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Wednesday, 31 December 2014 00:01 - - {{hitsCtrl.values.hits}}
In this he has pleaded to build a stable moral society in two stages. The first is the 100-day program to amend the Constitution to abolish the executive presidential system with unlimited powers and the second is to implement a six-year framework to establish a government that would be formed after the general election to be held after 100 days to build the ideal moral society in the country.
The urgent issue of the program is undertaking to amend the Constitution to abolish the existing all-powerful executive presidential system within 100 days.
Common aspiration
The general outlook to prune down this autocratic and excessive powers of executive presidency was the common aspiration of the major political parties since it was introduced in 1978; the only exception was the UNP, the progenitor of the system who took more than three decades to go through a metamorphosis to support the common aspiration to abolish the form executive presidential system that exists today or to limit the autocratic rule wielded in the executive presidency.
Though that was the virtual consensus amongst major political parties, certain uncertainties and reservations have been raised outrageously by the ruling party SLFP backed by the conventional ‘old left,’ the strange bedfellows in defence of the executive presidency!
However, lately the incumbent presidential candidate on 23 December 2014 has issued his election manifesto named ‘Mahinda Chinthana – Path to Win the World,’ an extension of the policies stated in the earlier manifestos, ‘Mahinda Chinthana’ and ‘Mahinda Chinthana – Idiri Dakma,’ indicating a Constitutional amendment within one year. This was a slap on the face of conventional left which has changed the original stance.
History recalls that it was the SLFP that launched a determined opposition to the “supremacy of the President over Parliament” ever since the executive presidential system was introduced in 1978 by J.R. Jayewardene and in all presidential and general elections the SLFP sought the people’s mandate to abolish the executive presidential system.
Holocaust of totalitarianism foreseen
The erstwhile leader of the LSSP Dr. N.M. Perera who represents the conventional left elite in early as in 1978 was so judicious to brand the 1978 Constitution as an “Idi Amin approach to democracy” (‘Socialist Nation’ 20 September 1978). Prof. A.J. Wilson in ‘The Gaullist System in Asia’ written in 1979 predicted the 1978 Constitution as ‘a harbinger of political authoritarianism’ and avowed inherent danger of this delicately poised system where ‘the whole framework hangs on the skill and ability of one person.
The above demonstrates the farsightedness of the then constitutional experts and political leaders. The holocaust of totalitarianism foreseen by them was on the exposition of the 1978 Constitution in its original form where ‘the president is elected for a six-year period and he cannot be elected for period of more than two terms’.
This limitation was “abortively “extended by the 18th Amendment in September 2010Recently the Supreme Court has given sanctity to it. As the famous saying goes, “Right is right, even if everyone is against it and wrong is wrong even if everyone is for it.”
All-powerful
The armoury powers vested in the president includes, among other things, him to be the head of the state, head of the government, head of executive, commander –in –chief of the armed forces (Art.30(1)), head of the cabinet, to dissolve the cabinet of ministers but nevertheless he could continue in office (Art.42), appoints the Prime Minister, determines the number of ministers in the cabinet, decides the subjects and functions to be assigned to ministers and assign to himself any subject or function, remove the Prime Minister, reshuffle or his cabinet without consultations with the prime minister (Art. 44), appoints ministers outside the cabinet from among members of parliament and to assign to them subjects and functions (Art.45).
In terms of Art 43 the ministers are collectively responsible and answerable to Parliament but the president is only responsible to Parliament. The Standing Orders of the House preclude any reference be made or conduct of the affairs of the President be criticised except on a substantive motion. The incumbent President is reported to have assigned to himself the highest number ministerial portfolios.
Prof. Wilson considered the 1987 Constitution is vice ice-regal in character and the members of cabinet are the executive president’s lieutenants, not colleagues or even primus inter pares. It is recorded that in France under General de Gaulle in the French Council of Minister ‘the rule was that nobody spoke unless asked to and nobody expressed an opinion opposed to that of the president’. The position has made worst by the subsequent amendments including the 18th Amendment to the Constitution.
Against the above backdrop Art.35 guarantees the president immune from any suit, civil or criminal, being instituted in any court or tribunal against him in respect of anything done or omitted to be done by him in his official or private capacity.
Amendment to the Constitution
As illustrated in the manifesto of the common candidate, obviously an amendment to the Constitution requires passage through Legislature. The President could give leadership to the amendment to the Constitution that could not be effected for the last 20 years. The legitimacy of expectation that such amendment would be acquiesced by the all the Members of Parliament including those in the majority ruling party (SLFP) that was always in principle opposed the system of executive presidency.
Even the incumbent President also expressed his desire to do an amendment to the Constitution within a period of one year, though the extent of his agreement with the common candidate on the matter is uncertain as no details were made known to public yet.
The policy statement enunciated by the common candidate has eliminated certain uncertainties in the minds of the people created by the adversaries particularly on the modalities of effecting proposed changes and legalities of doing things.
The common candidate’s manifesto declares that the proposed amendment to would be effected with a two-thirds majority in the Parliament. The Constitution states that an amendment or repeal and replacement of any of its provision will become law if it is passed with a two-thirds majority in the Parliament.
In contrast to conflicting positions proclaimed by observers that Parliamentary assent of a two-thirds majority plus approval by the people at a referendum would be required only for an amendment or repeal or replacement of certain identified provisions in the Constitution, the amendment or repeal and replacement of powers of the Executive President can therefore be effected only with a two-thirds majority in the Parliament.
Any amendment or repeal and replacement of the Constitutional provisions relating to the unitary character of the State, the National Flag, the National Anthem, the National Day, the foremost place given to Buddhism, freedom of thought, conscience and religion, freedom from torture are some for which the approval by the people at referendum in addition to a two-thirds majority in the Parliament are required.
Thus the constitutional structure to replace the autocratic executive presidential system with an executive accountable to the Parliament through the Cabinet is a possibility within the Constitution.
Our opposition to a constitutional form of government that bestows on an individual with excessive authority to make binding rules, directives, and decisions and applies them to circumstances and affairs of the State unhindered by legal checks and balances is that such system is dangerously poised as it is Constitutional since the authority to do so is derived from the Constitution and enforced through the institutional structures and prescribed laws.
(The writer is an Attorney-at-Law, LL.B.)
