brand logo

The origins of the 19th Amendment

08 Aug 2022

  • Part I: Truths, lies, and silences in a Constitutional Amendment   
BY Ruwan Laknath Jayakody and Faizer Shaheid From the terra firma of the 17th Amendment to the Constitution to the malfeasance and derangement of the 18th Amendment to the Constitution and thence again towards the terra cognita of the 19th Amendment to the Constitution through the terra incognita of the proposed 22nd Amendment to the Constitution, Sri Lanka seeks to map out the no man’s lands of the 1978 Constitution. This article seeks to play the holy fool that transgresses the panacea of the 19th Amendment to the Constitution and its brave new world. The entire Maithripala Sirisena (incumbent Sri Lanka Freedom Party [SLFP] Chairman and Sri Lanka Podujana Peramuna [SLPP] “independent” Parliamentarian and former President) campaign for Presidency was ultimately based on the premise of abolishing the Executive Presidency and establishing good governance. They proposed a 19th Amendment to the Constitution to strike down the 18th Amendment to the Constitution introduced by former President and incumbent SLPP Government MP Mahinda Rajapaksa. The Sirisena campaign highlighted several key issues in the Rajapaksa regime and vowed to resolve the crisis within 100 days. Sirisena also promised to devolve power from the Executive Presidency to a more Parliament-oriented political structure. The 19th Amendment to the Constitution originally seemed as though it would actually fulfil the requirements; however, there was a question as to whether the 19th Amendment to the Constitution draft penned by former Attorney General, former Court of Appeal President, and former Chief Justice Sarath Nanda Silva PC and put forward by the National Council for a Clean Tomorrow (NCCT) headed by then-Jathika Hela Urumaya MP and incumbent Our Power of People Party MP Ven. Athuraliye Rathana Thera would actually fulfil these promises. It must also be highlighted that this draft by Silva PC and the NCCT was separate from the one that was presented in Parliament by the Government. In Sri Lanka, the primary source of the law is the Constitution and the Constitution has vested sovereignty in the people. The process works like a cycle, where laws would be set up by a Government elected by the people in Parliament, which would eventually lay the rules by which the people would be governed. What separates the Constitution from all other laws is that the Constitution is the mother of all laws of the country. It delves into the very machinery by which the entire system is governed and even establishes the mechanisms to be followed in setting up laws. An amendment to the Constitution essentially means a change in the process by which the people are governed. This is exactly what the 19th Amendment to the Constitution sought to achieve. There had been wide criticism following the enactment of the 18th Amendment to the Constitution, as it bestowed upon the President of the country, wide-ranging powers which would otherwise have been a more collective process. It had rendered the 17th Amendment to the Constitution, which had set up the Constitutional Council (CC), redundant. The NCCT which had drafted a version of the 19th Amendment to the Constitution has claimed that the draft sought to revive the CC which endeavoured to ensure the independence of the three organs of the State. The NCCT’s 19th Amendment to the Constitution draft focused on three prime segments. Firstly, it sought to redesign the role of the President of the country, secondly, it sought to introduce radical reforms to the electoral process, and thirdly, it sought to revive the CC with modifications to resolve the earlier failures ingrained in it. The devolution of Executive powers The primary focus of the draft was to embed a more intrinsic role where the powers inherent in the Executive Presidency would be performed without bias. In order to ensure that the Executive did not maintain absolute power over Parliament, the 19th Amendment to the Constitution draft proposed a number of reforms on the matter. The first of them was the imposition of a limitation on the office of the President. Section 2(4) of the draft read: “Any person elected or succeeding to the office of the President after this Amendment comes into force, shall, upon assumption of office, cease to be a member of any political party and shall be disqualified from being nominated as a candidate at any subsequent election to the office of the President”.  An ideal interpretation of this proposition was that the President would essentially be limited to a single term and shall cease to be a member of any political party. Also, what needs to be understood is the clause that reads “after this Amendment”. Although appearing to be rather clear-cut at the outset, the clause sought to ensure that any of the implications would only apply after the draft Bill has been passed.  