Photo courtesy Maithripala Sirisena website

The Maithripala Sirisena manifesto promised to implement a programme to stabilise the country in two stages, and the first of those stages is the Hundred Day programme which would be devoted to solving urgent issues.

Among those matters that were signposted for reform during the first stage is the abolition of the executive presidential system with unlimited powers and replacing it with a new constitutional structure including an executive that would be ‘allied with the Parliament through the Cabinet instead of the present autocratic Executive Presidential System.’ He promised, also, to introduce an apolitical merit system to secure the impartial functioning of the Public Service. The abolition of the Eighteenth Amendment and bringing back the independent commissions to secure the impartiality of public institutions is to be a central plank of the programme.

While the draft proposals go a long way to implementing these promises, they fall short of the promise to abolish the executive presidency altogether. The President will remain the Head of the State and of the Executive but not of the Government. There is no doubt that, under the draft, his powers have been diminished because he is no longer the head of the government and, more significantly, he shall always act on the Prime Minister’s advice, except when it comes to ‘the appointment of the Prime Minister or as otherwise required by the Constitution’ [Art 33A (2)].

The President is the Commander in Chief of the Armed Forces. It is provided in the draft Article 61E (1) that the President shall appoint the heads of the Army, Navy and the Air Force but, unlike in the case of the Attorney General and the IGP, his appointments are not made subject to the approval of the Constitutional Council; there is no requirement that he shall make these appointments on the Prime Minister’s advice. It is an important power in the President’s armoury.

The President is required to appoint as Prime Minister the Member of Parliament ‘who, in the President’s opinion, is most likely to command the confidence of Parliament’ [Art 42(4)]. It is in the appointment of a Prime Minister that a President in office is likely to enjoy the most discretion. The absence of established conventions would leave the President with much room to manoeuvre if parliamentary elections do not produce a party with a clear majority to form a government on its own.

The President may also appoint a Deputy Prime Minister on the advice of the Prime Minister. The Constitution does not specify that there shall be an office of a Deputy Prime Minister. If the Prime Minister does not advise the appointment of a Deputy Prime Minister, then the question of anyone being appointed does not arise, which means that it is left to the Prime Minister to decide whether he wants to have a deputy. It is not clear, though, if the President can refuse to appoint a Deputy Prime Minister; according to the draft he ‘may also appoint a Deputy Prime Minister’ albeit on the advice of the Prime Minister.

The duration of the President’s term has been reduced from six years to five and he shall serve no more than two terms in office. The limitation on a person serving more than two terms takes into account the controversy that arose when Mahinda Rajapakse sought a third term with the aid of the Eighteenth Amendment. The Nineteenth Amendment seeks to eliminate the advantage that an incumbent generally enjoys when it comes to re-election, especially with the resources of the state and powers of patronage which he is able to utilise. It also recognises the importance of bringing about peaceful change through elections. As Mark Twain said: ‘Politicians and diapers must be changed often, and for the same reason’.

The 1978 version of the Constitution prescribed that a presidential election shall be held not less than one month and not more than two months before the expiration of office of the President in office. The Third Amendment permitted the incumbent President to call for a poll after the expiry of four years from the commencement of his first term; and the Eighteenth Amendment permitted an incumbent President to exercise the power to call for an early election to seek further terms, having completed two terms.

Given the altered nature of the office, it should not be necessary for an incumbent President to call for an early election. The rationale for giving an incumbent President the discretion to call for an early election without having to serve his full term in office is to enable him to seek a fresh mandate from the people. A President who is required to act on the Prime Minister’s advice needs no mandate of his own and he should be required to serve his full term. His mandate, if there is one, may be discovered from Article 6 of the draft, where his duties are specified as including, for example, his duty to ensure that the Constitution is respected and upheld by all organs of Government; there is no need for him to seek a mandate from the people to allow him to discharge this duty. The formulation of government policy would be the responsibility of the Prime Minister and his cabinet.

