By Sumudu Chamara
The concept of the Executive Presidency, especially the powers afforded to an Executive President, has been one of the most controversial topics in Sri Lanka’s political arena, and comes up often during elections and Parliamentary debates. Even amidst the prevailing instability, abolition of the Executive Presidency remains an important topic, which some deem essential to the reformation of Sri Lanka’s political culture.
The Supreme Court (SC), last week, discussed the birth and the background that led to the introduction of the Executive Presidency. This was, when it declared that certain sections of the draft Bill of the 21st Amendment to the Constitution, presented by the Samagi Jana Balawegaya (SJB), are inconsistent with the Constitution, and therefore required to be passed through a referendum if the Bill is to be enacted.
The draft Bill, presented in May amidst both support and opposition from various parties, was challenged by several petitioners, naming Attorney General (AG) and MP and SJB General Secretary Ranjith Madduma Bandara as first and second respondents. The case was taken up before a SC Judge Bench comprising Chief Justice Jayantha Jayasuriya PC, Justice Janak de Silva, and Justice Arjuna Obeysekere.
Executive powers and constitutional reforms
In its judgement, the SC said that the main thrust of the submissions of the petitioners is that the Bill erodes the executive power of the elected President and as such violates Articles 3 and 4 of the Constitution, and hence may be enacted only upon approval by the people at a referendum. It added that the response of Suren Fernando (the second respondent’s counsel) was that the agency or the instrument for the exercise of the executive power of the people can be changed by amending Article 4 without being approved by the people at a referendum, provided such amendment has no prejudicial impact on the sovereignty of the people.
Adding that it is apposite to examine the introduction of the Executive Presidential system of the Government into Sri Lanka’s Constitutional framework and the core principles underlying such system, the judgement read: “The 1972 Constitution was based on a parliamentary system of government. In terms of Section 5 of the 1972 Constitution, the National State Assembly was the supreme instrument of State power of the Republic, and was to exercise the executive power of the people, including the defence of Sri Lanka, through the President and the Cabinet of Ministers. The Head of the State was the President, while the Prime Minister was the Head of both the government and the Cabinet of Ministers.
“The change from a Parliamentary system of government to a hybrid system of government consisting of an Executive President elected by the people and an elected Parliament was made by the Second Amendment to the 1972 Constitution. Nevertheless, we note that unlike the 1978 Constitution, the 1972 Constitution did not provide for a referendum and hence there was no question of seeking approval through a Referendum for the Second Amendment to the 1972 Constitution becoming law. However, the United National Party (UNP) manifesto placed before the people at the General Elections held in July 1977 sought a specific mandate to create an Executive President elected by the people.”
According to the judgement – which quoted Vision and Reality: The 1978 Constitution of Sri Lanka by Priyanee Wijesekera and Naufel Abdul-Rahman (2014) – the relevant portion reads:
“We seek your mandate to draft, adopt, and operate a new Republican Constitution in order to achieve the goals of a democratic socialist society. We shall include in the Constitution the Basic Principles accepted by the 1975 Party Sessions with reference to religion and language and among them being the guaranteeing to the people their fundamental rights, privileges, and freedoms; re-establishing the independence of the press and the judiciary; and freeing it from political control and interference. We will ensure in the Constitution that every citizen, whether he belongs to a majority or minority, racial, religious or caste group, enjoys equal and basic human rights and opportunities. The decisions of an All-Party Conference, which will be summoned to consider the problem of non-Sinhala speaking people, will be included in the Constitution.
“Executive power will be vested in a President elected from time to time by the people. This will ensure stability of the executive for a period of years between elections. The Constitution will also preserve the parliamentary system we are used to, for the Prime Minister will be chosen by the President from the party that commands the majority in Parliament and other Ministers of the Cabinet will also be elected Members of Parliament.”
The SC judgement further said that although people had given the mandate to introduce the hybrid system of government by voting the UNP to power at the General Election held in 1977, if the Constitution adopted thereafter specifically requires the people to approve a constitutional amendment to change such hybrid system at a referendum if such amendments are to become law, mere mandate obtained through the manifesto prior to the adoption of such Constitution cannot override the requirement of the approval at a referendum stipulated by such Constitution itself.
It explained: “The Second Amendment to the 1972 Constitution was referred to the Constitutional Court on 14 September 1977 in terms of Section 55(2) of the 1972 Constitution with an endorsement under Section 55(1) by the Cabinet of Ministers that in its view it was urgent in the national interest. Since the Bill was for the amendment of the Constitution, the Constitutional Court held in the Second Amendment to the Constitution Bill (Decisions of the Constitutional Court of Sri Lanka, Vol. 5 page 8) that it cannot be certified by the Speaker under Section 49 of the Constitution without it being passed by a two-thirds at least of the whole number of members of the National State Assembly (including those not present) voting in its favour.
