Ceylon-to-Lanka: Constitutional Dispensations, 1948-2019

Sarath Amunugama, in “the Sam Wijesinha Memorial Oration” at the SLFI on Friday, 30 August 2019 –– A Talk entitled “Parliament and President”

I am deeply honoured by the invitation extended to me by Rajiva Wijesinha and Nigel Hatch to deliver the Sam Wijesinha Memorial Oration, which seeks to commemorate the late Sam Wijesinha, who was a personal friend of mine. I selected the topic “Parliament and the President” because it deals with two main aspects of the life of Sam Wijesinha (SW). Not only was he intimately connected with Parliament having served there as Deputy Clerk and ultimately Clerk and Secretary General but he was also close to several Presidents who sought his advice on many matters not exclusively in the area of parliamentary practice. He also had the distinction of serving as the first Ombudsman where he received public complaints from Parliament and provided redress expeditiously and in a humane manner.

 Sam Wijesinha

Moreover, the subject of my address is, I believe, extremely topical for several reasons. Quite apart from Sri Lanka going into both presidential and parliamentary elections in the short terms and the political debate as to the inter relationship between both institutions after the 19th Amendment, behind both appellations “the President” and “Parliament” lay two institutions, namely the executive and legislature. In political theory the relationship between these two areas of the State lies at the heart of governance.

In fact given the genesis of the Second Republican Constitution of 1978 which introduced the concept of a directly elected Executive President, its chief architect the late President J.R. Jayewardene (JRJ) who was brought up in the parliamentary tradition was anxious to ensure that in this hybrid Constitution the role of Parliament was maintained though in diminished form unlike in other presidential Constitutions. All Democratic Constitutions have sought to define the imperative linkage between the two institutions. The relationship between the Executive and the Legislature may have many combinations and computations depending on the historical circumstance of each country’s Constitution making, but in all they form the main focal point of a country’s governance.

The Reception of the British Cabinet System of Governance into Ceylon

Ceylon as we were then known at Independence received a Constitution which replicated the British system of government, with the Prime Minister as Head of the Cabinet and a bicameral legislature comprising of the Senate and the House of Representatives. The Governor General representing the Queen was a non-Executive Head of State with limited powers.

This Constitution provided for two Senators to hold Cabinet office one of which wasby convention the Minister of Justice. The rationale for this was to ensure that the holder of this Cabinet office was removed from the hurly-burly of politics by having to be directly accountable to the lower House.

The Senate per se comprised of 30 Members, 15 of who were elected by the lower House and 15 appointed by the Governor General on the recommendation of the Prime Minister. In its deliberative function the Senate, like all second Chambers in Democratic Constitutions, was to provide a more reflective approach to governance and to ensure that there could be a reconsideration of Bills emanating from the lower House despite there being a restriction on the powers of the Senate in this regard. In retrospect it must be stated that the Ceylonese Senate made a good contribution disproving the dictum that “if it agrees it is superfluous and if it disagrees it is mischievous”.

In its composition the Soulbury Constitution placed much emphasis in ensuring that minority interests like the Tamil, Muslim and Burgher communities as well as commercial interests were represented. In fact this was done. But after the water shed election of 1956 the then Prime Minister SWRD Bandaranaike changed this practice by nominating Members from minority castes and thereby perpetuating their distinctive social status while reaping short term electoral benefits.

Despite not being explicitly stated in the operation of the independence Constitution from 1948 to 1972 there was a separation of powers between the Executive, Legislature and Judiciary as expounded by the highest Courts in the celebrated 1962 coup case Liyanage V. The Queen. There was also a restriction on the legislative power of Parliament by the famous Section 29 which stipulated that any law which infringed on racial or religious rights was to the extent of such contravention void. This led to a dispute amongst scholars some who argued that it was an entrenched clause that could not be amended whilst others contended that it could be done with a 2/3 majority.

