Kumaratunga-Wickremesinghe co-habitation: the first two weeks

N.M. Perera's Critical Analysis of the Second Republican Constitution which Batty Weerakoon quoted from copiously during the election campaign, argues that unlike in Presidential systems like in the USA and France, since there are enormous powers vested in the office of the Sri Lankan President, co-habitation is not possible. 

The Perera argument has much merit. But perhaps, given his ideological opposition to J.R. Jayewardene, the architect of the Constitution, he exaggerated the impact of certain authoritarian features in it. Certainly, co-habitation will be difficult as any forced co-habitation is. The challenge is for the Constitution, despite its flaws, to be worked, by the main political actors involved. President Kum-aratunga and Prime Minister Wickremesinghe have crossed the first few hurdles in their arranged marriage/co-habitation. The kapuwa, the voters of this country, can be reasonably pleased with the first weeks of their honeymoon.

It is important to read N.M. Perera with A.J. Wilson, one of Sri Lanka's most distinguished political scientists. Professor Wilson was an advisor to President Jayewardene and an admirer of the Presidential system. Co-habitation was always a possibility under the Second Republican Constitution. Under a hybrid Presidential-Parliamentary system like in Sri Lanka, where elections to the office of President and to Parliament are held at different times, this is no surprise. In his book, The Gaullist System in Asia-The Constitution of 1978, Wilson considered the options for a President confronted with a Parliament controlled by a different political party/alliance:

A number of possibilities might be envisaged given the various provisions in the Constitution of Sri Lanka. There could be a reversion to prime ministerial government with the President functioning as a constitutional head. Or the President can appeal to the people by dissolving Parliament. If the same result ensues, the President will have no option but to resign, or come to an understanding with the Prime Minister that he will not interfere with the workings of the government.

Wilson recognises the difficulties involved and accepts that there could be a constitutional crisis if the main political actors fail to work the Constitution. The point, however, is that such a crisis is not necessarily inevitable. 

As stated earlier, the first hurdles have been crossed. There was a concern that the President would not appoint Wickremesinghe as Prime Minister. The relevant constitutional provision specifies that the President shall appoint the person who in her opinion commanded the confidence of Parliament. What if she had appointed someone else in an attempt to divide and rule? A legal challenge may have been difficult given the obnoxious immunity provision. A negative vote on the statement of policy would have been the best response, but that would have taken time. The President, however, with little hesitation, appointed Wickremesinghe as Prime Minister.

Then take the appointment of the Cabinet. From a strictly legal point of view it is the President who allocates subjects and functions and appoints Cabinet Ministers, Ministers and Deputy Ministers. Consultation with the Prime Minister on these matters is not mandatory. However, in practice it was Prime Minister Wickre-mesinghe who did all of the above- allocation of subjects and appointment of personnel. Prime Minister Wickr-emesinghe is, therefore, responsible for the disappointing Cabinet both in terms of the division of functions and the persons appointed. Ministers of Western, Southern and Central Regional Development etc. in a context of devolution of power is absurd. 

The Education portfolios have no logical basis and in a situation where the postal services are in an absolute mess there is no Minister of Posts and Telecommunications! It is deeply disappointing that the Prime Minister did not follow the proposals of distinguished ex-civil servant, Shelton Wanasinghe or the more recent proposals of the Ceylon Chamber of Commerce on the rationalisation of Cabinet portfolios. 

Anyway, the point is that it is a Wickremesinghe Cabinet appointed by President Kumaratunga. The President decided not to assert her constitutional powers vis-à-vis the appointment of the Cabinet of Ministers. However, in a clever move she affirmed her powers by refusing to appoint S.B. Dissanayake as Minister of Samurdhi. With one small act of defiance, she reminded the Prime Minister and the country of her constitutional powers by affirming them in a limited way and in a manner which undoubtedly met with widespread popular approval.

The third interesting issue was whether the President who constitutionally is the Head of the Cabinet and a member of the Cabinet would attend meetings regularly and how she would preside at such meetings. Would there be formal Cabinet meetings with her in the chair, but would the real discussion on policy options and the state of the nation take place at an informal meeting of Cabinet ministers with Prime Minister Wickr-emesinghe in the chair. It is still too early to determine how this aspect of co-habitation will function, but it seems as if the President is keen to exercise her power to preside over meetings of sthe Cabinet. 

Therefore, we see that given the current political reality and a decisive vote against the People's Alliance at the parliamentary elections of 5th December, the President, aware of such a political context, has voluntarily and probably, temporarily, declined to assert many, but not all of her considerable constitutional powers. 

This does not mean that she may not decide to assert them at some time in the future, when the political context and dynamics change.

The President's particular animosity towards Ranil Wickremesinghe and her bitterness with the 'dissidents' are the most serious threats to the co-habitation arrangement. Prime Minister Wickremesinghe 's skills of governance, leadership and indeed, conflict resolution will be tested to the maximum in how he deals with the President. It is probably in his interest to seek to involve President Kuma-ratunga in his peace initiatives so that the Kumaratunga -Wickreme-singhe Government will share the responsibility for the enormous challenges involved in embarking on such a process and also share the credit for any successes accomplished.

Kumaratunga and Wickremesinghe may not particularly like each other, but they both belong to the liberal wings of their respective parties on the primary issue facing the country, the ethnic conflict. If a political solution that meets Tamil aspirations and is based on justice and dignity for all Sri Lankans is to be negotiated, implemented and accepted by the people, their cooperation and joint leadership is essential. A Kumaratunga-Wickr-emesinghe Government may be Sri Lanka's last chance for peace in a united country. 

The writer is a Senior Lecturer in Law at the University of Colomb o

The List of Presidential Powers

* Head of State, head of the Executive and of the Government

* Commander- in- Chief of the Armed forces

* Appoints Ministers of the Cabinet with no obligation to consult the Prime Minister

* Heads the Cabinet and presides over the meetings of the Cabinet of Ministers

* Dismisses the Prime Minister and the Cabinet of Ministers

* Decides the number of ministries and their distinct functionsa

* The President can assign to himself/herself any portfolios or function

* Appoints all secretaries to ministries

* Can change the assigned subjects and the composition of the Cabinet

* Enjoys limited powers over government finances that enables the President to dissolve Parliament and run the country for several months without Parliament

* Can summon, prorogue and dissolve Parliament

* Immune from prosecution while holding office

* Empowered to make the Government policy statement at the commencement of Parliament sessions

* Presides over ceremonial sittings of Parliament

* Receives, recognizes and appoints ambassadors and high commissioners

* Retains the Public Seal of the Republic

* Appoints the Chief Justice and Judges of the Supreme Court, Chairman of the Appeal Court, High Court Judges and Judges of the Appeal Court, the Attorney General, Commanders of the three Armed forces and the Inspector General of Police 

* Declares war and peace

* Grants Presidential pardons to convicted offenders convicted within the Republic, grants any other respite or substitute punishments

* Can submit Bills directly to the people by way of a Referendum

* Appoints Presidential Commissions

* Appoints Governors for the Provinces

* Dissolve Provincial Councils and bring them under Presidential rule