REFORM FOR DEDUCTION OF EXCLUSIVE PRESIDENTIAL POWERS

REFORM FOR DEDUCTION OF EXCLUSIVE PRESIDENTIAL POWERS

THE CASE OF SRI LANKA

Written by Dr. D. Tennakoon.

The 20^th 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 19^th 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 proposed system by this article, that 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 stability could be seriously deteriorated since 2020 with the trumpery, politically narrow minded patches to the Constitution.  This is a genuine warning.

The Presidential System of Government

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 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.  

President of Sri Lanka

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] 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”.

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].  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.  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 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      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.  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 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.  

Minister Explains Need of Amendments

    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.                               

Change in Execution of Powers of the Executive Presidential 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.  The President shall be the Head of this council.  The President should handle and act on only one subject of the ministerial subjects.  

Prime Minister of Sri Lanka

The Prime Minister should be the head of the Cabinet of ministers. 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 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 is a valuable and timely.

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 not aware of the mistake, 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 to mislead citizens/voters. In Sri Lanka this has become a media roaring, destroying the personnel characters of the politicians.

A Major Reform for Deduction of Executive Presidential Powers in Sri Lanka

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 a executive parliamentary system, and 2. Need actions to amend the constitution to deduct some executive powers of the presidential system.

Freedom of Beliefs

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.  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 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.

[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.

[4] 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 have power according to his opinion to rule out any advice on the subjects of defense, national security, and the control and management of the public property, and public enterprises including Board, Authorities, and Corporations.  The Executive Advisory Council is responsible to the Parliament in exercise of powers, duties, and due responsibilities.  The Executive Advisory Council shall confer power to the President to dictate Presidential power in an emergency, and use of such powers 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. The Executive Advisory Council is responsible to the Parliament in exercise of powers, duties, and due responsibilities.

[5]. 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 trade unions and media.

[6]. 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.

[7]. 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.

[8]. 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.

[9]. 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.

[10] 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.

[11] 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].

[12]. 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.

[13]. 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.

[14]. 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.

[15].  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

[16]. 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.  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.

IF WE THINK OF ALTERNATIVE WAYS TO REDUCE VETO POWER IN EXXECUTIVE PRESIDENTIAL SYSTEM IT IS TIME TO THINK ABOUT IT WITHUT 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??.

AMENDMENT TO REDUCE PRESIDENTIAL POWER:

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.

Freedom of Speach and Trade Union Rights

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.

Written by Dr. Dharmadasa Tennakoon

General cause:

The Executive Advisory Council shall confer power to the President to dictate Presidential power in an emergency, and use of such powers 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. The Executive Advisory Council is responsible to the Parliament in exercise of powers, duties, and due responsibilities.

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