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By V. Jayanth
SRI LANKA'S Executive Presidency, bequeathed to the island nation by the late J.R. Jayewardene through the 1978 Constitution, has once again come into sharp focus with the latest political crisis in the country. Riding on the back of a brute majority in Parliament, then Prime Minister Jayewardene amended the Republican Constitution of 1972 and introduced an Executive Presidency in Sri Lanka, concentrating all powers in the elected Head of State and Government a legacy that remains.
Even 12 years before that controversial constitution was adopted, Jayewardene had, in a 1966 speech to the Ceylon Association for the Advancement of Science, spelt out his vision for stability and economic progress in Sri Lanka. He said: "If the system of democratic government has failed in some aspects, we should not hesitate to think of changes and amendments in that system where necessary."
Advocating a presidential system on the U.S. or French model where "the Executive is chosen directly by the people and is not dependent on the legislature during the period of its existence, for a specified number of years," he noted, "Such an executive is a strong executive, seated in power for a fixed number of years, not subject to the whims and fancies of an elected legislature; not afraid to take correct but unpopular decisions because of censure from its parliamentary party. This seems to me a very necessary requirement in a developing country faced with grave problems such as we are faced with today."
When in 1971-72, the House of Representatives, under a Sri Lanka Freedom Party-led coalition Government, sat as a Constituent Assembly to draft a new Republican Constitution to replace the Soulbury Constitution introduced in 1946-48, Jayewardene moved an amendment on July 2, 1971, to state "The Executive power of the State shall be vested in the President of the Republic, who shall exercise it in accordance with the provisions of the Constitution..." But that was rejected.
When the country emerged from a dark period of emergency and recession in 1977 for another general election, Jayewardene as leader of the United National Party (UNP) made the Executive Presidency a key issue in the election manifesto.
The UNP said: "Executive power will be vested in a President elected from time to time by the people... The constitution will also preserve the parliamentary system we are used to but the Prime Minister will be chosen by the President from the party that commands a majority in Parliament and the Ministers of the cabinet will be elected Members of Parliament."
After winning the election, Jayewardene moved with lighting speed to effect the radical reforms to the Constitution. He set up a small legal team to draft the Constitution. In September-October 1977, the National State Assembly adopted a constitutional amendment establishing a presidential system of government. This was done within two months of the general election and on October 20, the Assembly adopted a resolution empowering the Speaker to appoint a Select Committee and Chairman to consider revision of the Constitution. On February 4, 1978, Jayewardene was sworn in the country's first Executive President and before long a new Constitution was in place, through what the then Opposition considered were backdoor means through a Select Committee.
The 1972 Constitution was designed as a departure from the Westminster model formulated for the island in 1946-48. But the 1978 Constitution was a mix of some of Sri Lanka's previous constitutions and features of the American, French and British systems of government. Writing on the new Constitution, commentator A.J. Wilson said: "There is little doubt that the framers of the constitution had in view the example of the Fifth French Republic when they planned on the powers and position of the elected President... What Jayewardene was after was a stable Executive, which would not be easily swayed by pressures from within the legislature or outside. The outcome in the end was a President who in many ways can, in certain circumstances, be more powerful than his French counterparts."
The striking feature is that the President is a fixed executive, not removable while in office, except for specific reasons outlined in the Constitution, and not dependent on any majority in Parliament. Speaking at a University of Sri Lanka convocation in May 1978, Jayewardene said: "I am the first elected Executive President, Head of the State, Head of the Government. It is an office of power and thus of responsibility. Since many others will succeed me, I wish, during my term of office, to create precedents that are worthy of following. First, I will always act through the cabinet and parliament, preserving the parliamentary system as it existed, without diminution of their powers."
The Constitution, as it stands today, has a separate chapter on `The Executive' The President of the Republic. Article 30 (1) states: "There shall be a President of the Republic of Sri Lanka, who is the Head of the State, the Head of the Executive and of the Government, and the Commander-in-Chief of the Armed Forces." The President shall be elected by the people and shall hold office for a term of six years.
Article 31 (2) stipulates: "No person who has been twice elected to the office of President by the People shall be qualified thereafter to be elected to such office by the People." The office of the President shall become vacant (a) upon his death; (b) if he resigns his office by a writing under his hand to the Speaker; (c) if he ceases to be a citizen of Sri Lanka; (d) if the person elected as President wilfully fails to assume office within one month from the date of commencement of his term of office; (e) if he is removed from office as provided in the next succeeding paragraph or; (f) If the Supreme Court in the exercise of its powers under Article 130 (a) determines that his election as President was void and does not determine that any other person was duly elected as President.
Article 38 (2) also provides: "Any member of Parliament may, by a writing addressed to the Speaker, give notice of a resolution alleging that the President is permanently incapable of discharging the functions of his office by reason of mental or physical infirmity or that the President has been guilty of: (i) intentional violation of the Constitution; (ii) treason; (iii) bribery; (iv) misconduct or corruption involving the abuse of the powers of his office; or (v) any offence under any law, involving moral turpitude, and setting out full particulars of the allegation or allegations made and seeking an inquiry and report thereon by the Supreme Court."
The Constitution also lays down that no notice of such resolution shall be entertained by the Speaker or placed on the Order Paper of Parliament unless it complies with the provisions of Article 38(2) (a) and (i) such notice of resolution is signed by not less than two-thirds of the whole number of Members of Parliament, or (ii) such notice of resolution is signed by not less than one-half of the whole number of Members of Parliament and the Speaker is satisfied that such allegation or allegations merit inquiry and report by the Supreme Court.
Article 38 (c) goes on to state: "Where such resolution is passed by not less than two-thirds of the whole number of members (including those not present) voting in its favour, the allegation or allegations contained in such resolution shall be referred by the Speaker to the Supreme Court for inquiry and report."
That is why the Chief Justice and the Supreme Court become central in the whole question of impeachment of the President or his or her removal from office. And in the current controversy in Sri Lanka over the precipitate action of the President, Chandrika Kumaratunga, the information she had was that there was a collection of signatures to initiate impeachment proceedings against the Chief Justice of the Supreme Court even as he was about to deliver a significant judgment on the President's powers as Commander-in-Chief of the Armed Forces. This, it was felt, could be followed by another motion to impeach the President herself. Once that process is initiated, she cannot prorogue or dissolve Parliament.
And that is the next issue. Having prorogued Parliament for two weeks, Ms. Kumaratunga will now have to decide about convening the House or dissolving it. The Constitution has placed a restriction that the President shall not dissolve Parliament until the expiration of a period of one year from the date of such General Election, unless Parliament by resolution requests the President to dissolve it.
Since this Parliament is unlikely to adopt such a resolution, Ms. Kumaratunga may go in for dissolution and fresh elections, unless her People's Alliance is able to muster a majority in the House, by engineering defections.
The irony of the unfolding drama in the island is that when Mr. Kumaratunga won her first election as President in 1994, she vowed to bring in a new Constitution and scrap the Executive Presidency. But that did not happen. Any elected Head of State and Government will only find it convenient to remain the Executive President with all the powers and no threat from Parliament.
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