THE PARLIAMENT THE CONSTITUTION AND THE PRESIDENT

Bad smell emanating from ‘Constitutional mud-pit’ owing to arbitrary actions of MS

Parliament should not be a rubberstamp of executive presidency

Legislature and executive may sport different political complexions

It should be stated here, that there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates, or if the power of judging be not separated from the legislative and executive powers

When Parliament was prorogued, the President said he had the numbers. He was confident of mastering 113 votes to stabilise his power

The Supreme Court of America has earned a reputed name in judicial circles all over the world for taking balanced and independent decisions without bowing its head to the executive

As a student of politics, I have read a number of times DR.N.M. Perera’s thesis, ‘A CRITICAL ANALYSIS OF THE 1978 CONSTITUTION,’ as I love it and its revolutionary author, unreservedly. However, to refresh my memory once again, I went through it a few hours ago as my MOTHERLAND is undergoing a deep Constitutional crisis, endangering the democratic system of government. In this thesis, the LSSP leader has predicted the evils of the Presidential system of government, in the following two paragraphs as far back as year 1978, the year that should be regarded as a national tragedy and catastrophe -- the year that gave birth to the ‘illegitimate child’ widely regarded as the 1978 CONSTITUTION OF J.R. JAYAWARDENA.

In his preface to his thesis, Dr. Perera says: “(A) It is conceivable that the executive and the legislature can develop an unbridgeable antagonism. The legislature and the executive may sport different political complexions. This is all the more so because the Presidential elections do not coincide with the elections to the legislature. The country might well face a situation where a left majority legislature has to confront a right-inclined President or vice-versa. In either case, the ensuing deadlock may create an impasse which might lead to the discrediting of democracy itself. Moreover, a strong Prime Minister who is himself an elected member and therefore, with popular backing may refuse to knuckle down to an equally self-willed President. In the end, the President may cut the ‘Gordian Knot’ by dismissing this Prime Minister and appointing a substitute. Will he command a majority in the House especially if the outgoing Prime Minister had the full backing of the Parliament?”

Dr. N.M. Perera continues: “(B) This is also the experience of the Philippines, which because of its close association in the past with the United States, embraced the Presidential system. If power corrupts and absolute power corrupts absolutely, then the deterioration of the American Republics into dictatorships is easily understood. The Presidential system offers unlimited scope for wielding unlimited power albeit for a limited period. But the taste of unlimited power grows with the feeding and the lust cannot be easily satiated. It is a matter of regret that Sri Lanka has amassed considerable experience in Parliamentary government and has successfully overcome the teething troubles of the early period should now be thrown down the slope of Constitutional confusion in the end jeopardizing democracy itself.”

When Parliament was prorogued, the President said he had the numbers. He was confident of mastering 113 votes to stabilise his power. Not only once, he went on repeating it and the voters believed in his story. Several other accomplices of the President went a further mile away from the President and claimed they could even command 120-124 votes in the Parliament. However, with all these big noises coming to an end in the midnight, the PARLIAMENT was arbitrarily dissolved and the whole nation dragged into another unwanted general election, even before the due date. Is it correct or is it in conformity with democratic principles and practices and established procedures and parliamentary customs? The arbitrary actions of the executive have paved the way to establish and nurture nepotism.

It was the duty of the President to seek advice from the Supreme Court in all these matters, in the absence of a Constitutional Court. I think he has deviated from this noble principle.

The Supreme Court of America has earned a reputed name in judicial circles all over the world for taking balanced and independent decisions without bowing its head to the executive. President George W. Bush, seeking to protect the nation after the terrorist attacks of September 11, 2001, issued an executive order creating special military commissions to try suspected enemy combatants who were being held at Guantanamo Bay. His decision, combined with other assertions of unilateral Presidential power to authorise something close to torture or indefinite detention of suspected terrorists, provoked more criticisms than any other in his presidency. Bush had been emboldened to act in part because his legal advisers had assured him that unilateral action would be upheld as Constitutional under his powers as commander in chief, and also perhaps, because the Chief Justice he had recently appointed, John G. Roberts, Jr., had sustained Bush’s actions as an appellate judge.

When the Supreme Court heard the case in 2006, Roberts properly rescued himself because of his earlier participation in the case, but Bush still had reason for optimism: seven of the nine judges were Republican appointees, including an associate justice appointed by Bush, Samuel A. Alito. In Hamdon V. Rumsfield, however, by a vote of 5-3, the Supreme Court held that the President’s military commissions were illegal. In his opinion for the court, Justice John Paul Stevans emphasised that the President could create military commissions only with congressional support, and congress had refused to give Bush the power to create the military commissions at issue in the case (THE SUPREME COURT - The personalities and rivalries that defined America By Jeffrey Rosen, Professor at Law, George Washington University and the legal affairs editor of the New Republic.)

All these means that the Parliament should not be a rubber-stamp of the executive presidency.

It should be stated here, that there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates, or if the power of judging be not separated from the legislative and executive powers. In short, liberty and dictatorship are incompatible.

Prof. G.L. Pieris carried out a commendable struggle from 2015 onwards as the Podujana Eksath Peramuna Chairman against the various manipulations of the executive presidency. As a result of these repeated arbitrary actions of the executive presidency taken recently, a bad smell is emanating from the ‘Constitutional mud-pit.’

Writing the ‘FOREWARD’ column to Dr. Perera’s masterpiece, the eminent jurist and leading criminal lawyer Sri Lanka has ever produced, Dr. Colvin R. De Silva says: “What has actually been given to us in the name of an American model is a jumble from diverse Presidential type Constitutions adopted to suit the interests of the capitalist class in Sri Lanka. The jumble far from being a Parliamentary democracy is a Constitutional Presidential dictatorship dressed in the raiment of a Parliamentary democracy. The question to be faced is whether our journey towards people’s power along the path of Parliamentary democracy will be forever obstructed by the Jayawardena Constitution. IT COULD VERY WELL BE A REVOLUTIONARY QUESTION.