WARNING TO RE-THINK. we Should think, UNLESS WE WILL face with
crisis in democracy. now we have come to
a threshhold of an era to look over and over the world.
We should have a Constitution and law
without many vague and broad/spread meanings, but with clearly defined, focused
and well expressed provisions. The Constitution should be consistent with
realities of the democracy, the systems of “tenure of sovereignty of people”. Dominating
executive President’s desire, opinion and will in the executive government will
make much confusion in future with decelerating politics.
1. PREAMBLE
AND GENERAL OVERVIEW
Executive
power is defined as “all executive powers except legislative and judicial
powers”. The executive power is
generally meant as “Governing power with executing laws in administration the
State”. The executives can call for
executive sessions, which mean the holding of private meetings of the governing
body of the State and, in executive sessions it provides room to work out
procedures rules and regulations under the guiding issues of law. There is no possibility to handle this
approach without releasing the executive powers of the executive Presidential
system.
In
conventional devolution of State powers among three sectors, i.e., Legislature,
Executive and judicial sectors, it has made delimitation of the powers among
such sectors. The legislative power is
defined as “power of making and building of law of the State in relation to
national defense, democracy and government, secure rights of the citizens and
security of the public, secure social order and integrity, resources and wealth
management, private earnings and consumption, and any other things in the
international relations”. The
legislative power is exercised by the peoples’ representatives, the
Parliament. The Constitutional law and
other law delimit the powers and functions of the executives of the
government. The Parliament has power and
fair right to assume task to increase efficiency and actability of the
executives of the government. On the
other hand, the Legislature and the Executives have fair right to review the
judiciary and judicial procedures and efficiency. The Parliament should have powers to
overrule the decisions taken by courts of law regarding the human rights as
elaborated in the Constitution subject to the provisions given there in, if the
opinion of parliament is that such decision is incompatible to the law. The judicial power is defined as “the power
of execution of law through the courts of law by judicial authoritative
officials”. The judicial power has to be
executed independently without subject to external intervention and force,
under the authority of law, which is called as “independence of the
justice”. The Legislature has powers to
apply procedures in revision judicature and state administration, and reforming
law intensively applicable to the executive government. The justice and judicial procedures have to
assure the people, and convince the people that they have performed perfectly
and independently under the authority of the law. In this context, the people and the people’s organizations,
and media can step up to debate on such matters with fair understandings of the
captioned legal actions.
On one hand,
the Presidency and the executives could procure information, facts, concepts
and opinions from the public and could analyze them for betterment of the
administration. On the other hand, the
people and the people’s organizations could submit reports and guideline papers
to the higher executives. But, in Sri
Lanka we have no proper mechanism established to receive such information and
concepts, and to analyze them for use.
The Chapter
III on “Fundamental Rights”, and Chapter VI on “State Policy, Principals, and
Fundamental Obligations” of the Constitution has given guidelines to
formulate State Policy, Government
Policy, Economic Policy, Social Policy, but it needs to further develop the
concepts of these chapters, it will make helpful to Cabinet in formulation of
policies. In the present context, the higher executives, the Cabinet of Ministers,
have power to design and implement policies in national economic development,
and sector policies such as: 1. Agriculture/Animal Husbandry, 2.Industry, 3.
International Trade, 4. International Economic Cooperation, 5. Basic Social
Needs, and 6. Social Policy, in papers or policy documentary files, under the
provisions given in Chapters III and VI in the Constitution of 1978. It does not need to argue that the papers to
submit to the Parliament, as these policy papers do need approval of the
Parliament.
Notion of reducing of the executive powers of
the elected President is a long existing demand of the people. For this purpose, it is not an essential
need to replace the post of elected President with the office of appointed
President. We can achieve this notion
with carefully planned and designed preponderant amendments to the existing
Constitution. The amendments need to
assure and upgrade the state of the Parliament and the Cabinet, empowering the
people’s sovereignty and democracy. It
needs to plan for diverting and decentralization of executive Presidential
power at the higher level political body of the executive, which is directly
responsible to the Parliament.
First, it needs to amend Article:4
[b], and to be replaced with “The executive power of the people shall be
exercised by the Parliament through The President, the Executive Advisory
Council, and the Cabinet of Ministers”.
There need amendments to Chapter III and VI to further develop the
contents in those chapters regarding the policies in economic development,
international relations, and foreign investments. It need to amend the power of
the Parliament as to that the Parliament should have powers to overrule the
decisions taken by courts of law regarding the human rights as elaborated in
the Constitution subject to the provisions given there in, if the opinion of
parliament is that such decision is incompatible to the law. Other hand, the government should go before the court
secure public rights, not waiting until people go before court. These are issues that we have to think and
put in to in law development concepts.