As such, the provision could also be interpreted in a manner that allows a past President to contest for a further term. Speaking to the authors, Silva PC concurred with the opinion. The provision only applied to “any person elected or succeeding to the office of the President” regardless of who contests for the Presidency, meaning that it does not apply in retrospect.  It was possible to assume that some who had contested for two previous terms (such as Chandrika Bandaranaike Kumaratunga and Rajapaksa) could return to contest for a third term if the draft Bill was adopted. If however, a former President was to win an Election following the passage of this draft Bill, he/she would have had to contend with the fact that he/she is limited to a single term and no further terms. Such a President would also have to be content with putting aside all political affiliations until that point. There was also another argument. Since the proposed 19th Amendment to the Constitution draft was to be an improved 17th Amendment to the Constitution, which would also obliterate the 18th Amendment to the Constitution – in the context of the 1978 Constitution which limits a President to two terms and which was in the application during the 17th Amendment to the Constitution and the subsequent 18th Amendment to the Constitution, lifting the bar placed on the terms, allowing a President thereby to go for an unlimited number of terms – and the 19th Amendment to the Constitution draft making it a single five-year term for the President, the question remained as to whether Kumaratunga, by being bound to the 17th Amendment to the Constitution, is automatically disqualified from contesting and Rajapaksa, who is bound by the 18th Amendment to the Constitution, is automatically qualified to contest. Apart from this, there had been a further check on the Executive possessed at the hands of Parliament. It was none other than that of the prorogation and dissolution of Parliament. Section 14(1) of the draft read: “The President shall have the power to dissolve, prorogue, and summon Parliament by proclamation, provided that: (a) Subject to paragraph (2) of Article 62 of the Constitution, the Parliament shall be dissolved only in terms of paragraph (3) of Article 30 of the Constitution, and (b) Parliament may be prorogued only upon a resolution of the Parliament requesting such prorogation”. Further to this, the implications of certain provisions in the draft sought to ensure that the dissolution of Parliament would essentially conclude the term of the President as well. Section 3(4) of the draft suggested that a new provision would be included in the Constitution under Article 31, set to require that a Presidential Election be held simultaneously with a Parliamentary Election. If the draft Bill was passed, it would have essentially required that both the elections be contested at the same time.  This essentially indicates that if the President was to dissolve Parliament, it would effectively conclude his/her only term in office as the President of the country. When this provision is read in concurrence with other sections in the draft, it points out that the President would be taking a huge gamble when dissolving Parliament, and that such would therefore be a major decision to make. Apart from these checks, there appears to be no manoeuvring of the Constitution in terms of the impeachment of the President, which has been widely criticised by the masses and academics alike. Impeachment, which appears to be the only check placed by the Constitution which empowers Parliament to remove the President of the country, is a tedious process by which the impeachment motion would have to be passed by a two-thirds majority in the Parliament twice over, after having followed several procedures of investigation and obtaining a Supreme Court opinion on the matter. It has been described as a technically impossible process to strip a President of his/her power following a failed impeachment attempt to oust former President Ranasinghe Premadasa in 1991. The empowerment of Parliament The other check on the Executive would be in terms of the appointment of the Prime Minister and the Cabinet of Ministers. Articles 44, 45, 46, 47, 48, 49, and 50 of the Constitution currently deal with the aforesaid subject; however, Section 8 of the draft sought to amend such provisions in order to empower Parliament further. Soon after the Presidential Election at the time, Sirisena kept to his promise to appoint United National Party (UNP) Leader and incumbent President Ranil Wickremesinghe as the Prime Minister. The appointment was criticised due to its arbitrariness, but was nevertheless constitutional, as Article 43(3) of the Constitution is very vague in laying down the stipulations for the appointment of the Prime Minister.  Article 43(3) reads: “The President shall appoint as the Prime Minister, the MP who in his/her opinion is most likely to command the confidence of the Parliament”. Section 8 of the draft sought to amend the whole of Article 43(3) by removing the opinion of the President and imposing a stipulation that the President must consult the leaders of political parties and independent groups represented in Parliament, prior to appointing the Prime Minister.  