“It was passed with the required votes and was certified on 20 October 1977 but came into force on 4 February 1978. The Second Amendment to the 1972 Constitution brought about a fundamental change by mandating that the “executive power of the people, including the defence of Sri Lanka, shall be exercised by the President”.
The resultant position was that the President became the Head of the State, Head of the Executive, Head of the Government, and Commander-in-Chief of the Armed Forces, and with the National State Assembly, became the “supreme instruments of State power of the Republic”.
The SC judgement also stated that the Report of the Select Committee of the National State Assembly appointed to consider the Revision of the Constitution leading to the enactment of the 1978 Constitution provided a draft Constitution containing a statement of the principles which should govern the revision of the Constitution. It further noted that the report stated that the Draft Constitution incorporates the principles of the Executive Presidential system created by the Second Amendment, and makes necessary ancillary and consequential provisions.
Adding that the 1978 Constitution was certified into law on 31 August 197 and that Article 171 repealed the 1972 Constitution, the judgement further said: “Upon an examination of Article 4(b) of the 1978 Constitution, it is observed that the words “of the Republic elected by the People” has been added to the original formulation in the 1972 Constitution. This brought about the nexus between the mandate received by the UNP at the General Elections in 1977, creation of an elected Executive President by the Second Amendment to the 1972 Constitution and the retention of an elected Executive President in the 1978 Constitution.
“In the 17th Amendment to the Constitution (Decisions of the Supreme Court on Parliamentary Bills (1991-2003) Vol. VII, page 213 at 218), it was held that “it would indeed be illogical to contend that the Amendment which was introduced only with a special majority without submission to a Referendum could be repealed only if it is submitted to a Referendum”.
The SC stated that the above statement, made by the court in its determination on the 17th Amendment to the Constitution (Supra.), was considered and analysed by the SC in its determination on the 20th Amendment to the Constitution Bill (2020) (Supra), and that in the said determination (Supra), it was held:
“In this context it is pertinent to note that the 1978 Constitution was enacted after repealing the 1972 Constitution. The 1972 Constitution did not contain any provision requiring the approval of the people at a referendum, when passing a Bill, if they were inconsistent with any provisions in the Constitution. Therefore, the fact that certain provisions existed in the 1978 Constitution per se cannot negate the effect of Article 83 of the Constitution.
“As correctly submitted by the AG when considering the Constitutionality of a Bill in the context of Article 83, what should be considered is the provisions in the Constitution as at the time the Bill is proposed to be submitted and the impact the Bill would have on those provisions. It is also pertinent to observe that Article 80(3) of the Constitution precludes any Court making any determination on the validity of a law, after the President’s or Speaker’s Certificate is endorsed on the Bill.
“Therefore, the object and purpose and the effect of the Bill namely that restoration of status quo ante 19th Amendment per se does not take away the jurisdiction of the Court to examine whether any of the Clauses in the Bill attract Article 83 of the Constitution.”
Accordingly, the SC Judge Bench said that it is not inclined to accept the submission that a change to the Executive Presidential system of government does not require a referendum as it was created without a referendum.
J.R. and the Executive Presidency
It added: “The report of the Select Committee of the National State Assembly appointed to consider the Revision of the Constitution goes on to state that the reasons for the introduction of the Executive Presidential system were fully explained at the time the Second Amendment was introduced. This may well be a reference to the speech made by then-Prime Minister J.R. Jayawardene in the National State Assembly at the Second Reading of the Second Amendment to the 1972 Constitution on 23 September 1977 where he sought to explain the rationale for the creation of an Executive President.”
The judgement quoted Parliamentary Debates (from the Hansard) which included Jayawardene’s statement in this regard: “In moving the second reading, I wish to explain to Members in detail the provisions of this amending Bill. We are not changing the Parliamentary system as it exists under the Republican Constitution, but a fundamental change is being made with regard to who should be the Head of the Executive.
“One could say that this amendment would make our Constitution a combination of the Presidential system and the Parliamentary system as we know it in the UK. Under the Republican Constitution, the Head of the Executive is the President, but he has to act on the advice of the Prime Minister. I will cite those sections later. Under the amending provisions, the Head of the Executive will be the President but he will also be the Head of the Cabinet of Ministers and the Chief Executive acting on his own advice and not on the advice of the Prime Minister. He will therefore be the Head of the State and the Head of the Executive.