The
Constitution should be the foremost powerful tool of the State and of the
government, unless the political, social and economic progress and benefits will
be decelerated with weakened reign of the democracy. The Sovereignty of the people, i.e.,
legislative, executive and judiciary powers should be exercised by Parliament
respectively through Parliament itself, the President and the Cabinet, and the
judicial courts and the institutions.
1.1
GENERAL ISSUES IN POLITICS AND
DEMOCRACY.
A
government is elected by the people by their votes, but the voters and the
representatives of the opposition are eventually the neutral part of the
government. In the competitive economic, political and social orders, this
opposition part of the State/government should not be partners of the
beneficiaries of the international movements, as many developing nations have
become victims of such international movements.
This realm is not been seen in dictatorship governments, but widely seen
in democratic poor nations/governments. A
Government is elected by the people, on the basis of that the 60 percent of the
voters have voted for the appointed Government, while 40 percent have voted to
representatives in the opposition.
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At
least a half of that 40 per cent are or can be led by some hindered movements,
civil organizations or the foreign bound movements to weaken the policies,
plans and transfix the Government. In
that nature, that democracy will fail. The opposition politicians attempt to
demonstrate ridden their power over the government, and some attempt to use
Parliament as their threshold to demonstrate high voice to pretending before
people over television [cheap media to shout and misguide people] people that
they are clever. The Parliament should
not be a witless place, but the place to give wit of representatives
1.2 EMPOWERING
PARLIAMENT AGAINST POLITICAL SCAMS
Scams are
frauds, which take different types and facets, i.e., the ravages of time
focused on debasing some political groups with scares, raving violently and
angrily over media slanders to change peoples’ attitudes, propaganda for
fundamentalism alias falsely wroth of party politics, attempts for making people become violent, and so on.
The Theory of Political Scams has given intensive account on this realm.
1.3
AMENDMENTS TO CONSTITUTION NEEDED TO CONTROL SCAMS
The Theory
of Political Scams has given an account on the prevailing systems of
fraudulently prepared accusations, and trumpery media reports which seems to be
scams focused only on media publicity and misleading the peoples. These scams are formulated focusing
elections, and their party publicity, especially aiming and traducing at the
Prime Minister or a Cabinet Minister, or eminent leaders in other parties.
The scammers of this kind collect various scam
reports and voice cuts from different people using their talent in scam,
traduce and slander. The Parliament
should have given power by the Constitution to control scams. The Constitution should be amended to include
powers to the Parliament in such accusation to pass resolution by Parliament
to advice to the Supreme Court to conduct inquiry on the case with in given
time frame and submit the report to the Speaker. The parliament should take appropriate
decision based on the recommendations of the Supreme Court. In the course of attempts of scams and
formulation of such invalid evidence through irrelevant hands, the
Parliament should have power to pass resolution to declare that accused
politician is subject to free from the jurisdiction, until the inquiries are
completed at an adequate standard.
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The habits
of traducing, slandering and polluting and disgracing one’s character have now
been incorporated to culture and conditioned to day to day political life. More popularly the media is running behind
this to catch good meal. Traducing and
slandering is an offense of making false statements that damage a person’s
reputation and prestige character. It is an attempt to violate fundamental
rights and on the other hand, human rights.
The Speaker is not watchful of this like attempts as there is no
procedure for this, the Parliament become Hasty and Ghosts’ palace [Holman Walwwa]
to the people.
1.4
NORMS OF THE PEOPLES’ REPRESENTATIVES.
The
expressions in the Parliament should not be attempted to prevaricate the
policies by deceiving the people, and to provide deleterious impact on the
government and on the public. The
behaviors in the Parliament and of the Parliament should not lead to create and
encourage initial forms of the terrorism.
Attempts of the peoples’ representatives should not be contravened to
law pretending in the guise of freedom of speech, and to persuade public to
take contravene actions against to law.
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The
politicians need aptitude for refinement of their policy to fit with the timely
needs locally or internationally, solidarity and cohesiveness not withstanding
with their narrow party politics. The
people, the civil organizations and the learned community need to refit their
minds to create sensitive politicians, with common sense for initiative and
qualities likely to bring success to the nation. Our executives at the top level lack
gumption in competitive path to progress.
Politicians with rashly generated conceptions and strategies based on
party politics, in hasty impetuous, overbold and reckless temperament, and
acting or done without due consideration severely damage to the Sovereignty of
the people and it may be threat to the democracy.