However, there appears to be a complication in this provision. Section 8 of the draft proposed that the consultation with the aforesaid persons would be as the President deems necessary. What if the President deems such a consultation unnecessary? In such an event, would the President be empowered to appoint as the Prime Minister, the person who is most likely to command the respect of the Parliament, in his/her opinion? The question was posed to Silva PC, who in turn claimed that such a move would be a blatant abuse of power.  Silva PC however, refused to rule out such a possibility but went on to point out other checks in the draft that would counter such a move. Pointing at Section 8 of the draft, Silva PC pointed out that the Constitution would be amended in such a way that if the Statement of Government Policy or the Appropriation Bill (Budget) were to be rejected by Parliament, the Cabinet would stand dissolved and a new Cabinet headed by a new Prime Minister would be appointed in its place. This would essentially require that the President absolves himself/herself of all arbitrariness in the appointment of the Prime Minister. The appointment of the Prime Minister is however a lead task if the draft was to be adopted, as the portfolio of the President in being the Head of the Government would then be transferred to the Prime Minister. The President would then be limited in his/her power to appoint the Cabinet as Section 8 of the draft also requires that any such appointment should be in concurrence with the Prime Minister. The Cabinet would however be limited to a maximum of 25 ministers.  However, the President would retain the Ministry of Defence and run the tasks of managing the armed forces, the promotion of national reconciliation and integration, and the preservation of religious and ethnic harmony. He/she would also be empowered to direct any Minister who shall be delegated such a role in his/her place for a stipulated period. In his/her capacity as the Minister of Defence, the President would also be entitled to participate in Cabinet meetings. Another issue that has also been recognised is in terms of an amendment of Article 46(1) as requested by Section 8 of the draft. The provision in the proposed Article 46(2) per the draft reads: “The President is empowered to request from time to time, information from any Minister to ascertain: (a) The progress achieved in the completion of the respective stages in the programme of work, (b) The degree of transparency and propriety of the procurement processes; and (c) The response to public complaints and concerns expressed by the media and civil society groups”.  The proposed Article 46(3) in the draft continued further, stating that: “The President, after due evaluation of the response of any Minister, may, with the concurrence of the Prime Minister, remove such Minister from office and appoint a Deputy Minister or another MP to such office”. Although this is essentially a check on the Cabinet, the President’s ability to question the Cabinet of its actions proves that he/she may still have reasonable discretion in the appointment and removal of persons in the Cabinet. Section 8 of the draft further sought to add a check on the Legislature by recommending a “Right of access to information” clause in the draft. The Constitution was to be amended in such a fashion that there would be public disclosure of information in terms of the appointments made to the staff of the President and of each Ministry, under or outside the regular scheme of appointments of the Public Service Commission, and to boards of management or any State-owned corporations or in institutions or companies where the Government owns the majority stake. There would also be a requirement to reveal all the details pertaining to the exercise of power by the President or any transaction entered into by a Ministry or any Department under it. This could be deemed as a fantastic addition, which would empower the people to identify if any corrupt practices are taking place by those vested with power. Reasonable steps could then also be initiated by the people in pressuring the Government of the country to oust such persons from power. The Constitutional Council Section 5 of the draft spoke of setting up a Constitutional Council (CC), which had originally been introduced by the 17th Amendment to the Constitution. This Council had been dissolved in its entirety by the 18th Amendment to the Constitution, which sought to bestow all of the powers held by the CC upon the President of the country. The justification at the time was that there were considerable flaws that had led to disagreements in the CC. The draft sought to re-establish the CC, subject to modifications, in an attempt to ensure the independence of the key institutions run by the State. The Prime Minister, the Speaker of Parliament, the Leader of the Opposition, a representative of the President, and six other persons elected by MPs were to constitute the CC.  