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by Percy Wickremesekere

President Kumaratunga's action in taking away the main functions/subjects allotted to three ministers of the Cabinet has sent shock waves throughout the country and even amongst the international community.

Various people including the Prime Minister, Cabinet Ministers and other political parties and groups have already given their views for and against this move of the President. While some support the President on the basis of her Executive powers, others oppose on the ground that she must respect the will of the people expressed through their representatives by a majority in Parliament supporting the Prime Minister. Thereby they argue that the mandate of the Parliament is superior to the mandate of the President. To demonstrate the strength of the UNP (UNF) Government in Parliament they have gone to the extent of collecting signatures of Members of the Parliament supporting the government.

However what all these people fail to realise is that the majority in Parliament is not the issue in this matter. The President is fully aware that she has no majority in Parliament. Like all good politicians she too will try to get a majority in Parliament by doing whatever she can. But at the moment she has no majority and she is not unaware of that fact.

What is in issue is whether the Constitution of Sri Lanka gives her the power to appoint and dismiss ministers and to take away their functions at her discretion. It is our submission that this Constitution which has been often called "A monstrosity" by the President herself, gives her all the powers to do so. What she has done is, exercising these powers at a time chosen by her. Thus it cannot be said that the President had acted unconstitutionally or outside the powers vested in her by the Constitution of 1978. Any other interpretation of the plain and simple words of the Constitution certainly cannot be a legal interpretation.

This is not the first time that this has happened since the UNF Government took office. We remember how the President took over the Development Lotteries Board from the Minister to whom it was assigned by her and the disgraceful manner in which the goons of the United National Party government in connivance with the Police on the orders of the then Minister of Interior prevented the publication of the gazette and foiled the attempt of the President. However, this time the President was wiser and as the Commander-in-Chief of the Armed Forces she ensured that her orders were carried out by the Police and the Army.

Since 1994 both the United National Party and the People's Alliance have paid lip service to the abolition and/or reforming of the Executive Presidency by at least taking away the more objectionable arbitrary powers vested in the President. However, nothing has happened beyond that.

It is very clear that the present Prime Minister, Mr. Ranil Wickremesinghe is marking time till the next Presidential election hoping to be elected the Executive President of Sri Lanka. This brings us to the question of the respective mandates received by the President and the Prime Minister and his Parliamentary majority.

There are some people who for their own political convenience seek to treat the mandate of the Prime Minister as more powerful than the Mandate of the President particularly because the President's party was defeated at the last general election. They are even naive to imagine that the mandate of the majority of the Parliament supersedes the mandate of the President. This as we shall see has no support either in fact or in the provisions of the Constitution of 1978.

The Executive President under the Constitution is not one appointed by anybody but a President elected by more than 50% of the people who voted at an islandwide Presidential election.

Therefore she commands the confidence of the majority of the voters and is in a position to exercise all the Executive Powers of the Executive President until and unless she is removed for misconduct or inability to act in a sane manner in her office and that too according to the provisions laid down for the removal of the President in the Constitution. Until then it is useless to consider that her mandate is in anyway inferior to or is superseded by the mandate given to the majority in the Parliament at a General Election.

It is true that the President has no legislative powers and all legislative powers are vested in Parliament. The converse is also equally true that the Parliament has no Executive Power except those that are assigned by the President to those members of the Parliament who are appointed by her to the Cabinet including the Prime Minister who is also the person who in the opinion of the President commands the support of the majority of the members of the Parliament.

The President under this Constitution is both the Head of the Cabinet as well as the Government in addition to being the Commander-in-Chief of the Armed Forces. As long as we live with this Constitution this shall be the position.

Those who desire to change this position should divert their energy towards changing this Constitution without spending their time and energy on organising goon squads to curb the powers of the President. For the powers of the President can only be removed by the amendment of the Constitution and that is the only legal and civilized way to do it. Merely having a simple majority in Parliament will not enable any party to amend the Constitution. What is needed is a clear two thirds majority in Parliament.

The Constitution can work smoothly or even work at all only if the Parliament and the Executive President work in harmony. This is why Dr. N. M. Perera in his book on the Analysis of this Constitution in 1978 remarked that this Constitution will be unworkable in the event of a President and the majority of the members in the Parliament being from two opposing parties.

As he stated in that Analysis we do not have the traditions that exist in for instance the United States of America where after several years of experience they have found ways and means to work their Constitution when the President and the majority of the members of the Congress and the House of Representatives belong to opposing parties.

This then is the lesson we have to learn and the lesson that the United National Party and particularly their leaders must learn because most of them have been a party to the making of this 'monstrous' Constitution and not co-operated in abolishing the Executive Presidency.

Seeking to impeach this President and thereafter removing her if that is ever possible under this Constitution will also not solve any problem as there is no guarantee that there will not be similar situations in the future where the Executive President and the majority in the Parliament will be from opposing parties.

The only way out of this situation is to work this Constitution being fully aware of its provisions and without considering that any 'People's power' that does not give a 2/3 majority in Parliament will help to change anything at all in the Constitution let alone the Executive Powers of the President duly elected by the people.

Therefore it is useless to look for simpler solutions elsewhere with or without the help of the international community. As long as this Constitution remains as it is, both the President and the Prime Minister must bear well in mind their respective powers as well as limitations.

(The writer is the former Secretary of the Democratic Left Front and is presently the General Secretary of the United Commercial and Mercantile Union - UCMU and the Free Trade Union Centre. (FTUC).

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