2. THE PRESIDENTIAL SYSTEM
2.1 THE PRESIDENTIAL SYSTEM OF
GOVERNMENT- 1972 AND 1978 CONSTITUTIONS
The
Presidential System introduced to Sri Lanka in 1972 is a result of rehashing
and adaptation the previous British
introduced Executive Parliamentary system in Ceylon. The Queen then was the Head of the State, Head
of the Government, and The Commander-in-Chief of the Armed Forces in Ceylon: The
Queen reigned the State, but did not govern. Accordingly, The Queen appointed a Governor
General to exercise all powers, duties and functions of the Queen in Ceylon. In 1972, when we were seeking alternatives
for releasing from the British monarchy, and establishing Executive
parliamentary Government, it was the one alternative to look for Presidential
system, in which President reigns, but does not govern. [Reign= Hold the Office of the Head of the State,
Head of the Executive, and hold the position and power as “Commander-in-Chief
of the Armed Forces].
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On this
objective, constitutional assembly did not go for elected Presidential system,
other way they proposed a position of the President, who is appointed by the
Prime Minister, but the appointed President, according to the Constitution,
shall hold the office of the Head of the State, Head of the Executive, and the
Commander-in –Chief of the Armed Forces, and in-charge of the executive powers
of the Executive Government. But, does not Govern the kingdom, as the President
has to act on the advice of the Prime Minister[Article: 27[1] of the 1972
Constitution of Sri Lanka], which reads as:
“Article:27.[1] The President shall always except as otherwise provided
by the Constitution, act on the advice of the Prime Minister, or of such other
Minister to whom the Prime Minister may have given authority to advise the
president on any other particular function assigned to that minister”. In 1978 Constitution, the elected executive
President had powers to act without advice of the Cabinet of Ministers, as he
was not responsible to the Cabinet of
Ministers and to the Parliament on his powers vested by the Constitution.
The Constitution of Sri
Lanka 1972
CHAPTER VII
THE PRESIDENT OF THE REPUBLIC
Article: 19. There shall be a President of the Republic of
Sri Lanka who is the Head of the State.
Article:20. The President is the Head of the Executive and
the Commander-in-Chief of the armed forces.
Hon.
William Gopallawa was the first Sri
Lankan President who held the executive powers and held the position of the
Commander –in- Chief of the Armed Forces [1972-1977].
According to the Constitution of 1972, the appointed
President was the Head of the state, Head of the Executive and
Commander-in-Chief of the armed forces [see Chapter VII, Article 19, 20, 21,
22, 23 on the powers and functions of the President]. According to the Article 27 [1], the
president should act on the advice of the Prime Minister. If the President failed to act on the
advice of the Prime Minister, no one go before courts. Article 27[2] says, “No institution administering justice and
likewise no other institution, person or authority shall have the power or
jurisdiction to inquire in to ,pronounce upon or in any manner call in question any act or
omission on the part of the President on the ground that the provisions of
subsection [1] of this section have not
been complied with”. The only thing
in such occasion can do is to act according to the Article 26 [2], under the conditions of the office of
President of the Republic of Sri Lanka becomes vacant. According to this condition, the President
can be removed on the National State Assembly passing a resolution of no-confidence
against the President, proposed by the Prime Minister.
The second
Sri Lankan President who held the office of the Head of the State, Head of the
Executive, the Head of the Government, and the Commander-in-Chief of the armed
forces was Hon. J.R. Jayawardena [1978-1989].
According to the Constitution of 1978, the President was elected by
people, and executed all executive powers of the Government by himself, as the
Executive Presidential System was introduced, he did not need by authority to
get advice from the Prime Minister or from the Cabinet of Ministers, under the
provisions of the Constitution of 1978.
2.2 EMPOWERING
THE PARLIAMENT AND THE CABINET OF MINISTERS
AMENDMENTS
FOR POWERS OF PARLIAMENT
There is a
need to amend Article 4 [b] to perform the executive powers of the President in
and foremost democratic way. It should be
replaced with a clause “The executive power of the people should be exercised
by the President through the Executive Advisory Council and the Cabinet of
Ministers”. In this context, it is
needed to review and study the compatibility of following issues and objects in
amendments.
1.
There is an interdepending relationship
between the existing law and practicing of judicial powers. In the case of interpreting any matter in the
context of Constitutional law or existing law, the Parliament shall have power
interpret such matters passing a resolution in the Parliament, and passing that
resolution to the Supreme Court.
2.
The Parliament should exercise its powers
and privileges without making contravention to the provisions of the
Constitution, and to the existing criminal law.
3.
If the Cabinet of Ministers, in the its
opinion, thinks to empower existing law by replacing weak and uncertain clauses
of law with clear and meaningful clauses of law, the Cabinet of Ministers
should submit request to the Parliament, and with the consent of the Parliament
the Speaker should appoint an “Inquiry Panel of Law” to investigate and report
to the parliament. The Parliament may take necessary action based on the
recommendation of the report.
The
Constitution of 1978 has clearly provided that “There shall be a Cabinet of
Ministers charged with the direction control of the government of the Republic,
which shall be collectively responsible to the parliament on all matters for
which they are responsible”[Article 43 [1].
