It remains a well-known fact that our Constitution is very much derived from the Westminsterian model and that the doctrine of the separation of powers very much regulates the manners in which the rules of our constitutional law are to be applied.

In the interaction between the Legislature, the Executive and the Judiciary of the English Constitution, it is clear that Parliament is supreme. It is very clear that in a democracy, U.K.-style, it is the legislature that gets the predominance in the exercise and process of law enactment: vox populi, vox dei ! So the question that arises here is whether the President should have delegated powers to the extent that he/she may override Parliament on the question of the dissolution of Parliament.

The consensus is No! It seems most opinion concur to the fact that the office of the President should remain an object of Parliament rather than its subject.

I have even heard of a worried opinion that the spectre of the ?Ve République? could be repeated if we are not careful.

So to everybody?s relief, the proposed amendments do not intend to extend the powers of the President to endanger the doctrine of the supremacy of Parliament.

The Prerogative of the Executive

The post of Prime Minister as head of government is an emanation of the legislative authority entrusted on Parliament by the electorate through democratic elections. Thus the PM is empowered through the electoral and democratic processes to take on the role of head of the Executive. Both the U.K. and the Indian

Constitutions recognize this executive power conveyed to the PM in the exercise of his function as head of government. Among his prerogatives, the PM is also empowered to dissolve government, reshuffle his cabinet and name new ministers. But he/she is not entrusted with the power to dissolve Parliament. He may make such recommendations to the Head of State (Queen/President). The ultimate power resides in the office of the latter.

Power of the President

Section 57(1)(a), as it reads today presents a serious constitutional lacuna in the interaction between the powers of the PM and those of the President. It seems to place a constitutional duty on the President to dissolve Parliament whether the PM resigns or not after a vote of no confidence. The proposed amendments of the Commission on Constitutional and Electoral Reforms will fill in this lacuna. They propose in the proviso of Section 57(I)(a) to add at the end : ?save that where the President has reason to believe that some other person is capable of forming a government with the confidence of a majority in the Assembly, he or she may decline the request of the Prime Minister and invite such other person to form a governement?.

These few words could now empower the President to use his discretion as to whether dissolve Parliament and call for new elections or to call somebody else who commands a majority in the House to form a new government. Thus reinforcing the democratic and and electoral process. We will here remind ourselves that John Major took on the job as PM in 1991 without an electoral mandate to be PM. Mrs Thatcher could no longer command a majority in the House and Major could and that was enough. The Queen constitutionally sanctioned his government and there was nothing ?illegitimate? nor ?anticonstitutional? about it.

Conclusion

The proposed amendments would only strengthen the already existing strong electoral and democratic process. The only change it will bring to the rules of constitutional law is that it will shift the President?s obligation to dissolve into a power of discretion. This may be a fundamental constitutional change.

So, to answer the question as to whether the President is being entrusted with new powers : the answer is Yes ! A discretionary one.

Vijay I. Ram LLB (Hons) GP.LL Dept. of Constitutional Affairs, Lord Chancellor?s Dept., UK