19A ends all-powerful Presidency:

Divesting executive powers

by Ranil Wijayapala

With the executive powers of the President being clipped to a certain extent under the 19th Amendmen to the Constitution, the President has to decide collectively providing a fresh boost to democracy and good governance according to constitutional expert Dr. Jayampathy Wickremaratne.

The political leaders made an effort to restrict powers of the executive through the 19th Amendment to the Constitution, which they thought would one day take the country towards a dictatorial regim

Constitutional reforms

Except for a few, a majority in Parliament supported the passage of the 19th Amendment to the Constitution making way to progressive constitutional reforms in the country. President Maitripala Sirirsena deviating from the tradition of making false promises to people committed himself to make the 19th Amendment a workable piece of legislation providing leadership to ensure the passage of it in Parliamen

The 19th Amendment to the Constitution, now a part of the Constitution after it was certified by Speaker on May 15 provides guidelines for the exercise of executive powers by the President of the country.

Though, the country could not abolish the executive presidency totally due to political constrains, the 19th Amendment to the Constitution restricts the powers of the President directing him/her to take collective decisions on vital matters to the country.

According to Presidential Counsel Dr. Jayampathy Wickremaratne the 19th Amendment to the Constitution restricts 65 percent of the powers vested with the President.

However, the President will continue to be the Head of State, Head of the Executive, Head of the Government, Head of the Cabinet and a member of the Cabinet and he will continue to preside over the Cabinet.

But the powers the President enjoyed over the appointment of Cabinet Ministers, State Ministers and Deputy Ministers on his own has been restricted under the 19th Amendment. "When appointing Cabinet Ministers, he has to act on the advice of the Prime Minister.

"The Prime Minister is a Member of the Parliament who commands the majority in the Parliament.

Therefore, it is finally the Parliament through the Prime Minister that nominates the Cabinet. Although the Parliament does not take a decision it is the Prime Minister who advices the President in the appointment of Ministers and the Deputy Ministers", Dr. Wickremaratne added.

In this instance the will of the Parliament is conveyed to the President through the Prime Minister indirectly, he added.

"Now the position of the Cabinet of Ministers is strengthened because the President cannot appoint anyone to the Cabinet as and when he wishes. He could only appoint someone with the advice of the Prime Minister", he added.

"In the allocation of subjects and functions and the number of Ministries, the President will make the final decision. In this instance too the President has to decide 'in consultation with' the Prime Minister.

According to the interpretation of the Courts 'in consultation with' the President will have to consult the Prime Minister and it will be a consultative process explaining the process further, Dr. Wickremaratne said.

"It is not 'after consultation' or 'having consulted' but 'in consultation with'", he added.

Consultation

"When we say 'in consultation with' the process goes on untill an agreement is reached. If there is an agreement at the beginning there is no problem. But if the President does not agree there will be a consultation process.

At the end of it the president will try to reach agreement with the Prime

Minister and finally if there is no agreement the President will take the final decision", he added.

According to the Indian Supreme Court interpretation of the term 'in consultation with' the President would have a duty to give the reasons to the Prime Minister why he is not acting according to the wishes of the Prime Minister.

"But the President will do so only when such consultation is necessary. I think if the President and the Prime Minister are from the same party he may not consult the Prime Minister. But when they are from different political parties the constitution should be workable and I am sure the President will not act in consultation with the Prime Minister", he added.

Even after the enactment of the 19th Amendment, the President may change the assignments or the subjects of the Ministries.

"Even if he changes the subjects and assignments and also remove the Ministers from the Cabinet, he can't appoint the Ministers except for the advice of the Prime Minister", the Dr.Wickremaratne added.

Though the Prime Minister can be removed by the President before the enactment of the 19th Amendment, now he cannot remove the Prime Minister.

"That too constrains the powers of the President", he added.

The 19th Amendment to the Constitution also constraints the Presidential powers on the dissolution of Parliament.

"Earlier the President could dissolve the Parliament at anytime.

The Parliament could be dissolved even during the first year if the previous Parliament ran the full course of six years. If the previous Parliament was dissolved before six years then the succeeding Parliament cannot be dissolved within the first year. After the first year the

President can dissolve the Parliament. That is now restricted. For four and half years after the five year-Parliament can be dissolved by the President only when a two- third majority makes a request from him", he added.

"I think it is good and then the parties would start working together. People are against frequent elections. People don't want elections every other year. And the President should not have the power to arbitrarily to decide when to call an election", he said.

Under these circumstances, if a single party could not continue to enjoy the simple majority in the Parliament they will have to work it out within the Parliament without going for a dissolution.

If this situation is compared with the situation that arise during the period of the cohabitation government under President Chandrika Bandaranaike Kumaratunga and Prime Minister Ranil Wickremesinghe from 2001 to 2004, the things that happened during that period cannot happen now." At the beginning of that period former president Kumaratunga appointed Ministers on the advice of PrimeMinister Wikremesinghe.

Clear majority

Ranil Wickremesinghe had a clear majority in Parliament and it came to a point where relations between the president and the ruling party in Parliament worsened and President Chandrika did not even attend Cabinet meetings. She wanted to take over the Development Lotteries Board and she could not even print the gazette. But she knew what her powers were. She waited till the political atmosphere is conducive for her to act. Then she took over key Ministries and appointed her own Ministers and then dissolved Parliament, he added.

" None of that can be done today under a cohabitation Government. In that scenario Ranil Wcremesinghe had a clear majority in Parliament but the president could use her powers. Now those powers are gone. The power of dissolution and removal of the Prime Minister the powers of the president are circumscribed now", he added.

"The other difference is that the President has limited immunity. The President can be taken to courts on official matters. His official acts are subject to judicial review under fundamental rights.People can go to the Supreme Court and file a fundamental right petition against the President in the name of the Attorney General responsible. So his all official acts now come under judicial review", he said.

A number of commissions have been appointed for the purpose of appointments under the Constitution Council.

"Though there is no satisfaction over the composition of the Constitution Council to minimise the adverse effects of politicians dominating the Constitutional Council I hope the Members of Parliament who are appointed to the CC are people who are responsible and would be the people this country would respect. That would ensure the independence of the commission", he said.

Manipulation

"The Constitutional Council cannot be manipulated unlike in the earlier regime where President Mahinda Rajapaksa did not even appoint the Constitution Council.

Even during President Chandrika's period the Election Commission was not appointed. That cannot be done now. Once the nominations are made within two weeks the President has to appoint the Constitutional

Council. If he does not appoint they are deemed to be appointed", he added.

In an event of a dissolution of Parliament a special provision has been made for the Constitutional Council to hold office until the new CC is appointed with the formation of a new Parliament.

"The existing committees can continue until the new commissions are appointed by the Constitutional Council"

"According to the powers under the 17th Amendment, the President's appointments to the Higher Judiciary has to be approved by the Constitutional Council. That was done away by the Parliamentary Council that was appointed", Dr. Wickremaratne added.

Therefore, the President will have to decide collectively now that 65 percent of the powers vested on him taken off through the 19th Amendment.