But, the executive President had powers to act on his own as he was not
responsible to the Cabinet of Ministers, AND LACK OF ALTERNATIVE PROVISIONS
FOR THE CABINET. In our new
amendments, the powers of the Cabinet of Ministers collectively or individually
should be clearly interposed in the Constitution. According to the 1978 Constitution, the
President has no powers to dictate to the decisions of the Cabinet of Ministers,
but he did because there were no alternative powers to Cabinet. Actually the President should not intervene in
to the Cabinet decisions, and express ideas before public conferences contrary
to the collective responsibility in the Cabinet. If it happens, it is a sign of the route
to crisis in democracy.
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The
position of the Prime Minister is most important in a democratic
government. There is a need to replace
the clause in Article 43 [2] enabling the Prime Minister to act as the Head of
the Cabinet of Ministers, and President to act as the Head of the newly
proposed “The Executive Advisory Council”, enabling to share the powers
between the President, the parliament and the Cabinet of Ministers. It should take to notice that the
responsibility, powers, privileges of the Cabinet of Ministers should be
clearly interposed in a Constitution.
2.3 OTHER
ISSUES NEED AMENDMENTS: STATUS OF THE
PRIME MINISTER
If people
think at this movement to go for another constitutional amendment, it will need
to deal about other issues, which need clarifications for change in other
forms, other than the issue of reducing of executive power of the
president. For example, amendments need
to:
1.
Change of the Chief Ministers involvement
in making orders of directive to the Deputy Inspector General of Police in
fulfillment of his duties in the Province,
2.
Clear explanation of the Speakers,
duties, obligations and functions in the Parliament. These amendments for power need in the
context of outrage and indignity expressions and behavior in the parliament,
and to assigning of valuable time of the Parliament to use that time and
opportunity to encourage and resume the timely worthy matters, which affect to
the national integration, rapid economic growth and social welfare. [as many members and leaders in the
Parliament waste their time devoting much time to upgrade their political
party, and to build their personal image].
3.
Powers and functions of the Prime
Minister should be clearly expressed. After a conclusion of a General Election,
the first day of parliamentary assembly Speaker is elected. As new proposals,
the parliament should nominate a name of a MP to be appointed as Prime
Minister. Prime Minister should be the
Head of the Cabinet. Article 43 should
be amended for:
a.
Prime Minister to be Head of the Cabinet,
b.
Prime Minister shall, with agreement of
the President, determine the number of ministries and Ministers, and assignment
of subjects and functions to Ministries.
c.
Prime Minister shall nominate MPs from
among the members of the Parliament to be appointed by the President as
Ministers, other Ministers and Deputy Ministers to be in - charged of the
Ministries as determined.
d.
Prime Minister may at any time recommend
to President to change the assignment of subjects and functions of Ministries
and change the Ministers.
4.
As given guidelines of issues above, clear
explanation and citation of the powers, duties and functions of the Prime
Minister should be included in an Article [Article:43] in the Constitution
taking following issues; For example:
a.
The Prime minister shall be the head of
the Cabinet of Ministers, shall review and monitor functions and performance of
Ministries, and lead the Ministers to achieve target of the Ministries,
b.
The Prime Minister shall have opportunity
to represent Sri Lanka at the international forums of economic cooperation, and
the Head of States on the advice of the Executive Advisory Council,
c.
The Prime Minister, except the new Prime
Minister appointed just after a general Election, shall determine with advice
of Executive Advisory Council the number of Cabinet Ministries, number of other
Ministries, and number of State Ministries and assignment of subjects and
functions to the Ministries and, nomination of the MPs in the Parliament to be
appointed as the Ministers and the deputy ministers.
d.
The Prime Minister shall have power to
make request to the Executive Advisory Council to reshuffle the Cabinet or to
reduce or increase the number of ministries, and to change assignment of
subjects and functions to the ministries.
e.
The
Prime Minister shall answer to the questions and queries raised by the Members
of the Parliament regarding the performance of the President.
Another issue is that, if we change
executive powers of the elected President, there should not be a Constitutional
rule for a winning presidential candidate at a presidential election to receive
more than 50 percent of the valid votes, AT A PRESIDENTIAL ELECTION. THAT RULE SHOULD BE REMOVED.
3. EXECUTIVE POWERS OF THE
PRESIDENTIAL SYSTEM
Executive powers and functions of the
elected President are clearly given in Constitution 1978. In new amendments following issues should
have to be taken in to notice.
a.
President may have power at any time to submit reports, guiding
suggestions, and advising reports to the Parliament, to the Executive Advisory
Council and to the Cabinet of Ministers, and
b. If President thinks he needs some
powers on special reasons, The President may request the Parliament by a
report, and Parliament may grant such powers for a specific time period, by an Act or
resolution proposal passed by the Parliament.
