Featured image courtesy Dhaka Tribune
President Sirisena is evidently unhappy that a Select Committee of Parliament has been appointed to investigate the circumstances that led to the Easter Sunday terrorist attacks. UPFA MPs have not joined the Select Committee, and live coverage of the initial hearings was halted on state media. According to a press release from the Office of the Speaker on 8 June, the President had assumed that he can ‘order’ (niyoga) Parliament to cease the Select Committee proceedings, on the basis of the Attorney General’s advice that the parliamentary process may prejudice live or impending judicial proceedings. That the President has no right whatsoever to interfere in parliamentary proceedings in this way goes without saying, and the Speaker was right to ignore the presidential intervention on the basis of the established principles of parliamentary democracy stated in his press release. Then the President also summoned an emergency Cabinet on 7 June, in which he had demanded the discontinuation of the Select Committee and threatened non-cooperation with the government unless his demand was met. The Cabinet quite rightly has not acceded to this threat.
The main constitutional issue that arises in this context can be put in the following terms: a President in a cohabitation arrangement does not like something the Prime Minister and Cabinet are doing; in this case he wants a particular parliamentary select committee to stop its proceedings. He threatens non-cooperation with the rest of the government unless his demand is met. One of the principal ways in which he can stop cooperating is by not summoning Cabinet meetings. Can he do this?
In answering this question consistently with the laws and norms of the Sri Lankan constitution, starting consideration must be given to the following constitutional provisions:
Article 4(b): the executive power of the people is exercised by the President.
Article 30(1): the President is the Head of the State, the Head of the Executive, and of the Government.
Article 42(3): the President is a member of the Cabinet and the Head of the Cabinet.
These provisions together seem to point to the conclusion that the President is unquestionably the chief executive of the state. If so, then the summoning of the Cabinet for regular or ad hoc meetings as the case may be, or indeed not summoning it at all, lies solely within the President’s discretion. It is true that, unlike, for example, the summoning of Parliament, Article 30, which restates the duties, powers, and functions of the President, does not expressly mention the summoning of Cabinet. But given the presiding function of the President over the executive, the drafters may well have thought it superfluous to mention that specific right. There thus seems to be no leeway, for example, for the Prime Minister to formally summon the Cabinet where the President fails or refuses to do so, because it is the President and not the Prime Minister that is the Head of the Cabinet. At any rate, while the Cabinet may meet informally without the President or his summons (as it often has in the past when the President was overseas), on this reading of the Constitution, this would not seem possible when the President actively does not wish it to meet.
But this formalistic understanding of presidential powers is too narrow a basis with which to fully account for the way in which executive powers are designed in the 1978 Constitution, because it says much more than this about the political executive: there is, of course, also the Prime Minister and Cabinet which share executive power with the President. Consider, then, the following provisions concerning the executive (with emphasis added in italics):
Article 42 (1): There shall be a Cabinet of Ministers charged with the direction and control of the Government of the Republic.
Article 42 (2): The Cabinet of Ministers shall be collectively responsible and answerable to Parliament.
Article 42 (4): The President shall appoint as Prime Minister the Member of Parliament, who, in the President’s opinion, is most likely to command the confidence of Parliament.
Article 33A: The President shall be responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution and any written law, including the law for the time being relating to public security.
Thus, we see that the political executive as an institution is composed not only of the President but also of the Prime Minister and Cabinet (the non-political executive includes the Public Service, and at one remove, the Constitutional Council). While the President enjoys the numerous official adornments of being the Commander-in-Chief, the Head of State, the Head of the Government, the Head of the Executive, and the Head of the Cabinet, the Constitution is explicit on the point that it is the collective Cabinet of Ministers that is charged with the direction and control of the government of the republic. Moreover, not only are both President (personally) and Cabinet (collectively) responsible to Parliament, but the second most important actor in the executive, the Prime Minister, is someone who must explicitly enjoy the confidence of Parliament in order to hold that office. As was amply demonstrated during the coup crisis of October-December 2018, it is Parliament and not the President that decides which one of its Members commands its confidence to hold the office of Prime Minister. In other words, until and unless we see the executive branch crucially in the context of its relationship of accountability to the legislature, we do not really understand how executive power is cast in the Constitution.
So much for the institutional form of the executive, but the same constitutional objectives are apparent when we look at the functions of the executive. What these provisions tell us is that the Prime Minister and the Cabinet are not mere assistants of the President – although, clearly, they are also there to implement a programme of government policy together with the President – but that the Constitution contemplates a democratically accountable executive. The Cabinet’s collective responsibility to Parliament is the primary means (other than elections) by which executive accountability is achieved. If that was not the case, our executive would not be democratic but absolutist, with the only departure from monarchism being that the President is elected every five years.
