REFORM
FOR DEDUCTION OF EXCLUSIVE PRESIDENTIAL POWERS
THE
CASE OF SRI LANKA
Written
by Dr. D. Tennakoon.
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 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.
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”.
President 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.
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.
Minister Explains Need of Amendments |
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.
The Prime Minister should be the head of the Cabinet of ministers. For this we have to consider following amendments.
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.
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:
Freedom of Beliefs |
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
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.
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:
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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