Executive powers of the People and the Office of the Executive President

Manohara R. De Silva

From the report presented by the author at the national seminar held on May 4 at the BMICH in Colombo organised by the World Alliance for Peace in Sri Lanka

Executive power of the people is vested in the office of the Executive President elected by the people. Executive power is a component of the people’s sovereignty which is inalienable. The 17th amendment has effectively removed the powers of the Executive President elected by the people and vested them in institutions which do not derive authority from the people.

There is a popular misconception among some that, the President is beyond judicial control. This misconception has lead to the belief that the Office of the Executive President was a hindrance to democracy and good governance.

Actions of the Executive President are not above the law and certainly can be questioned in a Court of Law.

The real reason behind the demand for the abolition of the Office of the Executive President is not good governance or democracy, but seeing this office as an accumulation of governmental power in the ‘Sinhala Buddhist’ majority.

Under the proportional representation system, no major political party can come to power without the support of minority political parties. Under the Westminster System, executive power is vested in the Cabinet of Ministers.

A Cabinet of Ministers of a Government elected under the proportional representation system, will invariably consist of members from minority parties who can control the central government with the threat of withdrawing their support to the Government.

On the other hand in a presidential form of government, when a President is elected for a term of 6 years, his term of office does not depend on the minority support in the legislature.

Powers of the President before the enactment of the 17th amendment

The Constitution of the Democratic Socialist Republic of Sri Lanka vests the executive power of the people including the defence of Sri Lanka in the President of the Republic elected by the people.

The President is the Head of State, Head of the Executive, Head of the Government and the Commander in Chief of the Armed Forces. Also the President is the Head of the Cabinet of Ministers.

The President has the power to remove any Minister and therefore the Cabinet of Ministers hold office at the pleasure of the President.

The Constitution also vested with the President, the power to appoint all public officers, required by the Constitution or any other written law to be appointed by the President as well as the Attorney General and the Heads of the Army, Navy, the Air Force and the Police Force.

The appointment, transfer, dismissal and disciplinary control of public officers was vested with the Cabinet of Ministers. All public officers held office at the pleasure of the Cabinet of Ministers.

The Cabinet of Ministers had the power to delegate any of these powers to the Public Service Commission. Appointments to the Cabinet of Ministers and the Public Service Commission was made by the President and was subject to removal by the President.

Article 59 vested with the Cabinet of Ministers (of which the President was the Head and the appointing authority) the power to alter, vary or rescind any appointment, order of transfer, dismissal or any other order relating to a disciplinary matter made by the Public Service Commission.

Therefore the President had total control of the Public Service through which the executive power of the President vested in him under Article 4 (b) was exercised.

Changes made by the 17th amendment

The 17th amendment removed all the powers of the President (and of the Cabinet of Ministers appointed by him) with regard to the appointment and control of the Public Service (other than the Armed Forces and Heads of Department).

The executive power of the President had to be necessarily exercised through the public service. If the public officers were not holding office at the pleasure of the President or his Cabinet, then they were no longer answerable to the President or the Cabinet of Ministers.

The failure on the part of any public officer to carry out any direction of the President or the Cabinet of Ministers will bring no adverse consequences to them.

The 17th amendment took away the right of the President to appoint officers to the Public Service and placed that power in the Public Service Commission appointed on the recommendations of the Constitutional Council.

Thus, with the enactment of the 17th amendment, public service was answerable only to the Public Service Commission and not to the President or his Cabinet of Ministers.

The Public Service Commission which consists of 9 members had representation of all ethnic groups in Sri Lanka. Out of the 8 recognized ethnic groups, the 76 percent of Sinhalese would have one or two members to represent them. Minority rule was in this manner effectively established through the 17th amendment.

Consequences of the 17th amendment can be explained with a few examples.

1. Distribution of State Land

Divisional Secretaries (DS), Additional Divisional Secretaries (ADS) and Grama Niladaris who are in charge of administration of each DS Division, exercises executive power within the DS Division.

