|
|
 |
 |
| Sunday, 13 July 2003 |
 |
|
 |
Features |  |
| News Business Features Editorial
|
Constitutional non- provision for co-habitation : An inexcusable blunder Excerpts of Felix Dias Bandaranaike Memorial Lecture delivered by Deshamanya H. L. de Silva P.C. on Thursday June 26. Continued from last week
Firstly, one has only to look at the text of the Constitution of France of the Fifth Republic (I am able to use only an English translation) to observe the qualitative difference in language from its Sri Lankan counterpart, arising from the manner in which the provisions are framed. The French document resembles a general statement of political rules and principles, many of them rather ambiguous and of a flexible nature, open to creative interpretation. In contrast, the Sri Lankan Constitution of 1978 which is essentially a legal document is framed in quite precise language setting out in some detail rights, duties and obligations with the undefined political element being quite marginal. It is characterized by a certain rigidity in its provisions, which require express amendment if they are to be altered or modified in any way. There is no room for implied amendment or any implied repeal of its provisions. Secondly, it is fallacious to assume that in the Sri Lankan Constitution, the plain meaning, attached to words which confer executive powers on the President (that leave no room for doubts as to the repository of the power and the reality of the powers that may be wielded), is suddenly transformed and evacuated of its original meaning when the majority in the Legislature following a general election is found to be from a political party different from that of the President. In a written Constitution of express words conferring powers on the President are to be differently interpreted, (consequent on a subsequent alteration in the composition of the Legislature), then the precise effect of such a sea change in the exercise of the President's powers must be expressly stated in plain words. In a written Constitution if powers, that were originally conferred were to be exercised by the President in the exercise of his individual discretion, which lie at the heart of Presidentialism, are henceforth to become a mere nominal exercise of those powers, according to the will and decision of another, then there must be clear words that are indicative of such a radical change in the constitutional position.
A clear and express provision in the Constitution, that the President must henceforth exercise all executive powers on the advice of the Prime Minister who enjoys the confidence of the Legislature must be contained in the Constitution itself, before one concludes that the exalted status of the Executive President has overnight been altered to the relatively lowly status of a mere constitutional head bereft of real political power. Since the possibility of such a change occurring during the pendency of the Presidents term of office was envisaged (or ought to have been envisaged) the failure to so provide was a grave error and an inexcusable blunder. Since the possibility of the elected President in the course of his term having a hostile majority in the Legislature was, according to Wilson envisaged, and assuming further that in such an event the President was expected to meekly accept his changed role as the constitutional head, it is surprising that no express provision to that effect was enacted, if such a radical transformation was to take place. It would have made the constitutional position crystal clear. It would have relieved us of the strains and stresses that emerge from the state of virtual Cold War that apparently exists between the President and the Cabinet of Ministers which is detrimental to the national interest and the defense of Sri Lanka. Thirdly, Professor Wilson's solution which suggests that when the Executive President loses the support of the majority in the Legislature, he would discreetly withdraw from active participation in the several executive functions, is nothing short of a plea for the abdication of his powers and authority as President. How is this possible in the face of Article 75 proviso (a) which prohibits even Parliament from making a law suspending the operation of the Constitution or any part thereof? If the President deliberately renounces or jettisons powers, rights, duties and obligations which the Constitution has vested in the President, could not this be construed as an intentional violation of the Constitution and be a ground for impeachment under Article 38 (2) (i)? Fourthly, in my submission while the concept of cohabitation is an appropriate and proper description of the relationship between the President and the Prime Minister under the French Constitution when mutual understandings had to be reached between the two, in view of certain developments that had earlier taken. Place under President de Gaulle, which did not accord with subsequent political developments in France, the same considerations do not apply in Sri Lanka. President de Gaulle had during his Presidency assumed considerable powers and authority, as President, than were strictly warranted by the actual terms of the French Constitution. Hence there was room for flexibility of interpretation in a changed political context that occurred later. It was when the balance of political influence and authority had altered in favour of the Prime Minister in later years, during the time of President Mitterand that the cohabitation theory was evolved. The degree of forbearance and restraint in the exercise of political power was in the nature of an inevitable tactical withdrawal from a position of confrontation with the Legislature and its dissolution which would have been legally not possible under the French Constitution was a necessity unlike under the Sri Lankan Constitution, which gives the President an unqualified right to dissolve the Legislature after the expiry of one year. In Sri Lanka when the President had strong