“This change has been advocated by me for almost ten years, long before the UNP won the last election, because I felt that in a developing country, the Executive should be stable and not dependent on the whims and fancies of the House, as happened in the 1960 short Parliament, when within a few months we had to have another General Election, as happened in December 1964 when the Government of Sirimavo Bandaranaike was defeated by one vote, though they had about one and a half years more to go.
“Under the reformed Constitution, the President, we are suggesting, should be in office for a period of six years but not simultaneously with the House because his election may be independent of elections to the House. He will not change with any change in the composition of the House; he will continue for that period of six years and he will be elected by the whole country, not as now nominated by the Prime Minister.
“The sovereignty of the people, as I said, functions in various ways, certainly by the multi-party system of the elections that we have in this country. The sovereignty is divided into three aspects. There is the Executive, the Legislature, and the Judiciary. I will not go into the constitutions of the world, but under our Republican Constitution, the National State Assembly is the repository of the people’s sovereignty. Twelve million people cannot sit in the National State Assembly and discuss affairs of the State.
“By the elections, they vested all their power in the National State Assembly, and the National State Assembly vested its executive power in the Prime Minister and the Cabinet, kept to itself the legislative power and exercised the judicial power in the Constitution through courts created by the Constitution and by law. That is how the National State Assembly functioned as the repository of the sovereignty of the people, elected by the people from time to time, subject to the people and responsible to the people.
“The Executive depended on a majority in this House. The Prime Minister is chosen from the party that enjoys the confidence of the House, and the Ministers are chosen from Members in the House. If the majority in the House votes against the Prime Minister and the Cabinet, then the Executive ceases to exist. One can choose another Executive from the same House or go before the people.
“That is what I am trying to avoid by the Amendment, so that the Executive need not depend on the votes in the House though the Prime Minister and the Cabinet may have to go and the President may have to find another Prime Minister and another Cabinet. Let us take the example of 1964 when Bandaranaike’s Government was defeated by one vote. If that happens now, after this amendment, the Cabinet and the Prime Minister will have to go, but the President will continue, the Executive will continue. That is the difference that we are making.
“So, firstly, take the question of the elected President. Do you want such a President or not and an elected Executive? We feel very strongly that the Executive should be elected by the People and not selected by the House, because firstly, there will be stability; secondly, the whole country can express its view as to the Executive which they do not do now. They merely elect Members for each electorate; of course, they may vote for a party, but they elect members for each electorate.
“That is also retained in the Amendment. Though you have the Executive, that is the President, chosen by the people and irremovable, and though he may have an opposing party in the House, the Prime Minister and the Cabinet are accountable to the House. You can change them at pleasure, you can turn them out. The President, as today, may order a dissolution, and have a new Parliament, or he may reshuffle the Cabinet, but they must be from Members of this House. That is what is important.
“They must be legislators and they must enjoy the confidence of the House as they do today. But the President, aloof from all this, is only subject to the People, and once in so many years he must go to the People; he is not subject to the whims and fancies of this House as President but as Head of the Cabinet he must govern with the Cabinet and the Prime Minister responsible to the House and having the confidence of the House.
“That is the Amendment, the new departure we are making from the extant Constitution, from the Constitution of the UK, from the Constitution of the US, even from the Constitution of France, because under the French Constitution the Ministers are not chosen from the legislature but from outside. We say they must be from the legislature because I personally believe that a Minister being in the House, subject to Question time, subject to Adjournment time, subject to control of the House, is one of the essential features of the House being representative of the sovereignty of the people.
“Of course, in America it has developed in a different way over a period of 150 years, and though Ministers are chosen from outside they are subject to examination by various Standing Committees, by Congressional Committees. But we prefer the House here, as a whole. I am a great believer in this House as an institution, and I want this House to continue with all its strength and power, restrained only by its own decisions. So we are not touching that. There is nothing in our amendments that touches the powers and functions of the House. You will see from the amendments that what I have said pertains to the functions we want this House to perform.”
Abolition or reducing the powers of the Executive Presidency is demanded by many, including those protesting at various parts of the country, and it is viewed as one of the most essential elements of a constitutional reform. Hence, many expect it to be part of the ongoing constitutional reform process, i.e. the 21st Amendment. However, in a context where the progress made through the 19th Amendment concerning reducing the President’s powers was considerably reversed by the subsequent constitutional amendment, it remains to be seen what changes those who rule the country will bring, and most importantly, whether the Executive Presidency will be abolished or retained in future.