It is only the District Secretary (formally Government Agent) that can be considered as Head of Department, whom the Cabinet of Ministers have the power to appoint.

The appointment, transfer, dismissal and disciplinary control of all other officers are vested with the multi-ethnic Public Service Commission.

With the enactment of the 17th amendment, all Divisional Secretaries, Additional Divisional Secretaries and Grama Niladaris need to be appointed by the Public Service Commission.

The Executive President, under the 17th amendment, will not be in a position for instance to appoint even a Divisional Secretary or a Grama Niladari in any DS Division if the 17th amendment is implemented.

The removal of the President’s power in this manner will have far reaching consequences, specially in the Eastern Province. Under the 13th amendment, alienation or disposition of State Land within a province to any citizen or to any organization by the President shall be on the advice of the relevant Provincial Council in accordance with the laws governing the matter.

Therefore if the Provincial Council does not ‘advise’ the President, he would not be in a position to alienate even an inch of land to any citizen or organization.

Alienation of State land is done under the provisions of the Land Development Ordinance. Selection of persons to whom state land is alienated under the Land Development Ordinance is made at a Land Kachcheri.

A land kachcheri is held by the Government Agent and he has the power to select applicants to whom State land is lienated.

By the operation of Transfer of Powers (Divisional Secretaries) Act No. 58 of 1992, in any written law (other than Irrigation Ordinance) any reference to a Government Agent had to be substituted with the expression ‘the Divisional Secretary of the Divisional Secretaries, Division’.

Thus it is the Divisional Secretary who will have the power to select applicants for alienation of State land.

Therefore the appointment of Divisional Secretaries in the Northern and Eastern Provinces will be a crucial decision as far as the Northern and Eastern Provinces are concerned.

Alienation of State land in the Eastern Province has been subject to much controversy since independence. Since 1977, most of the lands surrounding the Deeghavapiya Raja Maha Vihara has been distributed among Muslims discriminating the Sinhalese and Tamils. The most recent attempt was the distribution of 500 houses exclusively to Muslims discriminating the other communities.

This matter is now before the Supreme Court. In this situation, the appointment of a Divisional Secretary in Addalaichenai DS Division in which the Deeghavapiya Raja Maha Vihara is situated and the appointment of Grama Niladaris in GN Divisions of Deeghavapiya 01 and 02 will be crucial.

The concerns expressed by the Sinhala community with regard to land distribution would be justified specially for the reason that the appointing authority of the Divisional Secretary who will be exercising these powers is the multi-ethnic Public Service Commission where the Sinhalese members would be a minority.

2. Security of the Regional Minorities

Similarly, with the enactment of the 17th amendment, the Executive President would not be in a position even to effect a transfer of a police constable in a Provincial Police Force.

There is much concern among Sinhalese in the North and East of their fate under a Provincial administration run by a ‘former LTTE’ Chief Minister. For instance if any police officer appointed by the Provincial Police Commission is acting against the interests of their villages in the Northern or Eastern Provinces, the Central Government would not be able to take any action against such an officer.

It is only the multi-ethnic National Police Commission appointed on the recommendations of the Constitutional Council that will have the power to take action against such officer. If the National Police Commission does not take action against such officer it would not be possible for the executive to intervene in such a situation.

Fate of the Buddhist National Schools

All teaching staff including Principals of National Schools are appointed by the Public Service Commission.

There are many Buddhist denomination schools, such as Ananda, Nalanda and Visakha which are National Schools. It has been considered a necessity to appoint Buddhist Principals to these schools.

Admission of students to these schools are made on the basis of religious proportion that existed at the time of vesting of these schools. At the time these schools were vested in the Government, over 90 percent of the student population were Buddhists. There have been a demand for sometime that these schools should be converted to multi-ethnic schools destroying the Buddhist composition.

The multi-ethnic Public Service Commission, will now be in a position to do this without the intervention of the Executive.

To be continued