Transfer of Executive Powers from President to PM: Six key clauses determined by SC to require refer
Friday, 10 April 2015 00:33
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Among other things the Supreme Court has determined that paragraphs 42(3), 43(1), 43(3), 44(2) , 44(3) and 44(5) in Clause 11 of the 19th Amendment require the approval of the people at a referendum in terms of the provisions of Article 83 of the Constitution.
Following are the relevant clauses
Clause 11
(i) 42(3) The Prime Minister shall be the head of the Cabinet of Ministers.
(ii) 43(1) The Prime Minister shall determine the number of Ministers of the Cabinet of Ministers, and the Ministries and the assignment of subjects and functions to such Ministers.
(iii) 43 (3) The Prime Minister may at any time change the assignment of subjects and functions and recommend to the President changes in the composition of the Cabinet of Ministers. Such changes shall not affect the continuity of the Cabinet of Ministers and the continuity of its responsibility to Parliament.
(iv) 44 (2} The Prime Minister shall determine the subjects and functions which are to be assigned to Ministers appointed under paragraph (1) of this Article, and the Ministries, if any, which are to be in charge of, such Ministers.
(v) 44 (3) The Prime Minister may at any time change any assignment made under paragraph (2)
(vi) 44(5) At the request of the Prime Minister, any Minister of the Cabinet of Ministers may by Notification published in the Gazette, delegate to any Minister who is not a member of the Cabinet of Ministers, any power or duty pertaining to any subject or function assigned to such Cabinet Minister, or any power or duty conferred or imposed on him or her by any written law, and it shall be lawful for such other Minister to exercise and perform any power or duty delegated notwithstanding anything to the contrary in the written law by which that power or duty is conferred or imposed on such Minister of the Cabinet of Ministers.
SC said the Clause 11 deals with “The Executive - The Cabinet of Ministers”. In the absence of any delegated authority from the President, if the Prime Minister seeks to exercise the powers referred to in the aforesaid Clause, then the Prime Minister would be exercising such powers which are reposed by the People to be exercised by the Executive, namely, the President and not by the Prime Minister. In reality, the Executive power would be exercised by the Prime Minister from below and does not in fact constitute a power coming from the above, from the President. In the words of Wanasundera, J. as stated in Re the Thirteenth Amendment to the Constitution at page 359 “If the Executive power of the People can be renounced in this manner, serious questions regarding the proper administration of the country could arise. At the bare minimum, legislation permitting such a renunciation must have the approval of the People at a Referendum. /I By virtue of the Executive power vested in the President, as guaranteed in Article 4(b) of the Constitution, certain rights flow to the citizens enabling them to enjoy those rights in its fullest measure, subject of course to permissible restrictions. The President cannot relinquish his Executive power and permit it to be exercised by another body or person without his express permission or delegated authority. As laid down by Sarath N. Silva, CJ . In Patrick Lowe and Sons Vs. Commercial Bank of Ceylon Ltd. (2001) 1 S.L.R. 280, “What is not permitted by the provisions of the enabling statute should be taken as forbidden and struck down by Court as being in excess of authority.” (emphasis added). Thus, permitting the Prime Minister to exercise Executive power in relation to the six paragraphs referred to above had to be struck down as being in excess of authority and violative of Article 3.