3.1 CHANGE IN EXECUTION OF
POWERS OF THE EXECUTIVE PRESIDENTIAL SYSTEM
“EXECUTIVE ADVISORY COUNCIL”
SYSTEM
Establishing an Executive
Advisory Council of Ministers, on one hand assure the Constitutional democratic
power and, on the other hand assure executive Parliamentary system. It balances the power between Parliament and
the Presidential government system.
This
Constitution [The Constitution of 1978] has been developed through 19
amendments up to date, and some executive Presidential powers have been vested
in Constitutional Council and in a range of stabilized Commissions, and some
powers have been vested with the Prime Minister. There is no end of the debate
on revisions for the Executive Presidential system. While One group of politicians claim for
replacing the elected Executive Presidential system to nominated and appointed
presidential system, the other group of politicians claim for continuing with
elected Executive Presidential system, but they suggest minor modifications through amendment to the
Constitution. My suggestion is that, at
his movement we have to think about wide coverage of possible amendments to
secure democratic and participatory system to be introduced to the elected
Presidential system. Creating of a Executive
Advisory Council to advice president in exercise and execution of the
presidential powers and duties, and responsibilities, amending the Constitution
can be a one solution. The President
shall be the Head of this council, and a member of the Council. The President shall act on the advice of the
Council. The President should handle and act on only one subject of the
ministerial subjects. The Prime Minister
should be the Head of the Cabinet of Ministers, and the President shall not be
a member of the Cabinet. For this we have to consider following amendments.
[1].
If we so worry about reducing of executive presidential powers, it is easy for
us to amend the Article: 4[ b] of the 1978 Constitution to read as: [-see the proposed amendment below:],
Proposal
to Amend Article:4[b] of the Constitution, 1978
Article:4[b]: Including the national
defense, people’s executive power shall
be executed by the President elected by the people, through Executive Advisory
Council and the Cabinet of Ministers [this Council is a proposed system under
the concepts and objectives of the present article].
[This Article of Constitution can be amended without Referendum].
[2]. Amend Article: 43 [2] for giving
power for the Prime Minister to act as the Head of the Cabinet of Ministers,
and to increase responsibility in the Cabinet.
[3]. Amend Article: 43 [3] to enable
the Parliament to nominate name of one MP in the Parliament to the President,
to be appointed as the Prime Minister by the President.
[4].TO ESTABLISH “ THE EXECUTIVE
ADVISORY COUNCIL”, there should be amendments to be included just below the
Article: 42 [1].
[5]. More importantly, the powers, duties, and functions of
the Prime Minister should be elaborated in the Article 43 in the Constitution.
All these amendments for reforms
focused to reduce presidential power under the lines of foremost participatory
democracy are to be worked out.
According to the on -going debates
and talks, it is better to think more about decentralization of executive
powers creating positions of 1. Vice
President,
and 2. Deputy Prime Minister. It is better to amend the Constitution for
the Parliament to nominate names of MPs for these two positions, and to the
President to appoint them. There is a
possibility for MP of Tamil Nationality to become Vice President, and MP from
other nationality to become Deputy Prime Minister.
The alternative idea to appoint Prime
Minister through nomination of a name of a MP in the Parliament by the
Parliament to be appointed as the Prime Minister is a valuable and timely
proposal. Needs to change Article: 43
[3].
Article: 43 [3]. The Parliament shall have power to nominate a
name of one MP in the Parliament to the President who shall be appointed as the
Prime Minister, and the President shall appoint that member of the Parliament
as the Prime Minister.
The Major issue is a manner of
presentation of “No Confidence” proposals against to the Prime Minister or to a
Cabinet Minister to the Speaker by a MP or by a group of MPs. The present system, as we have observed through
media, a few members of MPs can present such no confidence proposals which harassed
to dignity of that politicians. The
public do not aware of the mistakes, if it with the Speaker. We Propose that at least approximately one
half of the MPs in the Parliament should signed with their full name to such
no-confidence proposals. Further, such a no-confidence proposal should be with well
written document to prove the allegations of no confidence proposal, unless
otherwise that proposal may be a media roaring under the political scam, with
non-genuine facts BUT WITH ATTEMPTS to mislead citizens/voters. In Sri Lanka this has become a media roaring,
destroying the personnel characters of the politicians.
3.2 A
MAJOR REFORM FOR DEDUCTION OF EXECUTIVE PRESIDENTIAL
POWERS
IN SRI LANKA
This part
of article includes the major device to handle the executive powers more
democratic way. One most powerful wing
claims for the needy actions to rectify the executive presidential system under
the lines of the foremost democratic approach.
