ADVISORY POWER OF THE CABINET OF MINISTERS - SRI LANKA.
A question can be asked that, "whether the Cabinet of Ministers has powers to function as advisory body or Advisory Board in the exercise of executive power of the Government"?.
I have noticed that our Constitution is different from American Constitution, and in our constitution, taking decisions on exercise of executive power is solely vested in the Cabinet of Ministers. This characteristic is highly expressed both in 1972 and 1978 Constitutions. In 1978 Constitution provisions are included to the President to act as the head of the Government and to act as the head of the Cabinet of Ministers. But being head of the Cabinet Ministers, the president has no power vested in him to advice the Cabinet of Ministers in performing of control and directions of the Government. But, the Cabinet of Ministers have such powers in control and directions of the Republic, according to the constitution. This state was emerged in 2001-2003, that then President stopped giving advice to the Cabinet of Ministers and to the Cabinet Ministers. Late Hon. Minister Kadiragamar pointed this legal base, when UNP came in to power with majority of MPs in the parliament.
On this basis, my answer is that, in performing of power of "control and directions" Cabinet of Ministers have sole power to give advice and directions to the "Executive System" and directly involve in the "Executive Mechanism" of the Republic of Sri Lanka.
I have noticed that our Constitution is different from American Constitution, and in our constitution, taking decisions on exercise of executive power is solely vested in the Cabinet of Ministers. This characteristic is highly expressed both in 1972 and 1978 Constitutions. In 1978 Constitution provisions are included to the President to act as the head of the Government and to act as the head of the Cabinet of Ministers. But being head of the Cabinet Ministers, the president has no power vested in him to advice the Cabinet of Ministers in performing of control and directions of the Government. But, the Cabinet of Ministers have such powers in control and directions of the Republic, according to the constitution. This state was emerged in 2001-2003, that then President stopped giving advice to the Cabinet of Ministers and to the Cabinet Ministers. Late Hon. Minister Kadiragamar pointed this legal base, when UNP came in to power with majority of MPs in the parliament.
On this basis, my answer is that, in performing of power of "control and directions" Cabinet of Ministers have sole power to give advice and directions to the "Executive System" and directly involve in the "Executive Mechanism" of the Republic of Sri Lanka.
In the 1972 Constitution of the Republic of Sri Lanka, Article 92[1] reads as follows: "There shall be a Cabinet of Ministers charged with directions and control of the Government of the Republic.....". This provision gives constitutional power to the Cabinet of Ministers, at collective responsibility, to act as an 'advisory body" in the exercise of executive power of the Government. In the 1972 Constitution, there was an another provision in the Article 27[1], that "The President shall always except as otherwise provided in 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 advice the President, on any particular function assigned to that Minister". This Article includes a clause like "except as otherwise provided by the Constitution", which has ambiguous meanings, as one can argue that all the executive powers which are directly vested in the president can categorize in the clause of "except as otherwise provided by the Constitution". But, Article 92[1] has clearly expressed the power of Cabinet Ministers, on collective responsibility, or on the consent of the majority of ministers, to function as advisory board to the President to assist and advise in exercising of presidential powers, duties and actions.
A similar provision is included in the 1978 Constitution of the Democratic Socialist Republic of Sri Lanka, that Article 43[1], which reads as "There shall be a Cabinet of Ministers charged with the directions and control of the government of the Republic....", which gives the power to the Board of Ministers to act as an "advisory board" in direction and exercise of executive powers, thus the Cabinet of Ministers, at collective responsibility, or at majority of Ministers' consent give directions to the "executive of the Government". When, majority of MPs are elected from the President's Political Party, and when the President is the leader of that Political party, the Cabinet of Ministers will not act as advisory board, because, majority of the MPs keep close touch with the President, and keep trust and confidence on the President. But, when, a majority of MPs are elected to Parliament from a different party, and a new government [single party government or coalition government] is established, the Cabinet of Ministers use their collective power to give directions and advice to the President, as this state was created in 2001-2003 UNP Government.
Under this constitutional power of the Cabinet of Ministers, the Prime Minister has responsibility to manage such control and directions of the Government.
In 1972 Constitutions, the President's position is defined as:
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".
In 1978 Constitution the position of the President is elaborated as follows: Article 30, "There shall be a President of the republic of Sri Lanka. The President shall be the Head of the State, The Head of the Executive, Head of the Government and the Commander-in-Chief of the armed forces. The difference appeared in 1978 Constitution is that, The President become the Head and a member of the Cabinet of Misters, and keep himself some subjects not allocated to the ministries. No any constitutional provision included in our constitution to control over the Cabinet of Ministers.