The draft also placed the procedure in the appointing of the six other persons in the Council and the operation of it.  The Amendment would be to Article 41A of the Constitution which would set up the CC, with the Speaker to act as its Chairman. His/Her role would be to ensure that the functions are performed without delay and interruption. In terms of electing the six representatives, the Speaker would be compelled to call on the apex bodies heading the key professions in the areas of law, medicine, engineering, and accountancy, and further include the body representing Vice Chancellors and Directors of Universities, the Chamber of Commerce, and any other bodies sufficiently represented at the national level in professional, academic, and commercial pursuits. Each body would be entitled to nominate two persons.  The persons nominated would have to be free of any political bias and must have been eminent and distinguished in their respective fields. There appeared to be an element of vagueness in this provision, as it did not adequately address the issue of what would constitute an apex body. Silva PC said that an apex body would be the chief representative body of a profession, such as the Bar Association of Sri Lanka (BASL) for the legal profession.  However, the complication arises in terms of the type of institution, such as the availability of other chief bodies monitoring and representing the profession. For instance, the Judicial Service Commission (JSC) also plays a key role in the legal profession and so does the Attorney General’s (AG) Department. Silva PC, in making a clarification regarding this vagueness, stated that the BASL addresses key legal issues faced by the legal profession, whereas the JSC and the AG’s Department play a more technical role, hence making the BASL the apex body of the legal profession. However, the issue would have had to be addressed in order to prevent further complications and delays which prevailed in the setting up of the original CC.  Further to this, another issue arises as to the number of other apex bodies that could match the requirements, the requirement being “any other bodies sufficiently represented at the national level in professional, academic, and commercial pursuits”. At this juncture, it needs to be understood that several key institutions exist to monitor several professions that fit the criteria in the draft. The information technology profession is now up and coming, schoolteachers are also in possession of an apex body, and many other chief professions could also fit the criteria. Nevertheless, each apex body would be capable of presenting two candidates to the Speaker for election to the CC together with their curriculum vitae (CV). The Speaker would then notify Parliament of the nominations received and their CVs, and an election would be held by secret ballot subsequent to this.  Silva PC opined that there was also the possibility of an apex body being represented by two members of the Council. If a vacancy or death arises during the term of office of any of the six representatives from the apex bodies, he/she shall be replaced by the next unelected person who had obtained the highest votes in the same election. Those elected would be eligible to hold office for a term of three years and could be reappointed by the President.  Herein lies a problem of arbitrariness again, as the President would hold the power to reappoint a person in the Council whom he/she favours. The issue had not been addressed adequately in the draft. A further issue faced in terms of the CC would be in terms of politicisation. Silva PC opined that in this day and age, not too many persons remain unaffiliated with any political faction and so too are persons in key positions in such professional bodies who are not politically motivated. In such instances, the issue arises as to how it could be judged whether a person is unaffiliated with any political institution, as most persons do hold affiliations and political biases despite the fact that details pertaining to such are not reflected in their CVs. Furthermore, in the draft, whilst the constitution of the CC is stated, the exact nature of its role, its scope, ambit, and mandate, for example, what particular appointments they will make, however, is not. This could be the result of the 18th Amendment to the Constitution completely removing the CC.    Several factors appeared to be in contention in regard to the said 19th Amendment to the Constitution draft, which would have needed to be addressed prior to the passage of the Bill. Several other factors would also have needed to be accounted for prior to the advent of an ideal democracy and good governance. A referendum would also have been required due to the various alterations which impinged on the sovereignty of the people. Nevertheless, the 19th Amendment to the Constitution appeared to be a good one and a major need in this day and age. Part 2 of this article will be published in a subsequent issue of The Morning.


More News..