support in the Legislature the Prime Minister was more or less relegated to a subordinate position in the power structure. In contrast Article 21 of the French Constitution which gives considerable authority to the Prime Minister provides inter alia as follows: "The Prime Minister shall direct the activities of the Government. He is responsible for national defense. He ensures the implementation of enactments. Subject to the provisions of Article 13 he has the power to make regulations and makes appointments to civil and military posts. He may delegate certain of his powers appointments to civil and military posts. He may delegate certain of his powers to minister. If need to, he may deputise for the President of the Republic in chairing councils and committees provided for under Article 15". On the other hand, during the regime of President Jayewardene and that of his successor, both Prime Minister Premadasa and Prime Minister D. B. Wijetunge had little influence and authority. They certainly did not have any of the powers as found in Article 21 of the French Constitution. It is a mistaken notion to assume that when, at a General Election for the election of Members of Parliament, subsequent to the election of the Executive President a political party other than that of the President has a majority, that result is tantamount to a virtual withdrawal or a recall by the Electors of the mandate given to the President. The President is elected as Head of Government to exercise for a fixed term. The totality of the executive power of the People which is declared inalienable, not only in the hands of the People but also in the hands of the President, as in the channel prescribed for its exercise designated by Article 4(b). Having regard to the principle of equality of the franchise, recognised in Article 93 and the principle of equality recognised through the system of proportional representation recognised in Article 99 that is not rationale for claiming that after a general election the political party with the largest number of elected representatives (which may be marginal) has a right to either a monopoly of seats in the Cabinet or to a disproportionate share of the executive power which seems to be a conceptual hangover and an ill-founded assumption from Westminster style Parliamentarism and its 'first past the post' system of determining the elected representative. With the constant denunciation of majoritarianism in a plural society and the incessant demand for power-sharing not merely at the periphery but at the centre as well, it seems to me that an Executive President elected on all-island basis would provide the necessary cohesion and widespread acceptance to form a 'grand coalition' of all parties in the legislature to wield executive power. If we are compelled to suffer the pathological condition of giantism in Cabinet government with fifty Ministers, let there be at least a fair distribution of the loaves and fishes among those elected to Parliament from all parties. Such constitutional features as proportional representation, measures of regional autonomy and the grand coalition of parties are all part of the consociational solution to the problems of a plural society. In a multi-party democracy a constitutional obligation to form Coalition Cabinets accords with principle. It seems to me that it is futile to cling to the myth of cohabitation in the prevalent political culture as a solution to the periodic political convulsions that afflict us. The reason is that those who propound the theory of cohabitation do not seem to have any clear idea of its meaning or its implications. Current exponents of cohabitation are unable to distinguish it from ill-concealed coercion, intimidation by the dominant partner whereas, an authentic relationship of cohabitation needs to be founded on mutual respect, trust, restraint and forbearance. The Cabinet was formed amidst threats of calling out mobs onto the public streets and besieging the President's office as a demonstration of so-called 'peoples power'. That is not democracy but 'mobocracy' and forced association upon imposed terms and is not describable even as "a marriage by habit and repute" (which is a voluntary association) but is no different from a forced 'shotgun wedding' which can never be the foundation of even extra legal cohabitation. It seem to me therefore that if the present hybrid constitutional system of a Presidential Executive, willy nilly, yoked to a Cabinet of Ministers (which is the case today) is to provide any degree of stability in government, we must abandon the present masquerade of cohabitation and take account of the legal realities, which includes a valid and operative Constitution that is yet in full force and effect and is the foundation of the legal order. Since Article 75 prohibits any attempt to suspend the operation of the Constitution or any part thereof which is declared to be the Supreme Law of the Republic, Article 30 which declares the President of the Republic of Sri Lanka as the Head of State, the Head of the Executive and of the government remains in full force and effect. Any political theory that claims that without a change in the law, a mere change in the composition of the legislative organ of government, can bring about a change in the nature of the powers vested in the President as Head of the Executive and converting them from real powers to powers of a nominal or formal nature is simply not maintainable. Unlike in the First Republican Constitution there is no requirement in the Constitution of the Second Republic that the President must, in the performance of his functions as President, only act on the advice of the Prime Minister. This is both a fundamental and essential change in the Presidential Office, which distinguishes it from the former. The nature and character of the constitutional obligation and duty attaching to the office of President cannot be changed or whittled down. At the highest, the President may if