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| Sunday, 7 December 2003 |
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President, Parliament and 3/11 by D. Soysa Ever since the 1978 Constitution was introduced, many academics as well as politicians have analyzed, criticized and even condemned JR's masterpiece as a "Bahubutha" Constitution. Comparisons have been made and are being made with the Constitutions of the USA, UK, France and India. Some believe that our Executive Presidency (EP) is modelled on the US Constitution, but not quite. Others believe that the Parliament is modelled on the Whitehall model - but not quite. The judiciary too is believed to be on the US model - but not quite. So much alike and yet so different, is the peculiarity of the 1978 Constitution. According to some who witnessed the constitution in operation it is modelled on JR's ambition to be the most powerful, subjugating the parliament and judiciary within and outside the Constitution. In drafting the Constitution JR was even blind to the possibility that his party could someday loose the powerful presidency. This myopia resulted in a built in party based cleavage or a flashpoint between President and Parliament, when the President and the majority in Parliament belong to two rival parties. In the USA and France however, harmony prevails in such situations. Given the intensified rivalry between the two parties such a scenario in Sri Lanka is a far cry from reality. 1978 Constitution transferred the executive power from the Parliament or the Cabinet to the President. Yet while the head of the Cabinet is the President, Cabinet of Ministers have to be MPs unlike in the USA, where the 10 members of the Cabinet are not members of the Congress. As JR pronounced on a number of occasions, the President of Sri Lanka according to Article 44 (2) may assign to himself any subject or function and if he wishes to, become a Cabinet by himself, thereby establishing an authoritarian government. He also emphasized, that he alone without both the Cabinet and Parliament can continue to remain in power. Professor W. A. Wisva Warnapala highlighted this in an address he made in 1987 at a Seminar in Kandy organized by the American Studies Association. US and Sri Lanka Presidents The President of the USA is elected for a term of four years indirectly, unlike the Sri Lanka President who is elected directly for a period of six years. Although the US President is the most powerful elected person on the planet, he has no power to dissolve, prorogue, or change the tenure of Congress, which is fixed by the Constitution. He could however call special sessions of the Congress and address the Congress through the state of the Union message. JR's 1978 Constitution however, gives indisputable power to the President to summon prorogue or dissolve Parliament by proclamation from time to time (Art. 70). In dissolving summoning or proroguing Parliament there is no requirement in the constitution for the President to consult the Prime Minister, Cabinet, Parliament or anybody else. Prof. G. L. Pieris has observed that Sri Lanka's experience of previous Constitutions and imperatives of development led to the conviction that an executive president elected directly by the people and exercising authority on the basis of his popular mandate irrespective of any imprimatur of the legislature was necessary (his address at a Seminar in Kandy in 1987). He added that this aspiration was fulfilled by the 1978 Constitution in which the President "is invested with the Power to summon prorogue and dissolve Parliament". In his concluding remarks at this Seminar Prof. Pieris observed that "neither in the US nor in Sri Lanka is the legislative organ of government is invested with omni competence in the sense in which Parliament is considered sovereign in British Constitutional law". Furthermore to illustrate that the supremacy of Parliament of Sri Lanka succumbs to the sovereignty of the people Prof. Peiris pointed out that in terms of Art. 85 (2), a Bill rejected by Parliament is constitutionally capable of becoming law once its secures the approval of the people at a referendum held on a reference by the President. Prof. Warnapala has observed, at the same seminar that Art. 30, 33 and 34 assign to the President powers similar to those of the US president. He also commented that according to Art. 42 of the Constitution, the President has been made responsible to Parliament for the due exercise and discharge of his powers, duties and functions. However he added, the Constitution does not say that the President is answerable to Parliament. Prof. A. J. Wilson has observed that the President "is no longer answerable to the legislature; the Constitution only makes him responsible to Parliament. Then there is the fact that the Standing Orders of the House do not permit any reference to be made to him or have his conduct questioned except on a substantive motion. Furthermore the Prime Minister, members of the Cabinet and other Ministers are entirely dependent on the President for their offices (The Gaullist system in Asia - the Constitution of Sri Lanka). Prof. Warnapala commented that there is a limitation on the legislature to such an extent that the policy of the President cannot be criticized by Parliament. The Cabinet is however, collectively responsible and answerable to Parliament