The key provision included in our Constitution is that power of act in "control and directions of the Republic". This power indicated in our constitution should not be discredited.
Giving response to the statement of President Dr. Rajendra Prasad in 1960, the Supreme Court of India gave a conclusion as: "Under Article 53[1] of our our Constitution the executive power of the Union is vested in the President. But under Article 74 "there is to be a Cabinet of Ministers with the Prime minister at the head to "aid and advise" the president in the exercise of his functions. The President has thus been bade of a formal or constitutional head of executive and the real executive powers are vested in Ministers or the Cabinet [Basu 2001, p193]. In this conclusive judgment, the supreme court has paid attention to the clause "aid and advice", bases on the statement that " there is to be a Council of Ministers" ... to "aid and advice". This words are similar to the words in our Constitution that " There shall be a Cabinet of Ministers charged with the direction and control of the Republic".
On this ground can be concluded that the cabinet of Ministers have power to play in guiding, controlling, and directing the Executive Government.
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Under this constitutional power of the Cabinet of Ministers, the Prime Minister has responsibility to manage such control and directions of the Government.
In 1972 Constitutions, the President's position is defined as:
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".
In 1978 Constitution the position of the President is elaborated as follows: Article 30, "There shall be a President of the republic of Sri Lanka. The President shall be the Head of the State, The Head of the Executive, Head of the Government and the Commander-in-Chief of the armed forces. The difference appeared in 1978 Constitution is that, The President become the Head and a member of the Cabinet of Misters, and keep himself some subjects not allocated to the ministries. No any constitutional provision included in our constitution to control over the Cabinet of Ministers.
The key provision included in our Constitution is that power of act in "control and directions of the Republic". This power indicated in our constitution should not be discredited.
Giving response to the statement of President Dr. Rajendra Prasad in 1960, the Supreme Court of India gave a conclusion as: "Under Article 53[1] of our our Constitution the executive power of the Union is vested in the President. But under Article 74 "there is to be a Cabinet of Ministers with the Prime minister at the head to "aid and advise" the president in the exercise of his functions. The President has thus been bade of a formal or constitutional head of executive and the real executive powers are vested in Ministers or the Cabinet [Basu 2001, p193]. In this conclusive judgment, the supreme court has paid attention to the clause "aid and advice", bases on the statement that " there is to be a Council of Ministers" ... to "aid and advice". This words are similar to the words in our Constitution that " There shall be a Cabinet of Ministers charged with the direction and control of the Republic".
On this ground can be concluded that the cabinet of Ministers have power to play in guiding, controlling, and directing the Executive Government.
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DOES CABINET
OF MINISTERS ACT AS AN ADVISORY BOARD IN EXERCISING OF EXECUTIVE POWERS, DUTIES,
AND ACTIONS
According to above given account on operational
system of the executive powers, the Cabinet of ministers have powers to act as
advisory board in exercising the state executive power. The most important clause is “there shall be Cabinet
of Ministers charged with the direction and control of the government”. In the Constitution of 1972, a similar Article was included.
In 1972 Constitution, Article 92[1]
reads as: “There shall be a cabinet of ministers charged with the direction and
control of the Government of Republic, which shall be collectively responsible
to the National State Assembly, and answerable to the National State Assembly
on all matters for which they are responsible”.
In 1972 Constitution, there was an another
Article, the Article 27[1], which reads as follows; “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 advice the President on any
particular function assigned to that Minister”
This article is with ambiguity, as it has not given real directions of
the which powers, duties, and acts of the President to be surrendered upon the
advice of the Prime Minister.
Thus, the President has acted
according to the provisions given in Article 92[1], as it fits parallel stand
with the British convention, and the President acted following the British
convention.
In the 1978 Constitution the powers
of the Cabinet of Ministers have been sited as follows: Article 43[1] reads as “ There shall be a
Cabinet of Ministers charged with powers of aid and guide[control] the Government, and direction
of the Government of the Republic. The Cabinet of Ministers shall collectively
responsible and answerable to the Parliament. [please consider above is the
direct translation of Sinhala version of the Constitution].
On these
circumstances the Cabinet of Ministers have right to function as an Advisory
Body to exercise of executive powers according to the Constitution. If President does not claim for any power,
there may not be any controversy regarding the exercise of executive powers. The Cabinet of Ministers should keenly
adhered to their collective responsibility, and may be they have strength to
prohibit from media statements which harmful to that collective responsibility
and cohesion. Think about country, poor
people, and poor economy. Do not rally
and centre on personal benefits.
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