Reformatory concepts and ideas have been explained and argued for: 1. Replacement
of the executive presidential system to an executive parliamentary system, and
2. Need actions to amend the constitution to deduct some executive powers of
the presidential system. We can reform
the system without replacing the elected Presidential system. Elected Presidential system with executive
Parliamentary system [hybrid system] is the most appropriate system compatible
with our prevailing democracy.
If we
desire to follow the deducing argument to amend the Constitution to reduce
power of the President, we need to think about an alternative system.
3.3 THE EXECUTIVE ADVISORY COUNCIL
Since the
Executive Advisory Council is represented by the most eminent Ministers, the
President shall not have power to dictate at the Council or to make any attempt
to overrule the decisions of the Council, or to criticize the functions of the
Council, or to hold the harmful media conference against to the Council. In addition, “The Executive Advisory
Council” shall have power to review the functions of the Constitutional
Council and other Commissions established under the provisions of the
Constitution and report to the Parliament.
The Parliament may with due consideration of such reports take remedial
actions by passing a resolution in the Parliament. On request made by the Executive Advisory
Council, the Constitutional Council and the Commissions may provide advice as
directed upon them, to the Executive Advisory Council.
In such occasions, i.e., if
the Executive Advisory Council and the Cabinet of Ministers are not appointed,
or not in function, the President shall exercise executive powers until the
Executive Advisory Council and the Cabinet of Ministers are appointed.
A higher level council such as: a Executive
Advisory Council can be an alternative hand to use for modification of the
execution system. The following model of an alternative system is proposed for
further reasoning. For this, it needs to
amend, first the Article:4[b], and the Chapter VIII of the Constitution as “Chapter
VIII, Executive: The Executive Advisory Council and the Cabinet of Ministers”;
and the Article/Clause 42 of the
Constitution as proposed below:
We assume
that Article: 42 [1] is to be existing there in the Constitution.
42[2] There
shall be an Executive Advisory Council charged with the advice to the
President, and the President shall act on the advice of the Executive Advisory
Council in exercising powers, duties and actions under the Constitution and
other law. The President shall be a
member of the Council and Head of the Council. The president shall appoint
members to the council following the procedure indicated in subsection [3] below.
42 [3]
Members of the Council shall be appointed and consisted as follows:
1. The President,
2. The Prime Minister,
3. The Speaker,
4. Leader of the Opposition, and
one of MPs nominated by him,
5. The President nominated three
Cabinet Ministers,
6. The Prime Minister nominated
Three Cabinet Ministers,
7. Minister of Defense,
8. Minister of Foreign Affairs,
9. Minister of Home Affairs,
10. Minister of Finance,
11. Minister of Economic
Development,
12. Minister of Justice,
Following Ex-Officio members
shall be appointed by the President,
13. Chief Justice,
14. Governor of the Central
Bank,
15. Auditor General,
16. Secretary to the Minister of
Defense,
17. Secretary to the Treasury,
18. Secretary to the Ministry of
Economic Development and Planning, and
19. Attorney General
The Ex-officio
members shall not vote in the Council. The Ex-Officio members should attend to the
meetings of the Councils if the President called them to present to the
Council.
3.4 POWERS OF THE EXECUTIVE
ADVISORY COUNCIL
The
Executive Advisory Council shall have following powers:
[1]. The
Executive Advisory Council is responsible to the Parliament in exercise of
powers, duties, and due responsibilities.
In the case of matters which are not clearly expressed and written in the
Constitutional law and in existing law, the Council may submit reports to the
Parliament and receive general opinion of the Parliament.
[2]. The
Executive Advisory Council shall act in cohesion with mutual understanding for
the benefit of the executive government.
The President shall have power to review proposals submitted to the
Council, and submit review papers and proposals to the Council. The President may not retain with him to
review or study any proposal submitted to the Council for more than one
week. The President shall act on the
decisions or proposals approved by the Council.
[3] The
Executive Advisory Council shall exercise powers to advice the President and
the President shall act on the advice of the Executive Advisory Council. The President shall not have power to dictate
at the Council or to make any attempt to overrule the decisions of the Council,
or to criticize the functions of the Council, or to hold the harmful media
conference against to the Council.
Provided that the President shall have power according to his
opinion to rule out any advice on some subjects, such as, on the subjects of defense,
national security, and the control and management of the public property and
public enterprises including Boards, Authorities, and Corporations. But, in such decisions of the President, the
Parliament shall have power to overrule the President’s decision by passing
resolution in the Parliament.
[4]. In such occasions, i.e.,
if the Executive Advisory Council and the Cabinet of Ministers are not
appointed, or not in function, the President shall exercise executive powers
until the Executive Advisory Council and the Cabinet of Ministers are
appointed.
