President had no plenary executive power
- -Counsel for Home Affairs Minister
By Shehan Chamika Silva
Chanaka de Silva PC appearing for third respondent- Home Affairs Minister Vajira Abeywardena yesterday formulated the argument that the President had no plenary executive power, but a power that should be interpreted in the backdrop of a democratic governance, and also such powers should be construed reading all the relevant sections of the Constitution together.
At the onset of the inquiry, he stated that this petition is of primary importance as it is relating to the eligibility requirement of a person who is contesting to the most important position of the country.
Reading the initial preamble-Swasti in the 1978 constitution, he described that the intention of the constitution was to constitute Sri Lanka into a ‘democratic’ country but not to confer power to one person creating an autocratic authority.
He explained that ‘plenary power’ is defined as the unqualified complete power, and that is not what the intention of the constitution as stipulated in the preamble.
He also argued saying that there is no executive plenary power given to the President under Article 4(b) and 30(1) of the constitution, as one cannot merely look into the wordings of those Articles without looking into the construction of the executive power in the constitution, because in 2005 there were several other chapters which dealt with the executive powers and therefore, they all should read together.
He pointed out Article 42 and 43 of the constitution and said that those articles have put responsibility on the executive as the president and also as the cabinet, and therefore, the Articles 4(b) and 30 alone cannot interpret that the president has all the plenary executive power.
He also said that, under Article 30 it says that President is the head of the executive and not as he is the executive.
So executive powers cant be plenary and it should come from the constitution or an Act not like United Kingdom’s monarchical power, he said.
Focusing on the Article 44 (1) (2), which provided then president to assign ministries and remain unalloted ministries under him, Mr. De Silva was of the view that that article’s sub sections must read with simultaneously and not independently.
Citing various precedents, he said that the Constitution does not provide unfettered repository executive power on the president. And he cannot function in those ministries before the cabinet is appointed.
At this moment, Court of Appeal President Yasantha Kodagoda questioned as to what would happen between the time when a new president assuming duties and the appointment of the Ministries if the president has no residual power over all the executive.
PC Chanaka de Silva replied that state mechanism doesn’t stop because state actors are not appointed. For instance, all the public service and the other heads of the departments function without problem in those moments, all they have to do is wait for a few days till the president appoints the cabinet, he said.
When there is no cabinet, the president’s most singular important thing to do is to appoint the cabinet according to the law, unless there is a serious threat to the security, he said.
He also mentioned that there was a time when a former president was assassinated and later there was a time period where there was no head of the executive, but the functioning of the government maintained without a problem, he stressed.
Therefore, he formulated the argument that the President had no plenary executive power, but a power that should be interpreted in the backdrop of a democratic governance, and also such powers should be construed reading all the relevant sections of the Constitution together.
President exercised repository executive power derived from people since 1972
-Counsel for Gota
By Shehan Chamika Silva
Appearing for respondent- Gotabaya Rajapaksa, Romesh de Silva PC, addressed on the issue that whether the then president had repository executive powers to exercise all executive powers in the absence of a cabinet. He said, in 1972, people of Sri Lanka got together and created a forum to formulate the first constitution, and that people’s sovereign power was thereafter given to the National State Assembly (then parliament).
Thereafter, when J R Jayawardene had brought several amendments to that first constitution and divided the sovereign power into three categories namely executive, legislative and the judiciary. Mr. De Silva said thereby the executive power which was directly derived out of the people was exercised by the president.
So, keeping in mind that people’s sovereignty as the executive power was exercised by the president, one should read Article 30, and 44 of the constitution, he said.
Under Article 44(2), it provides as to how president can assign ministries to form the cabinet. This article provides also that he can keep the un-allotted ministries. Mr. De Silva said, this retention of the ministries itself was self explanatory as one can only assign or give something, only if it is repository. The president is the all executive repository power in the country, he said.
At this point, Justice Yasantha Kodagoda questioned whether it was sequel to the executive power conferred to the president. Mr. De Silva replied that it was the power that the president had ‘even in a worst case scenario if such assignment of ministries was obliged to be done by the president under the article 44(1), still those un-allotted ministries stay with him because, he had the power to have them previously’, he said. Justice Kodagoda also asked the counsel whether the constitution regulates the President to appoint the cabinet soon as he assumed duties?’
Romesh de Silva PC replied, ‘No, it has to be within a reasonable time. Sometimes politicians take some time to decide on the ministries, so such decisions may take a while, and until that time the President had the repository executive power to hold all ministries’.
However, during this submission, the court also pointed out to the fact whether there is a necessity on getting an interpretation from the Supreme Court over Article 44, as there was some different wording found in the English and the Sinhala text. However, counsel for the respondents said, there was no such requirement as it should be done only if there is manifestly ambiguous meaning in the article and therefore the court can decide on the matter.
One should read Article 30, and 44 of the Constitution