The Executive Presidency established by the 2nd Republican Constitution of 1978 attracted a lot of criticism and almost all political parties have, during elections pledged to abolish it. This pledge has been observed in the breach and since recently media reports indicate that some who were critical of its dictatorial content are today advocating not only its retention but also the removal of the restriction of two terms imposed by Article 31 (2) of the Constitution.
The 1978 Constitution transplanted the Executive Powers of the Prime Minister under the earlier Constitutions on to the powers of the President in addition to his position as head of state. These powers are all encompassing. Under this Constitution the President is the head of state, the Commander-in-Chief of the armed forces and the head of Cabinet. He can prorogue and dissolve Parliament at will any time after one year of its election. He can appoint any number of Ministers into his cabinet from among the members of Parliament.
He appoints the Governors of Provinces. He also appoints the Service Commanders, the Judges of the Superior Courts, the Commissioner of Elections, the Auditor-General, the Attorney-General, the Secretary-General of Parliament and a host of other officers who hold the most vital positions in Government.
The President thus has an iron grip over the Public Service including the Elections Department and the Police. This enables him to enjoy an unfair advantage when he himself is a candidate at an election. These powers assume a dictatorial character when taken in combination with the blanket immunity he enjoys from judicial process (article 35) and the near impossible procedure for impeachment prescribed by article 38 of the Constitution. Thus the only limitation on Presidential power appears to be the two term limit under article 31(2). The removal of this restriction would make the Constitution of Sri Lanka the ultimate dream of any megalomaniac.
The media first reported that the cabinet has approved the amendment to remove the restriction on the two term limit. Subsequent reports indicate that the focus has shifted to the creation of the office of “Executive Prime Minister”. The office of Prime Minister is the main feature of the Westminster System of Government. The Executive arm of such a Government is run by the cabinet of Ministers of which the Prime Minister is the head. Following the General Election the Sovereign in the United Kingdom appoints the leader of the winning party as the Prime Minister.
However, he is not the head of state or the Commander-in-Chief of the armed forces, which position is held by the Sovereign. Thus by the very nature of his office the Prime Minister does exercise executive power and he is the first among equals. Therefore under the Westminster political culture it would be unnecessary to describe the position as “Executive” Prime Minister just as it is unnecessary to describe a lawyer as being a “Legal Lawyer”.
The Prime Minister in Britain can hold office for any number of terms as long as he is able to command a majority in Parliament. However his powers are not without limits. He is answerable to Parliament and faces Parliament every week at Prime Ministers’ Question Time, which often turns out to be a gladiatorial contest between him and the Leader of the Opposition. This is in sharp contrast to the practice in Sri Lanka where Ministers are rarely present at Question Time and the Chief Government Whip reads out answers prepared by officials.
The Prime Minister can also be removed from office by a motion of no-confidence like any other Minister. The exercise of executive power is also subject to judicial review and the development of the law relating to writ jurisdiction is tied to the abuse of power by the executive. Most Commonwealth Countries follow the Westminster system of Government (e.g. Canada, Australia etc.) and have a Prime Minister as the Executive head of Government. In India too the Prime Minister is the head of the Executive Government and is answerable to Parliament and has Constitutional restrictions on his powers.
By the Independence Constitution of 1948 Sri Lanka too adopted a Westminster type system when the Prime Minister was the Head of Government while the Governor-General was the Head of State. The Prime Minister was required by the Constitution to hold the two important portfolios of Defence and External affairs. The first Republican Constitution of 1972 also had the Prime Minister as head of Government while a constitutional President functioned as Head of State and Commander-in-Chief of the armed forces. It was the 2nd Republican Constitution of 1978 which changed all this and transplanted the Executive powers of the Prime Minister on to the President who was an elected Head of State and not a Member of Parliament.
To describe a President either as an “Executive President” or a “Constitutional President” is understandable as can be seen from the Constitutions of various countries, e.g. India has a Constitutional President sans Executive power while the USA has an elected Executive President. But a Prime Minister, is always taken to mean one who wields executive power and there has never been a “Ceremonial” or “Constitutional” Prime Minister.
Is this proposal to establish an office of “Executive Prime Minister” meant to reintroduce a Westminster type head of Government? Or is it an attempt to transplant the powers of Head of State and Commander of the armed forces into the office of Prime Minster who is eligible to hold office for an unlimited number of terms? A clear cut answer to this would be essential before any other reforms are considered.
The writer is a retired secretary–general of Parliament.