Nigel Hatch in Address of Thanks

However to my mind in Ceylon’s post-independence scenario the interplay between social and political upheavals and Constitution making becomes a significant factor in the country’s political history. The general elections of 1970 which swept the coalition headed by Mrs. Sirima Bandaranaike into power with a 2/3 majority is a case in point. In the build up to that election the SLFP and its coalition partners sought a mandate to enact a new home grown Constitution. In that respect we were way behind India and Pakistan which at independence, adapted and devised their own constitutional structures rather than a replication of the British system as occurred in Ceylon. The Constitution makers of 1970 wanted to create an “autocthonous” Constitution which was not in origin linked to what was called a colonial construct.

A constituent assembly was established to draft and enact a new Constitution which ultimately became the First Republican Constitution of 1972. But the backdrop to the enactment of this new Constitution was not without its significant developments. You would recall the attempts of the former Minister Sundaralingam to seek judicial intervention to stop the enactment of a new Constitution. By 1970 the then Government had abolished appeals to the Privy Council and established in its place the Court of Appeal which became the highest appellate Court.

The 1972 Constitution was a radical departure from our independence Constitution. Whilst formally vesting sovereignty in the people it expressly did away with the concept of the separation of powers and made the National State Assembly which replaced Parliament omnipotent as the “supreme instrument of state power”. The Senate was abolished and we had a unicameral legislature. The judicial review of legislation was explicitly done away with and all Acts of Parliament were immune from post enactment judicial review. Instead there was pre legislative review by the Constitutional Court which examined the constitutionality of Bills in terms of compliance with the Constitution. Another key innovation was the foremost place given to Buddhism. In that respect the socio-political and social forces that reached its apotheosis in the 1970 coalition government seem to have determined the essential nature of the Constitution notwithstanding some deeply held values of the leftist members.

To my mind the introduction of pre legislative scrutiny and the doing away with post enactment judicial review was welcome. I was at that time the Director of Information of that Government and recall Dr. Colvin R De Silva in moving that change in the constituent assembly referring to post enactment review as the Courts seeking to “unscramble scrambled eggs”. The supremacy of Parliament was pivotal to that Constitution. In retrospect one could also cogently argue that given that the Prime Minister at the time had a 2/3 majority it rendered the position of the PM in that constitutional setting as quasi Presidential. Mrs. Bandaranaike was supreme and this made the left Ministers uncomfortable. Finally the left Parties quit the coalition government stating that the PM and her confidante Felix Dias Bandaranaike were dictatorial in their style and obstructing the leftward progress of their government.

The 2nd Republican Constitution of 1978

The UNP victory in the July 1977 general elections was an electoral and political landslide. This unprecedented parliamentary majority enabled J.R. Jayewardene to effect the constitutional change that he had long advocated. The debacle the UNP faced at the 1956 elections was traumatic for J.R. Jayewardene and from the mid 1960s he advocated a strengthened Executive and a changed electoral system given the low number of seats won by the UNP at the 1956 election despite the high percentage of votes that it polled.

Although he wanted to strengthen the Executive he adroitly set up a parliamentary Select Committee which he initially chaired to draft a new Constitution. Thus the modality of a constituent assembly was not followed. The proposed changes were to follow the amendment procedures prescribed in the 1972 Constitution.

After the 2nd amendment to the 1st Republican Constitution of 1972 in terms of which he transformed himself from Prime Minister to Executive President, that Select Committee was chaired by Mr. Ranasinghe Premadasa who succeeded him as PM.

The 1978 2nd Republican Constitution has been characterized by AJ Wilson who was my teacher at Peradeniya, as the “Gaullist System in Asia” as it encompassed elements of the 5th French Republican Constitution. But it was grafted on to the British parliamentary system. It provided for a directly elected Executive President who was Head of State, Cabinet and Commander in Chief, with minimal accountability to Parliament who could appoint and dismiss the PM and the Cabinet at will. Except for limitations during the first year of its existence the President could also dissolve Parliament at will. But that Constitution reintroduced the concept of a separation of powers, although it did not provide for post enactment judicial review. It introduced a Bill of Rights with wider scope and provided for a remedy for infractions in the Supreme Court.

