KAMALIKA PIERIS

The 19th amendment to the Constitution of Sri Lanka was passed on 28 April 2015 just four months after Yahapalana government came into being. It was passed near unanimously. Only one person voted against, Rear Admiral MP Sarath Weerasekera. 

Information on how the 19th Amendment was drafted has now come into the public domain.  A cabinet subcommittee headed by Prime Minister Wickremesinghe had initiated the project  and a committee was appointed to draft the Amendment .This committee, according to President Sirisena, consisted of Jayampathy Wickremeratne, M. A. Sumanthiran, Pakiasothy Saravanamuttu and the NGO community. Jayampathy was put in charge of drafting the Amendment.

The purpose of the 19th Amendment was to transfer executive power wholesale to the Prime Minister Ranil Wickremasinghe.  The initial draft, circulated only to a select few, in March 2015, declared that the Prime Minister would be the Head of the Cabinet of Ministers and that   the President shall act on the advice of the Prime Minister regarding the functions assigned to a Minister.

This draft had received Cabinet approval.   The draft was then made available to other political parties and once they studied it there was a discussion at the Presidential Secretariat chaired by President Sirisena, where many found fault with several provisions. They   totally opposed the move to empower Prime Minister at the expense of the President.

Prime Minister Wickremesinghe had been really upset said Jayampathy. Rajiva Wijesinha described this in greater detail. Ranil started to whine, said Rajiva. Ranil then said that he would complain to Chandrika since it had been agreed earlier that Ranil would have executive power. But everyone else was adamant. It was decided instead that the draft should reduce the President’s powers in several particulars, without the wholesale transfer of them to Ranil as Ranil had wanted, concluded Rajiva.

There had also been a special Cabinet meeting and consultations with several officials, as well, including the Attorney General and the Legal Draftsman. These led to further changes. But those supporting Ranil Wickremasinghe did not give in easily. The draft that was gazetted retained the provisions about the Prime Minister being the Head of the Cabinet, and about the Prime Minister determining the number of Ministers.  But Supreme Court squashed this. The Supreme Court wanted certain other sections altered too. These clauses were later brought into the 19A through the back door contrary to the Supreme Court ruling, complained President Sirisena.

19th Amendment contains a few welcome provisions. These have been included to make the Amendment looks good. These welcome provisions include the Right to information, (Article 2 of 19th Amendment) reduction of the term of Parliament from six to five years, (Article 3) and the limit of two terms for any one President (Article 4). Two new independent commissions were created, for Audit and for National Procurement.

The 19th Amendment also has certain laughable contradictions. One clause said President can dissolve Parliament and another clause said he could not. One clause said the President was the Head of State and another clause said he was answerable to Parliament.

 The 19th Amendment has been declared to be a great improvement to the Constitution. Yahapalana admirers say it has brought democracy into an otherwise dictatorial country. It has done nothing of the sort. 19th Amendment contains provisions that seriously violate democratic and sovereign rights.  Let us look at some of these questionable provisions of the 19th Amendment.

19th Amendment created a Parliament that cannot be dissolved. Until the 19th Amendment came, the President could dissolve Parliament at any time after it had functioned for one year.But after the 19th Amendment was passed, Parliament could not be dissolved by President until   four and half years of its five year period, had passed.  During those 4 ½ years, only Parliament could dissolve itself.  Two- thirds of the Parliament had to pass a resolution requesting dissolution.

This is a unique clause, which is not found in other constitutions. All constitutions have provision for the dissolution of Parliament by the head of state. In France the President of the Republic may, after consulting the Prime Minister and the Presidents of the Houses of Parliament, declare the National Assembly dissolved.

 There cannot be such a thing as a Parliament that cannot be dissolved but that is what we have today, said Chandraprema. Only Norway has a Parliament that cannot be dissolved until its five-year term is up. That is because in Norway, the government continues in power until the King gives them permission to leave.

Yahapalana government also wanted to see Ranil Wickremasinghe continue as Prime Minister. 19th Amendment said that the Prime Minister once appointed by the President, cannot be removed thereafter.  He leaves his office only if he resigns or ceases to be an MP. This is an outrageous provision.  In all other constitutions, whether parliamentary or republic, there is provision of some sort for the removal of the Prime Minister.

19th Amendment wanted to reduce the powers of the President. As a start, the 19th Amendment created a set of duties” for the President. This is the first time that Duties” have been assigned to the President of Sri Lanka, said admirers of the 19th Amendment. Duties were not specified anywhere in the constitution before, they said.  That is not surprising.  In any public office, ‘duties’ are implied in the ‘powers’ given to the officer. Powers’ lead to ‘functions’ which lead to ‘duties.’

The first duty” of a President of a country, surely is to ensure law and order, good governance, general welfare. But the duties given to the President in the 19th Amendment do not refer to any of this.

The duties of the President as given in the 19th Amendment are, One, uphold the Constitution, Two, look after the Constitution Council, Three, see to national reconciliation and Four, see that the elections are carried out properly.” The more important functions of a President, that of summoning and dissolving parliament, announcing government policy, declaring war and peace   come second to this absurd concoction .

There is also a serious violation of sovereign powers, in the 19th Amendment. 19th Amendment says There shall be a President of the Republic of Sri Lanka, who is the Head of the State, the Head of the Executive and of the Government and the Commander-in-Chief of the Armed Forces.”  Then it states that President is answerable to Parliament for everything he does. The President shall be responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution and any written law,” (Article 6 of the Amendment).

  Analysts hooted at this. This meant that Executive branch of government, (President), now came under the legislative branch, (Parliament), they said. They pointed out that Legislative and Executive power are exercised separately.  The Constitution, says   (a) “the legislative power of the People shall be exercised by Parliament, (b) “the executive power of the People, shall be exercised by the President of the Republic.

Then it was the turn of the Cabinet.  19th Amendment said that the Cabinet was also answerable to Parliament. The Cabinet of Ministers shall be collectively responsible and answerable to Parliament” it said. Critics pointed out that this also was not possible. The 19th Amendment itself had said that President shall be a member of the Cabinet of Ministers and shall be the Head of the Cabinet of Ministers.” So the Cabinet was part of the Executive branch of the government and came directly under the President

It is argued that the 19th Amendment created two power centers, one in the hands of the President and the other in the hands of the Prime Minister. That is incorrect. 19th Amendment does not give power to Prime Minister .Any power  exercised by Prime Minister Ranil Wickremasinghe was done outside the 19th Amendment . 19th Amendment keeps certain important powers in the hands of the President. Cabinet of Ministers derive their powers and function as agents of the President.

The President appoints the Cabinet. He is free to decide on the number of Cabinet ministers, and the subjects they hold. He can create ministries as he wishes. He could “at any time change the assignment of subjects and functions and the composition of the Cabinet of Ministers”. He could dismiss Cabinet ministers. He summons Cabinet meetings. 

There is now open opposition to the 19th Amendment. President Maithripala Sirisena has declared that the 19th Amendment to the Constitution was a curse on the country” and should be abolished. The country should have only one leader. Either you must completely abolish the Executive Presidency and give powers to Parliament or give enough powers to the President.          

Milinda Moragoda said it is now apparent to all that the 19th Amendment has created a dysfunctional governance structure in which the Executive President, although directly elected by the people, does not carry much power. He suggests transforming the Executive Presidency into a viable institution with adequate checks and balances. (Continued)