[5]. The Executive Advisory Council shall
confer special power to the President to dictate Presidential power only on the
subject of national defense in an emergency, and use of such powers and advice
of the Council shall not be questioned in any court of law, and such advice
shall not be exercised more than three weeks since the date of advice is
granted.
[6]. The
Executive Advisory Council shall prepare norms, rules, regulations and
procedures to assure the defense of the State, and to secure freedom and right
of the public, and national/ethnic integration; and furthermore, shall prepare
and formulate rules, regulations and procedures, under the provisions of Article 15
[1], [2], [3], [4], [7], and Article 16 of the Chapter Three of the
Constitution of 1978, and under the any other existing law, to prevent the
public and the prevention and operation of governance defending from the
organized aggressive and violent, and
non- genuine movements and organizations, including aggressive hypocrisy and politically biased non-rightful
trade unions and media.
[7]. The
Executive Advisory Council shall have power to advice to the Cabinet of Ministers
on the subjects of foreign affairs, foreign economic and political relations,
national economic development, planning and plan implementation, international
trade, control of public enterprises, and public properties, industrial development, environment and agriculture.
[8]. The
Executive Council shall have power to involve in formulation of State policy,
economic policy, and international trade affairs, and any other matter in the
context of social well- being and the national economic development.
[9]. The members
of the Executive Council shall have right to review any matter presented for cabinet
approval, and report and advice to the President to suspend or alter such
adverse proposals and any such Cabinet approvals, subject to the provisions of this article. In
addition, the Executive Advisory Council shall review and make comments on the
proposals and approvals of the Cabinet of Ministers.
[10]. The
Executive Advisory Council shall have power to review existing law, matters of
securing public security and freedom and
judicial procedures, and shall report to President and to the Parliament with
status reports.
[11] The
Executive Advisory Council shall go hand in hand with the Cabinet of Ministers
on the subjects of foreign policy, international relations in economic
development and modernization, foreign investments, and economic growth.
[12] The
President shall execute and exercise powers, duties and functions vested in the
President by the Constitutional Law provided in the Chapter XVIIA, on the establishment of the Provincial
Councils[from Article 154a – 154s of the Constitution].
[13]. The
Executive Advisory Council shall have power to advice to the President to
suspend any directive given by the Chief Ministers in the Provinces to the
Deputy Inspector General of the Provincial Police, if that order of directive
is incompatible and breaking of the existing law.
[14]. The
Executive Advisory Council shall have power to advice to the President in any
matter in the context of the operational system of the Provincial Councils, and
at a time of such matter is arisen to change the Chief Ministers of the
provincial Councils. Whatever provision
given in the Constitution in contrast to this provision, this provision shall
be read as enforceable, active and valid.
The Executive Advisory Council shall submit letters and documents to the
Parliament, when the Council thinks and concerns such letters and documents are
necessary to be discussed before the parliament.
[15]. No
institution administering justice and likewise no other institution, person or
authority shall have the power or jurisdiction to inquire in to, pronounce upon
or in any manner call in question any act or omission on the part of the
President, or the Executive Advisory Council or any member of the Council on
the ground that the provisions of the sub sections of this Article have not
been compiled with.
[16]. The Presidential Secretary shall act as the
secretary to The Executive Advisory Council, and the Executive Advisory Council
may have to be operated as a part of the Presidential Secretariat, and
[17]. The
discussions, minutes and any other information of the meetings of the Executive
Advisory Council shall not be released to the press, to media and to any other
person, or to any other organization without precise approval of the President
or of the Prime Minister. Such act shall
be offensive and punishable by any court of law. An attempt for distortion of the information
of the meetings of the Executive Advisory Committee shall be a fraud attempt
and punishable by any court of law.
IF WE THINK OF ALTERNATIVE WAYS
TO REDUCE VETO POWER IN EXXECUTIVE PRESIDENTIAL SYSTEM, IT IS TIME TO THINK
ABOUT IT WITHOUT REPLACING ELECTED PRESIDENTIAL SYSTEM. IN THE SUBJECTS OF MINISTRIES, THE PRESIDENT SHOULD KEEP ONLY
ONE SUBJECT, PERHAPS MAY BE “SUBJECT OF DEFENCE”. DOES THE
PRESIDENT HUMBLY ACCEPT THIS PROPOSAL??.
In
addition, amendments to Article 43[2] and 43[3] are needed in the case of the
Prime Minister’s position.
IN 20TH AMMENDMENT, COMPULSORILY AND
STRICTLY WE HAVE TO THINK ABOUT AMEMDMENTS TO FOLLOWING ARTICLES, IF WE ARE ON
FOR AMENDMENT TO REDUCE PRESIDENTIAL POWER:
Following
Articles should be amended.
1.
