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| Sunday, 28 November 2004 |
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Westminster parliamentary system protects minorities by Harindra J. Corea The President of Sri Lanka, in addition to the cornucopia of powers available could also 'legislate by referenda treating a hostile Parliament as an irritation to be ignored'.
If the opposition was not mouthing meaningless rhetoric to mislead the masses, the business community and the international community, it should have there and then called for the abolition of the executive presidency as it had agreed to upto early August 2000. Sweeping powers in addition to the powers and functions conferred by or assigned to him/her by the Constitution or by any written law, the President is empowered by Article 33(d) "to do all such acts and things not inconsistent with the provisions of the Constitution or written law as by international law, custom or usage he is required or authorised to do". It may also be observed that the power of the Sri Lankan President to dissolve the Legislature is not a power which even the US President enjoys and is calculated to make the Legislature more subservient to his wishes. fundamental allegations The fundamental allegations made by the Sirimavo Bandaranaike report touch on the legitimacy of the procedure adopted to bring into law the constitution itself and the failure to protect parliamentary sovereignty. The dissenting report stated that "Under the new proposals of the majority in the Select Committee, the location of Sovereignty in any particular person or body is impossible. Does Sovereignty reside in the President, or in the Parliament, or even in the Judiciary? None of these three organs of Government exercise Sovereign power. The maximum State power in terms of the new proposals is obviously in the hands of one individual, the President. Thus what the people have to decide is whether it is safer to vest Sovereignty in the hands of a large elected body like the National State Assembly than to vest it in the hands of one person, namely the President. As far as the Sri Lanka Freedom Party, are concerned we have no hesitation in preferring to vest Supreme Power in the hands of a large elected body like the National State Assembly rather than in the individual person of a President". Theme song The latter allegation was precisely the theme song of Ranil Wickremesinghe in his contradictory position on the powers of parliament in relation to Presidential Powers. In the arguments that raged across the floor of the House on both 2001, when he strove hard to dispute the use of several Presidential powers which he said were an infringement of Parliamentary sovereignty invoking the memories of Oliver Cromwell, and in November 2003. Ranil Wickremesinghe felt the sting of an omnipotent President. The dissenting report of Sirimavo Bandaranaike was principally against the removal of the supremacy of the legislature Presidency. The US constitution is replete with checks and balances. The supreme power given to the President is acknowledged by all today including Ranil Wickremesinghe and the UNP who are studying ways and means of abridging and restricting Presidential Powers. Sirimavo Bandaranaike in her report rightfully points out that in Britain parliament is the only state power that exercises power on behalf of the sovereign people and asks whether anyone can say that the British Constitution did not effectively guarantee sovereignty? A question posed by her in her dissenting report is timely today. She said what the people have to decide is whether it's safety to vest sovereignty in the hands of a large elected body..... than to vest it in the hands of one person, namely the President". Changes that were made to the 1972 Constitution by the 1978 Constitution must be reversed power must flow directly from the people to the leader of a Parliamentary majority elected by them, who must then become an executive Prime Minister as before 1978, and as it the position in Britain, India, Australia and other Commonwealth nations following the Westminster model. We must consider specific changes to the Constitution so that the Prime Minister in a new Constitution may at any time change the assignment of subjects and functions and recommend to the President changes in the Cabinet of Ministers. And upon such advice being given Article 96 (a) provides that he may be removed by a writing under the hand of the President. Under 1978 Constitution the power to remove a Minister vested in the President under Article 44 (1) Article 44 (3) must be given back to a Prime Minister elected by the people and approved by Parliament. In the 1972 and 1978 Constitutions there is also a noteworthy difference in regard to the power to dissolve the Legislature as far as the two Constitutions are concerned. Under the 1972 Constitution it was exercisable by the President under Article 99 (2) if the National State Assembly rejected the Appropriation Bill or if it passed a vote of no confidence in the Government or if the NSA rejected the Statement of Government Policy at any Session other than the first Session and the Prime Minister advises a dissolution or forty-eight hours have elapsed after these events have occurred without the President having received such advice. Under the 1978 Constitution on the other hand, the President may dissolve Parliament at any time after the lapse of one year after it was elected or request for dissolution made upon a resolution of Parliament (Article 70 (1) proviso. However the President shall dissolve Parliament if the Appropriation Bill is defeated on two successive occasions. (Article 70 (1) proviso (d) Parliament has no independent power to dissolve itself, although it can by its non co-operation and hostile action indirectly bring about that result. The above is a brief, which enforce the arguments made by the Sirimavo Bandaranaike dissenting report of 1978. It is necessary in order to clarify our minds about the need for the abolition of the executive presidency to reflect our minds by journeying through the labyrinth of the Presidential powers to understand the scope of those powers. The President of our Republic is under Article 30 Section '1' the Head of State. Head of the Executive and of the Government and "the Commander in Chief of the Armed Forces". Under Article 30 Section 2 the President holds office for a term of six years. The Constitution gives the President sole, absolute and discretionary powers in the exercise of the executive power and also what is the key to the Constitution, absolute discretion with regard to executive powers, which impinge on the sovereignty of Parliament. It is now clear these powers must now be amended. The Constitution having ordained a process for the election of an Executive President and a six-year term of office bends backwards to protect a President. The intent of the Constitution, with some safeguards, is to give the President every chance to carry out his/her mandate, given by the people, without undue interference from the legislature or Parliament. Amendments of these sections are needed. Political decision Stability of the executive presidential government, the principle intent of the 1978 Constitution, would be substituted with an elected executive Prime Minister answerable to the Parliament and the people after the executive presidency is abolished. It is now time for a political decision to be taken by a majority of the people's representatives to abolish the executive presidency. Already there is a majority in Parliament including the UNF for ending the P. R. system of elections and going to the German mixed system of direct elections as before 1978 for fifty per cent of the seats and the remainder through a district and a national P.R. system. As far as the abolition of the executive presidency is concerned, the apprehensions of some who consider themselves a communal minority and need "protection" they probably aware that even the UNP itself having rejected the abolition of the Presidency since they agreed to it as recently as August 2000, to accommodate the burning ambition of their leader to become president, are considering amputating some of the powers of the presidency. While it is thought by some members of some of the minority parties it is not necessarily so that a Presidential system is necessary to protect the minorities the fact that the UNP is itself considering amputating some of the powers of the Presidency. The minorities must remind themselves that before Chandrika Bandaranaike Kumaratunga was twice voted into power as Executive President winning a big share of the minority votes, presidential powers have been used against the interests of the minorities. The burning of the Jaffna library, the failure to protect the Tamil minorities in Colombo in 1983, the extra constitutional actions of the minority Tamil liberation movements against the Presidential constitution itself and the fact that the minorities represented by the above, want a new constitution federal or otherwise represents a vote of no confidence against the Presidential constitution of 1978 itself. Everybody in this nation recognised that peace and stability can be achieved only in a new Constitution. To be Continued |
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According to Professor Wilson, Parliament is a subsidiary body and
cannot impede the Presidency. This was not what the opposition said from
2001 to April 2004, when Parliamentary sovereignty was held aloft as a
banner to hit at the President's exercise of her legitimate powers.