The immunity that the President enjoys under the current Constitution has been subject to constant criticism. Therefore, it is unfortunate that this immunity is retained in the draft, albeit in a mildly diluted form.

Several comments are in order in relation to this immunity. First, this immunity may be justified only if the Constitution were to provide for a Gopallawa-type presidency but the draft constitution does not envisage a Gopallawa-type presidency, as has been confirmed by Dr Jayampathy Wickramaratne. A President who will continue to be directly elected by the people is unlikely to be totally toothless and there is bound to be some space in the constitution for presidential powers to be abused, especially when anything done by him both in his official and personal capacity cannot be challenged in a court of law, either in civil or criminal proceedings.

The only exception to immunity provided for in the draft is an application under Article 126 in respect of anything done in the President’s official capacity. The remedy under Article 126 is notoriously limited and ineffective to act as a check against presidential abuse. The Article 126 remedy is available only to determine an infringement or imminent infringement by executive or administrative action of any fundamental right or language right declared in the Constitution. Moreover, proceedings under this article must be brought within a month of the alleged action.

Second, there is no basis for clothing the President with immunity in respect of his private acts. A president should be treated like any other person in relation to his private affairs. Election to the highest office in the land is no reason for making a President immune from legal process.

It was Justice Sharvananda who articulated the rationale for granting immunity to the President. In Visuwalingam v. Liyanage (1983), Justice Sharvananda held that the Constitution provided only for the personal immunity of the President during his tenure of office from proceedings in any Court in that he cannot be summoned to Court to justify his actions, but that is not the same thing as saying that his acts cannot be examined by a court of law. Later, in Mallikarachchi v Shiva Pasupathy (1985), the same judge said:

“The process of election ensures in the holder of the office correct conduct and full sense of responsibility for discharging properly the functions entrusted to him. It is therefore essential that special immunity must be conferred on the person holding such high executive office from being subject to legal process or legal action and from being harassed by frivolous actions. If such immunity is not conferred, not only the prestige, dignity and status of the high office will be adversely affected but the smooth and efficient working of the Government of which he is the head will be impeded. That is the rationale for the immunity cover afforded for the President’s actions, both official and private.”

The prestige, dignity and status of the presidential office are more likely to be affected by a President abusing his powers.  In any event, harassment of a President by frivolous actions may be prevented by providing that such actions may proceed only by leave of court. Indeed, there is provision in the law for the courts to deal with frivolous actions.

According to article 33A the President shall be responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions. By comparison, the Cabinet of Ministers shall be collectively responsible and answerable to Parliament, and that would include the Prime Minister, who after all would be primus inter pares.

The draft makes a President responsible only to Parliament. Is there a difference between responsibility and answerability? Ministers sit in Parliament and are available to answer questions raised by Members but the President does not sit in Parliament and is, therefore, not available to respond to questions that may be raised by Members. Nevertheless, replies to questions can be tabled in Parliament without the President having to attend Parliament.

The possibility of a distinction existing between these two concepts was considered by a committee of the UK Parliament. In the Committee’s view, the concepts of constitutional responsibility, accountability and answerability are all a part of the same thing and there is no constitutional difference between the terms ‘responsibility’ and ‘accountability’. To avoid any doubt the draft ought to make it clear that the President is both responsible and answerable to Parliament.

No act or omission of the President shall be questioned in a court of law on the ground that he has not acted in accordance with the advice given to him by the Prime Minister or any other Minister but, because the President is responsible to Parliament for the due exercise of his powers, duties and function. It remains to be seen whether the President would be held to account for failing to follow advice.

A President can be removed by a unanimous determination of a Committee consisting of the PM, the Speaker and the Chief Justice that he is incapable of discharging his duties of his office by reason of physical or mental infirmity. He can also be removed if Parliament were to pass a resolution expressing no confidence in the President provided that at least two thirds of its members vote in favour. At least half its members must sign the resolution. It is going to be a tall order, especially where the government of the day does not command such a majority.