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Nihal Jayawickrama’s erudite view on the mode of electing the next President

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Former Secretary to the Justice Ministry Nihal Jayawickrama has observed that it makes sense to elect a nationally respected person of knowledge, experience and integrity to the non-political high office of President of the Republic either through Parliament or by a democratically constituted Electoral College as very sensibly proposed by the JVP in the Bill for the 20th amendment.

He has made the proposal in an erudite article written to Colombo Telegraph. It states:

"The national poll for the election of the next President is required to be held between November 8th and December 8th this year.

Since the incumbent President has now indicated that he might not be seeking re-election, Sri Lanka’s next President will assume that office as soon as the result of that election is declared by the Commissioner of Elections. Several potential candidates have already emerged. In fact, any elector who has attained the age of 35 years, is not a citizen of any other country, has not been twice elected to the office of President by the People, and is not disqualified from being elected to Parliament, is eligible to be a candidate provided he/she is nominated by a recognized political party or, if he/she has been an elected member of Parliament, by any other political party or by an elector.

Several of the potential candidates have already begun announcing their policies and programmes. Some have done so at well-attended, lavish meetings, in 5-star hotels, while others have used social media to do so. These policies and programmes deal extensively with economic, social, national security, and other similar issues crucial to the governance of Sri Lanka. One candidate has even announced the text of a new constitution he intends to introduce. Our newspapers regularly devote several columns to critical analyses of these proposed policies and programmes. Has no one yet realized that under the 19th Amendment, the process of replacing presidential government with parliamentary government will reach fruition on the day that President Sirisena ceases to hold office? On and after that date, it will be the policies and programmes of the political party securing a majority in Parliament that will be implemented throughout the country.

Article 42 of the Constitution states that the Cabinet of Ministers is charged with the direction and control of the Government. It is the Cabinet that is collectively responsible and answerable to Parliament. Under Article 45, only a Member of Parliament may be appointed a Minister. It was an unprecedented transitional provision in the 19th Amendment that enabled President Sirisena to assign to himself the Ministries of Defence, Mahaweli and Environment. That transitional provision ceases to operate when President Sirisena ceases to hold the office of President. The next President will not be entitled to assign to himself any Ministry or any subject or function of government; not even the subject of Defence.

What then will be the role of the next President? He/she will be the Head of State, the Head of the Executive (i.e. the Government), and the Commander-in-Chief of the Armed Forces. That is precisely what President William Gopallawa was under the 1972 Constitution. Indeed, even under the 1946 Constitution, executive power was vested in the Governor-General. All of them – Sir Henry Monck-Mason Moore, Lord Soulbury and Sir Oliver Goonetilleke, received copies of every Cabinet memorandum every week, and was then informed of the Cabinet decisions by the Prime Minister at the customary Wednesday lunch at Queen’s House. The only recorded instance of a Governor-General attending a Cabinet meeting is of Sir Oliver during the 1958 Emergency.

In terms of Article 42, which the 19th Amendment appears to have overlooked, the next President will continue to be the “Head of the Cabinet of Ministers”. This probably means that he may chair meetings of the Cabinet, as the Speaker does meetings of Parliament. He may offer his opinion on Cabinet Memoranda and even initiate a discussion on a subject close to his heart. What he will not be able to do is seek to implement his “policy” in respect of a particular subject, since that would be to trespass on the territory of a duly appointed Cabinet Minister to whom that subject has been assigned.

The 19th Amendment has already: (i) removed the legal immunity enjoyed by the President; (ii) repealed the absolute power which the President enjoyed of appointing Judges of the superior courts; the Attorney General, and other senior officials, and required him to do so only upon the recommendation of the Constitutional Council; (v) repealed the absolute power which the President enjoyed of appointing the independent commissions, and required him to do so only upon the recommendation of the Constitutional Council; (vi) repealed the absolute power which the President enjoyed of dissolving Parliament at any time, and enabled him to do so only at the request of Parliament, except during the final six months of its term; (vii) repealed the absolute power which the President enjoyed of appointing Ministers and Deputy Ministers, and required him to do so only on the advice of the Prime Minister; (viii) repealed the absolute power which the President enjoyed of removing a Minister or Deputy Minister, and required him to do so only on the advice of the Prime Minister; and (ix) repealed the absolute power which the President enjoyed of removing the Prime Minister from office.

The President will, of course, continue to enjoy the traditional rights of a Head of State. He may declare war. However, his declaration of war will not be effective or operational unless the Minister of Defence provides the necessary manpower and weaponry to engage in warfare. He may appoint an ambassador, but his nominee will not be able to enter the territory of the State to which he has been accredited unless the Minister of Foreign Affairs has sought and obtained the “Agrement” of the receiving State. He may declare a state of emergency, but that declaration would be futile unless the Cabinet of Ministers provides the human and other resources to enforce it, and the declaration is then approved by Parliament. He will make the statement of government policy at the commencement of each session of Parliament, but that policy would not be his, but of the Cabinet of Ministers as presented to him by the Prime Minister.

If, in full and complete knowledge of the purely ceremonial nature of the office of the next President, some still wish to seek election, one must assume that their interest lies not in introducing and implementing some grand reform measures and welfare programmes (which the next President will not be able to do), but in satisfying some element of self-conceit or self-admiration.
If that be the driving force, why should billions of rupees be squandered, and the personal security of thousands of citizens put at risk, by conducting an island-wide election for the office of President?

As very sensibly proposed by the JVP in the Bill for the 20th Amendment, and as is the practice in many other democratic countries including our neighbour India, does it not make sense to elect a nationally-respected person of knowledge, experience and integrity to the non-political high office of President of the Republic either through Parliament or by a democratically constituted Electoral College?"

 

 

 

 

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