The powers & functions of the President are set out in the Constitution,& the sole power to make amendments to the Constitution lies with Parliament!!

Powers and Limitations of the Executive Presidency
........................by Ruana Rajepakse

The powers of the office of Executive President of Sri Lanka far exceed its limitations. Nevertheless, the office is not without some limitations which appear to be getting overlooked in the current debate.

It has been reported that the United National Party/Front has sought a pledge from the prospective "common candidate of the Opposition" to abolish the Executive Presidency within a stipulated period of being elected to that office. Twice before, when Presidents Chandrika Bandaranaike Kumaratunga and Mahinda Rajapaksa were facing their respective first elections to the office of President, some political parties extracted similar pledges from them which were duly given but not carried out.

The simple fact is that the executive President has no power to abolish or even to legally modify that office. The powers and functions of the President are set out in the Constitution, and the sole power to make amendments to the Constitution lies with Parliament, subject only to the additional requirement of a referendum in respect of certain clauses. Thus those who seek to curtail the powers of the executive presidency should concentrate their energies on building up a consensus to that effect among their fellow Parliamentarians rather then extracting empty promises from the presidential candidates.

If a law is passed by a sufficient majority of parliamentarians (two-thirds of the House if it is a constitutional amendment) and certified by the Speaker of Parliament as having been duly passed, there is nothing the President can do about it. Unlike his US counterpart, the Sri Lankan President has no power to veto legislation. (In America the Congress can, however, overrule the Presidential veto by a two-thirds majority.)

Yet in actual fact, it is practically unheard of, for MPs of the President’s party to vote against his or her wishes. This de facto power of the President over his or her party members arises from two factors: Firstly, a range of governmental powers and functions allocated to the Sri Lankan Presidency that confer on the Executive arm of Government a preponderance over the Legislature; and secondly the proportional voting system that has severed the lifeline connecting the MP with his electorate, and made an MP or prospective candidate for election totally dependent on the goodwill of the party leader and party hierarchy.

The factors that ensure the predominance of the President under the present constitutional scheme may be summarized as follows: While the majority of Ministers are appointed from Parliament, the President who is not a Member of Parliament, is nevertheless the Head of the Cabinet and may assign to himself any portfolio or portfolios as he chooses. Thus, in an extreme case, the President could effectively take the government outside the supervision of Parliament.

While the President is required to appoint as Prime Minister the person who, in his opinion, is most likely to command the confidence of Parliament, the Sri Lankan Prime Minister, unlike his French counterpart, enjoys no particular primacy. He is not the head of the Cabinet, and the only concession to his office appears to be the provision that the President ‘may’ consult him in the appointment of Ministers, and ‘may’ appoint him to exercise, perform and discharge the powers, duties and functions of the President if the latter is ill, abroad or otherwise unable to do so. However, more than one President has gone on overseas visits without making such appointment.

It will be seen that this system has created many anomalies that are hard to justify in terms of principle. Although Article 42 notionally proclaims the responsibility of the President to Parliament ‘for the due exercise, performance and discharge of his powers, duties and functions’, it is hard to see how this could be enforced in practice, short of the extreme step of impeaching him. In matters of day to day governance the President is not in fact answerable to Parliament even for the conduct of his ministerial functions, and the public has often witnessed the anomalous situation of key subjects such as defense and finance being answered for in Parliament only by a Deputy Minister.

Meanwhile the constitutional power given to the President to appoint Cabinet Ministers, Ministers of non-Cabinet rank and Deputy Ministers (without any limit on their numbers) has given ample scope for patronage, enabling a President to cast his net far and wide to secure support in the legislature. Incidentally this is a situation that was prophetically foreseen by constitutional analyst Dr. A. J. Wilson who analyzed the Constitution in 1980 when there were 27 Cabinet Ministers, 24 District Ministers and 27 Deputy Ministers.

It is all these features that have made Sri Lanka’s Presidency more powerful and more political than under the French or American Constitutions. The power of patronage that the President enjoys over members of Parliament weighs heavily against a spirit of independence on the part of the legislature.

Nearly two and a half years have passed since the Select Committee of Parliament on Electoral Reforms, chaired by Minister Dinesh Gunawardena, presented a report to Parliament recommending changes in the voting system to allow for the majority of MPs to be directly elected by the voters. Their proposal was to have 140 constituency MPs, i.e Members elected from demarcated territorial constituencies (electorates) throughout the Island on a first past the post system. This system was to be supplemented by 70 other MPs elected on a district proportional representation, after removing the votes polled by the 140 constituency MPs.

Thus the system was to be a mixed system with two-thirds of the MPs being directly elected and the remainder of the Parliamentary seats being given to what could roughly be termed the best losers. This latter measure was introduced expressly to ensure that significant ethnic minorities within a polling district would not go unrepresented. Thus it was intended to serve the same purpose as the multi-member constituencies of old.

Under these proposed amendments, there would be no "manape" or preference vote, and candidates of the same party would not compete against each other.

According to the published Report of this Select Committee, 21 out of the 32 members of the Select Committee had signed the Report at the time of its publication in June 2007. They comprised the Chairman Dinesh Gunawardena, P. Dayaratna, Nimal Siripala De Silva, W. D. J. Senewiratne, Dr. Sarath Amunugama, Douglas Devananda, Susil Premajayantha, Karu Jayasuriya, Mahinda Samarasinghe, Milinda Moragoda, Janaka Bandara Tennekoon, Prof. Tissa Vitarana, D. E. W. Gunasekera, Prof. Wiswa Warnapala, Dullas Alahaperuma, Mano Wijeratne, Ameer Ali, Cegu Isadeen, Mahinda Amaraweera, Wijeyadasa Rajapakshe and Ven. Athureliye Rathana Thero.

The Select Committee members who had not signed by the time the report was published comprised Rauff Hakeem, P. Chandrasekeran, Muthu Sivalingam, Joseph Michael Perera, John Amaratunga, Vijitha Herath, Anura Dissanayake, Bimal Ratnayake, Rajavarothiam Sampanthan and Mavai S. Senathirajah.

A system where the elected representative is ultimately answerable to his voters automatically reduces the power of the party leader. This is because the failure by the party to give nomination to a popular candidate could result in the sacked candidate coming forward as an independent and winning a seat.

Another feature that has strengthened the hand of the party leader is the introduction of the "National List" and its subsequent flagrant abuse. Introduced by the Fourteenth Amendment that also brought in the "manape", this provision allows for 29 seats in Parliament to be reserved to be filled by each recognized political party or independent group in proportion to the number of votes obtained by each such party or group nationwide.

Prior to a general election each such party or group is required to submit a list of 29 persons qualified to be elected as Members of Parliament. However when actually making the nominations after the poll, the party or group secretary is entitled to nominate persons whose names appear either in this list or in any nomination paper submitted in respect of any electoral district. It is by this provision that defeated candidates are brought into Parliament instead of the more illustrious names that are published in the ‘national list’ prior to the poll. Today even persons whose names did not appear on any list have been brought into Parliament ostensibly under this provision.

As the filling of all the seats in Parliament is in any event done on a proportional basis, it is difficult to see the need for this provision. In any event it now serves as a "carte blanche" for political parties to bring into Parliament practically anyone of their choice. This provision too has served to strengthen the hands of party leaders as against the electorate, and this includes the President as leader of the ruling party.



www island.lk