Thus a strong independent executive President was created, immune from the vagaries of parliamentary majorities. This was a drastic change from our previous constitutional experience where the Governor General or the President was a nominal Head of State who was on extraordinary occasions a neutral arbiter in Parliamentary affairs. In effect under the 1978 Constitution the elected Executive President was almost an absolute monarch who could do anything except “make a man a woman” as JRJ once famously quipped. JRJ also publicly stated that he was the modern representative of a long line of Sinhala royalty beginning with Vijaya. He made no bones about his claims to royal status as President under his Constitution. Dr. N.M. Perera in a trenchant critique of this Constitution in its original formulation highlighted the minimal accountability of this office by posing the question “what if the President goes mad” or is incapacitated. Impeachment then is the only remedy. In fact the impeachment motion against President Premadasa did contain such an accusation.

Some commentators have argued that the principal rationale of the 1978 Constitution with a strong Executive President was to ensure quick decision making as a factor of economic growth and in order to find a solution to the problems facing the minorities. But the political trajectory that Jayewardene pursued under that Constitution yielded different results – the deprivation of Mrs. Bandaranaike’s civic rights in 1980, the infamous referendum of 1982 to extend the life of Parliament and the aftermath of the failed District Development Councils of 1981 together with the July 1983 ethnic riots, created multiple political problems in the north and south of Sri Lanka which threatened the unity and sovereignty of this country. The 13th Amendment of 1987 which introduced Provincial Councils did not satisfy the aspirations of the LTTE and the country had to undergo a debilitating civil war.

Perhaps it was President Premadasa who faced the brunt of these issues. The intra-party rebellion in the UNP spearheaded by Gamini Dissanayake and Lalith Athulathmudali led to the formation of the DUNF, which had as its raison-d’être the diminution of the powers of the Executive President, the failed impeachment motion against him, the militant JVP uprisings of the late 1980s and the separatist conflict in the north and east which culminated in his assassination in 1993.

While J.R. Jayewardene with a 5/6 majority could ride roughshod over Parliament the proportional representation system he introduced precluded such a decisive majority in the case of subsequent Presidents. Thus Governments needed either to engineer cross overs, enter into coalitions or ensure cohabitation among opposing parties if they were to govern effectively. Thus the 1978 Constitution displayed a contradiction in that the President sought the support of Parliament but could not ensure a stable majority due to the proportional representation the electoral system it introduced.

Cohabitation did in fact take place between President Wijetunga and Prime Minister Chandrika Kumaranatunga consequent upon the general election of 1994. Thereafter it took place between President Kumaranatunga and Prime Minister Wickremesinghe between 2001 and 2004 until she removed certain Ministers and subsequently dissolved Parliament in February 2004.

The Executive presidential system introduced in 1978 was critiqued by the SLFP, the left parties and even by an influential section within the UNP. Attempts at reforming it and making the office of President more accountable were not successful. However President Kumaranatunga diluted some of the powers of the President with regard to the establishment of the Constitutional Council and the appointment of independent Commissions by the 17th Amendment to the Constitution. However by the subsequent 18th Amendment the two term restriction in Office of the elected President was removed and other amendments were effected with regard to the interplay between the President and the Parliamentary Council as regards appointments to the independent Commissions. However, subsequent views suggest that this legislation was not in the best interests of democratic governance.

19th Amendment

The 19th Amendment Bill sought to reset the constitutional relationship between the President and Prime Minister and essentially vest the President’s powers in the Prime Minister and also curtail the powers of the President as regards the dissolution of Parliament. The immunity conferred on the President was also restricted and a challenge by way of a Fundamental Rights Application against an official act was rendered permissible.

As such the Bill sought to make the Prime Minister as “Head of the Cabinet” and empowered him to determine in lieu of the President, who instead had to act on the advice of the Prime Minister, the composition and appointment of the Cabinet and other Ministers and even changes thereto. Here too we have to remember that these changes were proposed consequent upon the election of the current President in 2015. The agreements prior to the setting up of a coalition supporting Maithripala Sirisena contemplated the stripping of the powers of the President and enhancing the powers of the PM. However given that in the first hundred days the composition of Parliament was weighted to the opposition only a truncated set of amendments were passed without a murmur from the new PM and his supporters. The end result was a truncated amendment which was a recipe for disaster. It set the President and the PM on a collision course with adverse consequences for the Government and the country at large.