Article: 43 [2] should be amended:
replace it and substitute with following sentence:
Article 43 [2]. The Prime Minister shall be a
member of the Cabinet of Ministers, and the Head of the Cabinet of
Ministers. The Prime Minister shall be
in the charge and exercise of the subjects of planning, promotion of foreign
investments, and national economic development.
2.
Amendment of Article: 43 [3] to change
the system of appointing Prime Minister.
Article: 43 [3] should be abolished to enable
Parliament to nominate a MP to be appointed as the Prime Minister and should be
substituted with following sentence:
“Article: 43 [3]. The Parliament
shall have power to nominate a name of one MP in the Parliament to the
President who shall be appointed as the Prime Minister, and the President shall
appoint that member of the Parliament as the Prime Minister”.
Article: 43
[3]. The Parliament shall have power to
nominate a name of one MP in the Parliament to the President who shall be
appointed as the Prime Minister, and the President shall appoint that member of
the Parliament as the Prime Minister.
IF WE CHANGE THE EXECUTIVE
PRESIDENTIAL POWERS, WE HAVE TO THINK ABOUT THE PRESIDENTIAL ELECTION. THE WINNING CANDIDATE AT A PRESIDENTIAL ELECTION
SHOULD NOT HAVE TO RECEIVE MORE THAN 50 PER
CENT OF THE VALID VOTES. THE
AMENDERS SHOULD TAKE IN TO NOTICE THIS ISSUE.
Furthermore, new provisions are required to
follow the procedure to remove President from office, in the case of attempting
not to comply with the Constitution. An
example can be drawn from the 1972 Constitution.
3.5 PROCEDURE FOR REMOVING THE PRESIDENT FROM THE OFFICE
This method [given in 1972] cannot
be applied to remove the elected President. But, we can use alternative method in
association with this method. For
example, if the Prime Minister prepares a resolution proposal to remove the
President from his office, that proposal should be written well with genuine
reasons of such resolution, and the Speaker has to submit that resolution
documents to the Supreme Courts for justification of the impeachment
proposals. If the Supreme Court has
justified that the resolution of impeachment has acceptable reasons, the Parliament can pass that resolution for
removing the President from the Office of the President. This proposal seems to be democratic and
assuring the supreme Power of the Parliament.
If
we amend the Constitution to reduce the executive powers of the elected
President, it needs to amend the procedures removing the President from his
office.
If the elected President did not act
on the advice of the Executive Advisory Council, the President should remove by
resolution passed by the Parliament. In
the 1972 Constitution powers given to Parliament to remove the president: If
the President failed to act on the advice of the Prime Minister, no one go before
courts. Article 27[2] says, “No
institution administering justice and likewise no other institution, person or
authority shall have the power or jurisdiction to inquire in to, pronounce upon
or in any manner call in question any
act or omission on the part of the President on the ground that the provisions
of subsection [1] of this section have
not been complied with”. The only thing in such occasion can do
is to act according to the Article 26 [2], under the conditions of the office
of President of the Republic of Sri Lanka becomes vacant.
This method cannot be applied
to remove the elected President. But, we
can use alternative method in association with this method. For example, if the Prime Minister prepares a
resolution proposal to remove the President from his office, that proposal
should be written well with genuine reasons of such resolution, and the Speaker
has to submit that resolution documents to the Supreme Courts for justification
of the impeachment proposals. If the Supreme Court has justified that the
resolution of impeachment has acceptable reasons, the Parliament can pass that resolution for removing the President
from the Office of the President. This
proposal seems to be democratic and assuring the supreme Power of the
Parliament.
According to
the Constitution of 1972, the appointed President was the Head of the state,
Head of the Executive and Commander-in-Chief of the armed forces [see Chapter
VII, Article 19, 20, 21, 22, 23 on the powers and functions of the
President].
According to the Article 27 [1], the president
should act on the advice of the Prime Minister. If the President failed to act on the advice
of the Prime Minister, no one go before courts.
Article 27[2] says, “No institution administering justice and likewise
no other institution, person or authority shall have the power or jurisdiction
to inquire in to ,pronounce upon or in
any manner call in question any act or omission on the part of the President on
the ground that the provisions of subsection
[1] of this section have not been complied with”.
The only thing in such occasion what can do is to
act according to the Article 26 [2],
under the conditions of the office of President of the Republic of Sri
Lanka becomes vacant. According to this
condition, the President can be removed on the National State Assembly passing
a resolution of no-confidence against the President, proposed by the Prime
Minister.
Written by Dr. Dharmadasa
Tennakoon
EX. SENIOR RESEARCH FELLOW AT HARTI, COLOMBO.
Edited on 12.05.2018
This Article Published in website: <vanniculture.blogspot.com>
Address: Dr. D. Tennakoon. No.6/27 Menik Watta, Kalalgoda, Pannipitiya.
Telephone: 070 262 9584
