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25th November 2001

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Powerless presidency and power of parliament

By Victor Ivan
Under the 1978 constitution, it is possible that one party holds the office of the executive president while another commands a majority in parliament. Such a scenario existed briefly from August to December in 1994 when the PA won the general election that year. 

President D. B. Wijetunga, who happened to be the UNP leader, co-operated with Chandrika Kumaratunga of the PA. Some said it was because he did not want the remaining period of his presidency to be tormented with problems caused by the PA or because of some other reason. 

Although it was a short period, Ms. Kumaratunga knew that the President could, if he so desired, have called on her mother rather than herself to become the Prime Minister. 

Ms. Kumaratunga knew that if such a thing happened a complicated situation would arise. Even at that time the struggle for power between the mother and the daughter had not ended. The daughter had thought that if her mother was invited to become the Prime Minister she (the mother) would accept it. Therefore, to prevent such a scenario, the daughter, reportedly met not only President Wijetunga but also the former President J. R. Jayewardene who was in retirement. 

To avoid any confusion, President Wijetunga not only summoned the daughter and offered her the Prime Ministership, but also swore in a cabinet proposed entirely by her. He kept only the defence portfolio with him.

President Wijetunga did not want to become a headache to the PA government and he was able to retire in peace after the December 1994 presidential election in a manner that did not hurt the PA in any way. 

However, had the period between the two elections been too long, say about two years, things would have been different. In such an event, President Wijetunga might have been willing to co-operate with the PA but still he could have been a headache to the PA and such a scenario would have led to a conflict rather than co-operation between the executive president and parliament.

If the UNP wins the December parliamentary elections, it has to live with a PA executive presidency for four years of political co-habitation.

The President is not in a position to co-operate with a UNF-majority parliament and government. She did not want such an eventuality in October when the no-confidence motion was to be taken up amidst mass defections from the PA. That is why she dissolved parliament says she cannot function with a UNP-led parliamentary government. 

In such a situation, the conflict between the executive president and parliament is inevitable as predicted by Dr. N. M. Perera in his critical analysis of the 1978 constitution.

Although the Alliance for Democracy an ad hoc group formed during the political crisis preceding the dissolution of parliament drew the attention of all political parties to the necessity of a constitutional amendment that would create an environment in which presidential power and parliamentary power could act in co-operation even when the they are controlled by two different parties, it did not receive proper attention. 

However, the President will be at a greater disadvantage in this conflict which may unfold after December 5. 

Dr. N. M. Perera in his analysis of such a conflict said: 

"How will the President deal with a parliament with an opposition majority which rises against the implementation of his/her policies? In such a situation the executive becomes inactive due to non-availability of funds. If the president who no longer represents the people does not leave, the entire state machinery is likely to become inactive and even the constitution and parliament are likely to be despised by the people, due to that reason." (Page 24)

"This dilemma is no more theoretical aberration. It is a conflict that will exist always and will finally even destroy the constitution." (Page 22).

"Approval of funds necessary for expenditure and the recovery of taxes are a duty of parliament. If a parliament hostile to the president does not approve the funds necessary for administration the president becomes inactive." (Page 60) 

There are a number of ways in which a conflict between these institutions can end. 

Although the President won the presidential election of '99, a defeat of a PA government by the people at this parliamentary election may be considered an expression of the peoples' will against the president as the head of the PA government and as the leader of the policies of that government. That will also annul her victory of '99. In such a situation what should normally happen is to go for a Presidential election immediately. However there is no provision for it under the 1978 constitution. 

In such a situation the President can resign from her office. If that happens the leader of the UNP could become president even without a presidential election. If the President does not resign and, unlike President Wijetunga, does not become a nominal President but follows a policy of using her power against the party which gets parliamentary power, there is a possibility that the people will consider it a rejection of their will and might rise against the President. 

There is no basis in the President's claim that even if the UNF wins she can call upon a person she likes rather than the leader of the UNP to become the Prime Minister. 

This is what Dr. Perera said about it: 

"According to the constitution the President must appoint as Prime Minister a person who is likely to have the majority support in parliament." (Page 52) 

In such a situation, although the executive president has no power to make a new parliament powerless, that parliament if it has sufficient strength can make the executive president powerless. It is parliament which has the power to control the finances as well the power to make constitutions.

The writer is the editor of Ravaya


Dispute over BOI's garment concessions

A Board of Investment (BOI) announcement on equating concessions between BOI and non-BOI garment export manufacturers, employing a minimum 50 workers, has miffed some sections of the industry, particularly those who fought for this concession.

The Sri Lanka Chamber of Garment Exporters (SLCGE), representing hundreds of small and medium sized enterprises, said it had not been informed of the decision despite being in the forefront of the battle for a level playing field between BOI and non-BOI firms strongly pushing the issue at high-level meetings last week. 

The BOI statement said its board had recommended that non-BOI apparel exporters would be recognized under the BOI sector subject to the enterprise enjoying a minimum of 50 employees and exporting 90 percent of their production.

The statement was a bit confusing as it referred to recommendations being made and also talks of a decision. "Consequent to this decision, non-BOI companies will be more competitive as the import of raw material such as yarn, buttons, needles, labels, machinery spare parts, weighing scales and packing material will now be duty free," the BOI said.

It said the move would be welcomed by apparel lobbyists like the Apparel Exporters Association and the Ceylon Chamber of Commerce which have made these recommendations in the past, ignoring the crucial role played by the SLCGE.

SLCGE officials said at a monthly meeting held on Tuesday of the core group, which has representatives of garment associations and officials of ministries and departments, Industries Ministry's additional secretary Roy Jayasinghe said a letter detailing the concessions had been prepared but would be delayed as Industries Minister Ronne de Mel was busy with the poll and would be only available after the election to endorse it.

Officials from the SLCGE then objected when told the concessions applied to non-BOI enterprises of 150 employees and over and had a minimum turnover of US $ 1 million. "We objected to this and said it should apply to a minimum of 50 employees with no ceiling as every garment exporter should be given due recognition," one of the chamber officials present at the meeting said. Treasury secretary P. B. Jayasundera was also supportive of the chamber objections and said it should also benefit small exporters.

Another meeting was held at the Industries ministry on Thursday presided over by Jayasinghe where the BOI suggested that the ceiling on export earnings be brought down to $500,000. The SLCGE again objected to this that there should be no ceiling and all exporters should be treated alike. The BOI representative then said he would have to consult the BOI before taking any decisions.

The BOI statement makes no mention of any ceiling on export income. Small industrialists said that while the recommendations were welcome, it was unfortunate that the role of the SLCGE, representing small and medium sized industries, was not noted in the BOI release which however referred to the role of other bigger chambers which represent multinationals and big manufacturers. (Also see stories in the business section, prepared before the BOI announcement).



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