In its Determination on the 19th Amendment the Supreme Court held that the transfer of power from the President to the Prime Minister including inter alia the Prime Minister being Head of the Cabinet and the President acting on the advice of the Prime Minister as regards appointment of the Cabinet was unconstitutional and required both a 2/3 majority in Parliament and a referendum.

Thus, what was ultimately enacted by Parliament as the 19th Amendment was a master piece in ambiguity as regards the powers of the President vis-a-vis the PM. As regards the dissolution of Parliament there was a restriction on the President doing so for 4 years, unless Parliament by a Resolution passed by a 2/3 majority requested the President to do so.

Despite what some commentators have argued it is clear that the President after the 19th Amendment is not entirely without power. The President is still directly elected by the people, he continues as Head of State, of the Executive and the Government and Commander in Chief. The President is a member of the Cabinet of Ministers and Head of the Cabinet. He determines the number of Ministers of the Cabinet and assignment of subjects to such Ministers in consultation with the PM where he considers such consultation necessary. He may also at any time change the assignment of subjects and functions and composition of the Cabinet of Ministers

Conclusions

Let me now summarize some of the arguments I have presented in this lecture:

Constitution making in Sri Lanka has been determined by the socio-political forces which became dominant prior to an election. Indeed, a proposal to change the existing constitution was always a main item in the manifesto of the main political parties at several successive elections.

The final result of the Constitution or amendments to an existing Constitution brought into force depend on the strength in Parliament of the party proposing change. If it does not have a clear majority the Government is held hostage by the opposition.

Except for the Soulbury Constitution, constitution makers have not come up with arrangements regarding minorities which could have the support of the whole House. This has led to the exacerbation of the conflict and a feeling of frustration among minorities.

In modern times good administration requires strong leadership. This is the experience in the Asian region of countries like India, China and Singapore. Thus in any constitution a balance must be struck between executive authority especially rapid decision making in promoting economic growth in a highly competitive global environment. Such competition also demands decision making which may not be popular at the given moment but may be necessary in the long term.

If the executive leader is constantly under pressure to appease Parliament which is fragmented on political, ethnic, religious and regional grounds he could be paralyzed with unfortunate long term consequences. This will affect the stability of the country.

The role of the President and the Prime Minister has to be sustained by a stable Parliament. This means that their roles have to be viewed in close relation to the type of prevailing electoral system. For instance, if the proportional representation system does not lead to a clear majority it will affect the function of the Prime Minister who has to scramble for votes in Parliament to get his legislation passed. This was the rationale behind the proposed 20th Amendment which is yet to see the light of day.

One solution has been to create a Prime Minister who is in fact a President. For example, the Prime Minsiter of India is today not only primus inter pares but a quasi-President. Thus this dilemma of authority versus accommodation in the executive has to be resolved taking into consideration the existential condition of a given society. The lurch between the Dr. Colvin R de Silva and the J.R. Jayewardene constitutions from one extreme to the other is replicated in various proposals for constitutional change.

In my view in any future constitutional arrangement we cannot completely do away with the office of an elected Executive President. In a multi ethnic, plural society as ours the office of President must be one that all minorities can participate in the selection of the holder of that office. Devolution of power depends on both centrifugal and centripetal forces. We need to strike a balance which the office of the President as the unifying force could represent.

Finally, no Constitution can succeed unless the Executive, Legislature and Judiciary seek to abide by it and not find ways and means of subverting it. In this sense our Judiciary has set an example. Even if the President has diminished powers in the future a person who has earned the respect of the country could use his moral authority to safeguard the Constitution and achieve its ideals. It was in this spirit that the Indian Constitution, which was influenced by Jawaharlal Nehru, created a non-executive presidency which was filled with outstanding personalities like Rajendra Prasad and Sarvapalli Radhakrishnan who used their moral authority to guide the nation.