thought necessary consult the Prime Minister in regard to the choice of Ministers to be appointed to the Cabinet, but the ultimate determination and choice remains that of the President and his/hers alone for which the President must take responsibility and cannot be seen to be acting at the dictation of another. This is in contrast to Article 8 of the French Constitution which states: On the proposal of the Prime Minister he (i.e. the President) appoints and dismisses the other members of the government. Further under Article 21 of the Constitution of France, it is provided that the Prime Minister shall direct the activities of the Government. It seems to me that unless the political party to which the President belongs is reduced to negligible numbers in the legislature, so long as the President is the Head of the Cabinet and is called upon to determine the composition of the Cabinet and change the assignment of subjects and functions according to political exigencies that arise in the Country the Constitution requires and demands of the President his/her active participation in the direction and control of government and not the role of a mere spectator or observer or nominal head. To the extent possible, in the formation of a coalition Cabinet on the results of the General Election of December 2001, the UNF would be entitled to approximately 46%, the PA to 37% and the other parties the balance 17% of the seats in the Cabinet of Ministers. If the expected degree of consensus and agreement is not obtainable for the formation of a coalition, despite the sword of Damocles of a dissolution of Parliament, a fresh election is the only other course of action. Such an arrangement is more consonant with semi-presidential government introduced by the 1978 Constitution, than the virtual relapse to parliamentary government which is unconstitutional and the pretence of cohabitation to which mere lip service is paid. In conclusion, may I say a word about the recent imbroglio concerning the deletion of the Development Lotteries Board from the subjects assigned to the Minister of Economic Reform, Science and Technology. The words of Article 44 in themselves are all too clear to warrant the ministrations of spin doctors in their interpretation. I need do no more than cite the views of Professor Wilson who is commonly considered as the apologist for the Gaullist system here and was adviser to President Jayewardene. He was obviously giving expression to the 'original intent' of the framers when he said: "Furthermore, the Prime Minister, members of the Cabinet and other ministers are entirely dependent on the President for their offices. For Article 43(2) recognises the President as Head of the Cabinet. It is he who appoints the Prime Minister, determines the number of Ministers that should be in the Cabinet and assigns subjects and functions to such ministers. In all this he may or may not consult the Prime Minister; and he could at any time, on his own responsibility, even without consulting the Prime Minister, change the assignment of subjects and functions and the composition of the Cabinet of Ministers (Article 44(3)) (pg 44 the Gaullist System in Asia). Those who, despite the clear words of Article 44 seek to argue that consultation with the Prime Minister by the President is not only mandatory but that even its necessity is a matter that has to be objectively determined, are not construing language but seem to be engaging in illegitimate creative interpretation. The dissenting words of Lord Atkin in the famous case of Liversidge v. Anderson are relevant in this regard. He observed with superb irony: 'I know of only one authority which might justify the suggested method of construction. 'When I use a word' Humpty Dumpty said in a rather scornful tone, it means just what I choose it to mean, neither more nor less'. 'The question is' said Alice 'whether you can make words mean different things.' 'The question is' said Humpty Dumpty 'which is to be master that is all' (From Alice Through the Looking Glass) Liversidge v. Anderson (1941). Mahanayaka Thera's message to Jaffna citizens The World Solidarity Forum for Sri Lanka organized a workshop and a public meeting at the Veerasingham Hall in Jaffna on Saturday, 28th and Sunday, 29 June 2003. Several prominent Buddhist Monks, Christian and Hindu Priests, heads of Tamil organizations and their members, and all ethnic communities of Sri Lanka were represented at these two events. The Most Venerable Mahanayake Thera of the Asgiriya Chapter was to participate at the Public Meeting. Due to security reasons his visit was cancelled. We publish the message to the people of Jaffna from the Venerable Mahanayake Thera which was read at the Public Meeting. Venerable Members of the Maha Sangha, Leaders of all Religions, Beloved People. When the World Solidarity Forum invited me to Jaffna, I accepted the invitation readily and with understanding. At the time, the invitation was extended to me, I thought it was a good opportunity to meet the people of Jaffna, who have suffered for more than two decades, and to understand fully their pain and suffering, problems and needs, and thereby to build a bridge of friendship between the peoples of North and South. But, unfortunately, due to advice from the security forces, I have been prevented from coming. I am very very sorry about this. First of all, I want to say that the common people in the South regard you with love, respect and understanding, although from time to time there are differences of opinion, I want to emphasise that the people in the South accept the common people in the North as Sisters and Brothers. The World Solidarity Forum has been working in 17 districts among the Sinhala, Muslim and Tamil people for the last ten years to discuss the problems and the difficulties of the people of the North. Therefore the people are aware of the terror of War and the value of Peace. |
|
News | Business | Features
| Editorial | Security Produced by Lake House |