What is the relevance of this understanding of executive power to the current issue? It is that the President is obliged to act consistently with democratic norms expressly and impliedly recognised by the Constitution, and in particular the duty of responsibility to Parliament. The President remains a powerful and dominant figure in the architecture of the 1978 Constitution even after the reduction of presidential powers under the Nineteenth Amendment, but the Constitution does not in any way grant the President the powers of an autocrat (except for the period 2010-2015 when the Eighteenth Amendment was in force). This is clear from the provisions which state that the President is personally responsible to Parliament, and that the Cabinet, of which the President is both a member and the Head, is collectively responsible and answerable to Parliament.
Consequently, the President is not entitled to effectively shut down the Cabinet by refusing to summon it. His personal views or feelings about the Prime Minister and/or any other Minister of the Cabinet, however strongly held, are not a relevant consideration in determining the legality and legitimacy of how he exercises the public power given to him by the Constitution. If the President is allowed to exercise his powers without the involvement of Cabinet, or establish a centre of power independent of the Cabinet, then it is to allow him to act beyond the oversight of Parliament. That, to put it simply, is not allowed by the Constitution.
There is clear authority from the Supreme Court for this proposition. In his notable dissent in the In Re the Thirteenth Amendment case ([1987] 2 SLR 312 at 341), Justice Wanasundera stated:
It is quite clear from the above provisions that the Cabinet of Ministers of which the President is a component is an integral part of the mechanism of government and the distribution of the Executive power and any attempt to by-pass it and exercise Executive powers without the valve and conduit of the Cabinet would be contrary to the fundamental mechanism and design of the Constitution. It could even be said that the exercise of Executive power by the President is subject to this condition. The People have also decreed in the Constitution that the Executive power can be distributed to the other public officers only via the medium and mechanism of the Cabinet system. This follows from the pattern of our Constitution modelled on the previous Constitution, which is a Parliamentary democracy with a Cabinet system. The provisions of the Constitution amply indicate that there cannot be a government without a Cabinet. The Cabinet continues to function even during the interregnum after Parliament is dissolved, until a new Parliament is summoned. To take any other view is to sanction the possibility of establishing a dictatorship in our country, with a one-man rule.
It is important to note that this authoritative judicial view about the nature of executive power under the 1978 Constitution was expressed long before the Nineteenth Amendment imposed limitations on unilateral presidential powers, by strengthening the position of the Cabinet within the executive, and by strengthening the control by Parliament of the executive as a whole. Justice Wanasundera’s dicta therefore apply with even greater force today than they did in 1987.
All that being said, the practical problem we face today is that the person who currently occupies the office of President seems oblivious to these constitutional requirements governing the exercise of presidential power, and certainly to the deeper normative requirements of constitutional democracy – through ignorance, obduracy, cupidity, or some other incapacity. So, as Sri Lankans are wont to say in these situations, what to do? When democracies are faced with democratically elected actors who seek to undermine the core values of democracy itself, it is now well-established that constitutional democracies are not defenceless. No longer can despotic Presidents seek refuge in legal formalism in the process of trampling upon the deeper democratic norms of the constitutional order. In philosophical terms, perhaps John Rawls best articulated this principle of democratic constitutionalism when he said, “[j]ustice does not require that men must stand idly by while others destroy the basis of their existence” (A Theory of Justice (1971), p.218).
What practical actions are to be derived from this philosophical principle? Applied to our present circumstances, this demands a resolute defence of the postulates of the Constitution against the depredations of a President who is out of control, at first instance, by the political institutions for checking presidential power in our system, namely, the Cabinet within the executive and Parliament outwith it. Both Speaker and Cabinet were right to repel the President’s first volley last week; but this week he has upped the ante with the refusal hold the regular Tuesday Cabinet on 11 June. Any escalation of the constitutional stakes by the President must be met within the bounds of constitutional propriety of course, but with a level of resolution and plausible force that can ensure his retreat. Any response that seeks to sidestep rather than confront the President’s illegitimate behaviour will only embolden him – as the example of permitting him to escape accountability for the coup crisis has vividly shown. If this requires the regular meeting of Cabinet without the President’s sanction or presence, then there is sufficient authority that can be derived from a purposive reading of Article 42 for the Prime Minister and the Cabinet to do so. The latter would be acting in furtherance of constitutional values, in opposition to a President acting in violation of them. Such bold leadership will galvanise a public demoralised by recent failures of governance and encourage equivocal public servants to conform to the Constitution rather than presidential whims.
This is neither a radical nor a disproportionate way of responding to the present problem. We have a President who only last year attempted an abortive autogolpe in naked violation of the Constitution, but evaded accountability for this otherwise impeachable offence. Today he is trying to contra-constitutionally shut down a parliamentary process of accountability, because the acts and omissions that are under investigation may ultimately point to his personal culpability for failing to prevent one of the country’s worst terrorist outrages. This is a President who has not only shamelessly betrayed his historic mandate for democratisation, but who has repeatedly demonstrated his unfitness for high office by publicly displaying his low intellectual capacity and even lower moral character. Given this alarming recent record, the only surprise is the continuing complacency and insouciance of the Prime Minister, the Cabinet, and the UNP in the face of ominous presidential behaviour.