in terms of Art. 43. The President who is the head of the Cabinet and who may be in charge of several ministries as JR did by assigning to himself six Ministries, including Defence is not answerable to Parliament. This anomalous position is partly responsible for the present problem, aggravated by the President heading a cabinet of UNF members. The Founding Fathers of the US Constitution were so determined to include the principle of the Separation of Powers in the US Constitution, that according to Herman Finer, it is today the most important polity which operates upon that principle. It is so rigid that it is a miracle the US Constitution functions without a breakdown according to some commentators. Occasionally as happened during the Presidency of Bill Clinton the control of the purse by the Congress could lead to a crisis. For several days public services ground to a halt when the Congress refused to pass a budget presented by the President. Yet, during the last 200 years only 26 amendments were written into the US Constitution. In sharp contrast to this, 17 amendments were made to Sri Lanka's Constitution during the last 15 years. The first amendment was to deprive the civic liberties of Sirimavo Bandaranaike, leader of the opposition. The second provides for the expulsion of members from a political party. According to that amendment government MPs who are expelled from the party lost their seats while opposition MPs who crossed over to the Government side did not lose their seats. Mr. Rajadurai of the TULF crossed over and joined the Government ranks. Dr. Neville Fernando who criticized the Government policy on the ethnic conflict was expelled. But what was even more questionable of the legitimacy to the constitutional order was that the expelled MPs were replaced with chit MPs. Voters were denied their rights to elect another MP. Perhaps the worst method used to subjugate Parliament by JR was obtaining undated letters of resignation from all government party MPs some of whom are among those criticizing the President Chandrika for proroguing the Parliament on 3rd November until 19th November. JR by demanding undated letters of resignation made it clear that all government MPs remain in Parliament at his own pleasure. Clearly this interfered with the MPs' rights to function freely and infringes on the rights and privileges supposed to be protected by the Parliamentary Privileges Act. Although JR's government had a 4/5th majority in Parliament guaranteeing political stability, the methods used by JR to control Parliament is indicative of his mental insecurity. Perhaps the saddest testimony to the dociled majority in the Parliament at that time is that no one challenged in the Courts this blatant violation of the sanctity of Parliament proceedings. Those politicians who are accusing the present President of violating the Constitution by proroguing Parliament are among the MPs who succumbed to JR's authoritarian rule and thereby sacrificing the sanctity of Parliament and its privileges. Even the judiciary did not escape from JR. Measures taken to interfere with the judiciary is legendary and cannot be erased from the history books as the darkest hour of the independence of the Sri Lanka's judiciary. Fortunately for Sri Lanka, JR's three successors, Premadasa, Wijetunga and Chandrika jettisoned the dirty tricks of JR. Several opposition MPs as well as others have already quoted Article 70 of the Constitution which reads as follows: "The President may, from time to time, by proclamation, summon, prorogue and dissolve Parliament." The Majority in this country no doubt, are waiting anxiously to hear the learned Constitutional experts of the UNF Government on their interpretation of Art. 70. After all we may have to depend on them to prepare a draft new Constitution if and when the UNP and LTTE reach an agreement. The negotiating circus thus far did not include a representative of the President despite the President being the Head of State and Head of Government and her written wish to include her representative in the negotiating team. Hence one has to apply the lable, UNP v LTTE negotiations. Be as it may violation of the Constitution - the Supreme Law of the land by any branch of Government is a most serious matter, affecting the liberty of the people. The President could be impeached for the international violation of the Constitution - Art. 38 (2). The same rule applies to the Heads of the other two branches - Parliament and Judiciary. Democracy, freedom and liberty are all at stake when any branch president parliament or judiciary usurp the power of the other branches. When JR successfully subjugated the Parliament's 4/5th majority using undemocratic licence the 4/5th majority in Parliament remained silent as in the legislatures of the Soviet Union Republics of bygone era. It is to the credit of the present President that some parliamentarians even dare to violate their own Constitution and Standing Orders of the House, which prohibits criticism of the President's conduct except on a substantive motion. One could only hope that there will be no miscarriage of justice for the sake of political expediency, when the Supreme Law is violated blatantly. One cannot expect Punchi Singho to observe the law, when Sergeant Perera violate the same law with impurity. |
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