Exclusive interview with Dr. Jayampathy Wickramaratne, President’s Counsel and member of the Government’s constitution drafting team … courtesy of The Island, 16 April 2015
In your view, what are the main points of interest in the Supreme Court’s decision on the 19th Amendment Bill? For some time, various views have been expressed regarding the extent to which the executive power of the President can be restricted without having a referendum. Article 3 of the Constitution states that ‘sovereignty is in the people and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise.’ Art. 4 (b), which is the provision relevant to us, says that ‘the executive power of the People including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People.’ Art. 3 is in the list of provisions that require referendum but not Art. 4. In the Thirteenth Amendment case, a decision of a Full Bench, CJ Sharavananda stated for the majority that Article 3 would be violated only if there is a ‘prejudicial impact’ on the sovereignty of the People. But in 2002, in the earlier 19th Amendment case, the Court presided over by CJ Sarath Silva held that Article 4 must be read with Article 3 and this was interpreted by many to mean that every violation of Article 4 would require a referendum. In the present case, the Court used the phrase, ‘prejudicial impact’ and made it clear that ‘not all violations of Article 4 will necessarily result in a violation of Article 3.’
How did the Court view the reduction of the President’s executive powers? The Court held that the Constitution did not intend the President to function as an unfettered repository of executive power unconstrained by the other organs of government. Regarding executive power, the quintessence of the decision is that as long as the ultimate ‘act or decision’ of the President’s executive functions is retained by him, no referendum is necessary. The key word is ‘or’ in the phrase ‘act or decision’ used by the Court. If the final act is that of the President, even if the decision is not his, that would be sufficient. It is on this basis that the Court allowed Article 43 (2) that requires the President to act on the advice of the PM in appointing Ministers but stated that Article 43 (3), which permits the Prime Minister to change the subjects and functions of Ministers without reference to the President, requires a referendum. The independent Commissions are appointed by the President on the recommendation of the Constitutional Council. This too will not require a referendum.
What is the decision on restricting the power of the President to dissolve Parliament? In 2002, the Court had held that the President’s power of dissolution can be restricted only during the first 3 years, being half of the full term. Under the 19th Amendment, Parliament’s term is five years. The President cannot dissolve Parliament for four and a half years unless Parliament requests dissolution by a 2/3 majority. The Supreme Court did not hold that this significant restriction of the President’s discretionary power required a referendum.
What are the implications of the decision? Most important is that a referendum is not necessary to require the President to act on advice or recommendation. The judgment clears the way for the eventual abolition of the executive presidency without a referendum.