With the government playing with the idea of repealing the 19th amendment to the Constitution, legal experts claim that when considering this piece of legislation with its many draw backs, it should be repealed.
Speaking to Sunday Observer President’s Counsel Manohara de Silva said that although there may be a few acceptable changes in the 19th amendment, major portions of it when taken as a whole is a badly drafted piece of legislation and that therefore it should be replaced with something else.
Pointing out such shortcomings he went on to draw attention to the fact- making it impossible for the President to dissolve parliament until the lapse of four and half years.
“One such thing is what happened last year is a good example if the government cannot be run let’s say when it’s a hung parliament there is no proper government that can be formed, what happens is in Sri Lanka we find ethnic based political parties that have not the interest of the Nation but interest of particular small communities, who will hold the country to ransom and dictate terms. Especially when there is a hung parliament and the country cannot be run when none of the major political parties have a majority and there is obstruction to development and there is also obstruction to legislation being passed, then the President should have the power to dissolve parliament,” he said.
Referring to the government before the presidential election he said that due to the difference of opinion between the president and the Prime minister the country faced a chaotic situation.
The interpretation of the 19th amendment by the Supreme Court meant that even if the budget is defeated even if the statement of government policy is defeated, you can still invite another Prime Minister to form a government but not dissolve parliament until four and half years lapses.
“This is a very pathetic situation created by the 19th amendment. No president is going to just dissolve parliament unless there is a situation where the country cannot move forward,” PC de Silva said.
Another drawback of the 19th amendment that he referred to was on the Constitutional Council and the mechanism in place to select its members.
“Out of the 10 members 5 are appointed by the Prime Minister and the leader of the opposition. Now we have a situation today Pujitha Jayasundara is in prison. The IGP of the country is in prison, we cannot remove him and appoint someone else. It’s very unhealthy for the country,” he said.
Arguing that the authors of the 19 amendment has failed to grapple with every aspect of removing presidential powers he said although the general idea is that the president cannot hold ministerial portfolios it is not the case since article 4B of the Constitution still exists.
“In my view even as it exists today the president can certainly hold ministerial portfolios. For the reason that under article 4B of the Constitution the entire executive power of the people is vested in the President. When the 19th amendment was interpreted Justice Shripavan said whoever who exercises executive power in this country must have a nexus to the president,” De Silva PC said.
Because article 4B says executive power is totally and exclusively vested with the president that power remains with the president.
The ‘72 situation was different, article 5 of it which is similar to article 4 today says executive power is with the President and the Cabinet of ministers. There is a big difference between the 1972 constitution and the ‘78 constitution. 1978 Constitution gave executive power to the cabinet. But the ‘78 constitution does not give executive powers to the cabinet.
Prior to the amendment there was a clause earlier which says that whatever power that is not given to the ministers will remain with the President. According to the senior counsel this was foolish.
“If the president cannot exercise this power or not give it to another then who exercises this power?” he questioned.
His argument also extended to say that there is no impediment to the President holding the defence ministry.
“4B specifically says executive power of the people including defence can be exercised by the President. Its nonsensical to say that he can exercise the powers of defense but hes not in charge of the Ministry of defence. The 19th amendment says that the Prime Minister should advise the president how does the prime minister get the power ? Because the President gives the power to the PM,” he said.
However, Dr Nihal Jayawickrema, a Constitutional expert, is of the view that the president cannot hold the defence ministry portfolio.
“The Constitution specifically says that Ministers, cabinet non cabinet or otherwise must be appointed amongst the Members of the Parliament. Earlier it was not the case. It allowed the president to retain certain ministries, and even ministries that were not delegated remained with the President,” he said.
Dr Jayawickrema speaking to the Sunday Observer went on to explain that defence of the republic is a completely different thing and said that the two roles are completely different.
“That is to mean that if there is a war or some foreign attack this power is vested with the President. The Minister has to appear in parliament and answer questions. Whenever some
one needs to question the administration of defence Minister has to appear and answer,” he said.
The concept of a state minister is new and it’s not even in the constitution. The state minister under the constitution could only perform those functions which are delegated to him by the Minister. By order published in the gazette. So there has to be a minister. Even the Secretary functions subject to the direction and control of the minister not the state minister or the deputy minister, this further stressing the need to appoint a minister.
“Commander in chief is different. The queen is a commander in Chief president Gopallawa was a commander in chief and that is because in Constitutional law a head of state in a democratic country is also designated as commander in chief to ensure civilian control of the military,” he said.
Manohara de Silva (PC) also highlight that the People elect a president to exercise power. There must be a leader that has power, whoever who is running this country must have power.
“We spend millions of rupees to hold a presidential election and then bring legislation to curtail his authority. He cannot appoint Ministers without the advice of the Prime Minister. Entire nation votes for the President the Prime Minister is voted only by a selected electorate and he decides who the ministers are,” he said.