Under the 1978 constitution, it is possible that one party holds the office of the executive president while another commands a majority in parliament. Such a scenario existed briefly from August to December in 1994 when the PA won the general election that year.
President D. B. Wijetunga, who happened to be the UNP leader, co-operated with Chandrika Kumaratunga of the PA. Some said it was because he did not want the remaining period of his presidency to be tormented with problems caused by the PA or because of some other reason.
Although it was a short period, Ms. Kumaratunga knew that the President could, if he so desired, have called on her mother rather than herself to become the Prime Minister.
Ms. Kumaratunga knew that if such a thing happened a complicated situation would arise. Even at that time the struggle for power between the mother and the daughter had not ended. The daughter had thought that if her mother was invited to become the Prime Minister she (the mother) would accept it. Therefore, to prevent such a scenario, the daughter, reportedly met not only President Wijetunga but also the former President J. R. Jayewardene who was in retirement.
To avoid any confusion, President Wijetunga not only summoned the daughter and offered her the Prime Ministership, but also swore in a cabinet proposed entirely by her. He kept only the defense portfolio with him.
President Wijetunga did not want to become a headache to the PA government and he was able to retire in peace after the December 1994 presidential election in a manner that did not hurt the PA in any way.
However, had the period between the two elections been too long, say about two years, things would have been different. In such an event, President Wijetunga might have been willing to co-operate with the PA but still he could have been a headache to the PA and such a scenario would have led to a conflict rather than co-operation between the executive president and parliament.
If the UNP wins the December parliamentary elections, it has to live with a PA executive presidency for four years of political cohabitation.
The President is not in a position to co-operate with a UNP-majority parliament and government. She did not want such an eventuality in October when the no-confidence motion was to be taken up amidst mass defections from the PA. That is why she dissolved parliament and says she cannot function with a UNP-led parliamentary government.
In such a situation, the conflict between the executive president and parliament is inevitable as predicted by Dr. N. M. Perera in his critical analysis of the 1978 constitution.
Although the Alliance for Democracy – an ad hoc group formed during the political crisis preceding the dissolution of parliament – drew the attention of all political parties to the necessity of a constitutional amendment that would create an environment in which presidential power and parliamentary power could act in co-operation even when they are controlled by two different parties, it did not receive proper attention.
However, the President will be at a greater disadvantage in this conflict which may unfold after December 5.
Dr. N. M. Perera in his analysis of such a conflict said:
“How will the President deal with a parliament with an opposition majority which rises against the implementation of his/her policies? In such a situation the executive becomes inactive due to non-availability of funds. If the president who no longer represents the people does not leave, the entire state machinery is likely to become inactive and even the constitution and parliament are likely to be despised by the people, due to that reason.” (Page 24)
“This dilemma is no mere theoretical aberration. It is a conflict that will exist always and will finally even destroy the constitution.” (Page 22).
“Approval of funds necessary for expenditure and the recovery of taxes are a duty of parliament. If a parliament hostile to the president does not approve the funds necessary for administration the president becomes inactive.” (Page 60)
There are a number of ways in which a conflict between these institutions can end.
Although the President won the presidential election of ’99, a defeat of a PA government by the people at this parliamentary election may be considered an expression of the peoples’ will against the president as the head of the PA government and as the leader of the policies of that government. That will also annul her victory of ’99. In such a situation what should normally happen is to go for a Presidential election immediately. However there is no provision for it under the 1978 constitution.
In such a situation the President can resign from her office. If that happens the leader of the UNP could become president even without a presidential election. If the President does not resign and, unlike President Wijetunga, does not become a nominal President but follows a policy of using her power against the party which gets parliamentary power, there is a possibility that the people will consider it a rejection of their will and might rise against the President.
There is no basis in the President’s claim that even if the UNP wins she can call upon a person she likes rather than the leader of the UNP to become the Prime Minister.
This is what Dr. Perera said about it:
“According to the constitution the President must appoint as Prime Minister a person who is likely to have the majority support in parliament.” (Page 52)
In such a situation, although the executive president has no power to make a new parliament powerless, that parliament if it has sufficient strength can make the executive president powerless. It is parliament which has the power to control the finances as well the power to make constitutions.