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2018-04-03
The 19th Amendment (19A) to the Constitution of Sri Lanka was passed by the
225 member Parliament on 28 April 2015 (Three years ago) with 215 voting in
favour, one against and seven absent.
However, the President and his Unity Government did not achieve punishing
wrongdoers of the former Government and was also bogged down in curbing the
present members of the Unity Government following the footsteps of the former
regime.
The drafting commenced under the above scenario with the ruling coalition as
well as the Opposition that held a Parliamentary majority deliberating on major
issues.
The breakaway group of the UPFA that supported the President was in fact also
loyal to the deposed President.
Accordingly, the sitting President had to persuade his former party colleagues to
support his reforms and eventually the UPFA/SLFP executive committee elected
President Sirisena as Leader, which is still disputed by Rajapaksa.
However, the 19A disappointed people who wanted the abolition of the Executive
Presidency but this was more like a compromise possible within the present
balance of political power.
This Bill saw an important reduction of the powers of the President and
included that the PM was the head of the Cabinet and provided that the
President acted on his advice in appointment and dismissal of Ministers.
The presidential term is reduced from 6 to 5 years with the restoration of the
two-term limit, which was changed by the previous regime to unlimited terms as
in 18A.
In 19A the sitting President can seek re-election in four years in the first term.
Parliament’s term is also reduced to five years and the President cannot dissolve
Parliament until the expiration of four and a half years from 1 September 2015
(by 1 March 2020) unless the MPs request dissolution with a two-thirds majority.
These provisions restrict the President in his ability to act on his own and have
established fixed terms with separation of powers.
Immunity of the Supreme Court on Fundamental Rights will not apply to official
acts of the President.
The 19 A restricts the number of Cabinet Ministers to thirty and number of other
Ministers.
However, on the ground that the two largest parties represented in the present
Parliament have formed the Yahapalanaya Government, there was provision
made to enlarge the Cabinet by an Act of Parliament.
The 19A also removed political patronage of law enforcement as was done during
the Rajapaksa regime by categorically providing that the Attorney General and the
Inspector General of Police should retire on reaching the age of 60 years.
The above bill was released on 16 .3. 2015, on the orders of the Prime Minister.
This Bill saw an important reduction of the powers of the President and included
that the PM was the head of the Cabinet and provided that the President act on
his advice in appointment and dismissal of Ministers.
In 19A the sitting President can seek re-election in four years in the first
term.
Parliament’s term is also reduced to five years and the President cannot
dissolve Parliament until the expiration of four and a half years
The present Cabinet is top heavy with overlapping functions among the
members.
THE SUPREME COURT (SC) DETERMINATION ON 19A
A number of petitions were filed stating the 19A was unconstitutional taking
executive power from the President as enshrined in the Constitution.
The SC disagreed with the above and determined that the executive power
exercised by the President and the Cabinet was fundamentally the sovereignty of
the people and not something exclusive to and personal to individuals holding the
office of President.
Accordingly, the 19A provides to make the PM and Cabinet, and exercising
powers without the consent of the President is unconstitutional and will need a
referendum.
The SC also determined that as long as the President was the final authority the
execution of executive power on the advice of the PM or cabinet would be
constitutional.
On the above determinations by the SC, the earlier provisions contained in the
19A Bill referring to the PM and the Cabinet had to be removed at the committee
stage when the Bill was sent to Parliament and the changes were effected mainly
to avoid a referendum.
With the above changes, the President is the head of State, Head of the Executive
and the Government, and the Commander-in-Chief.
The President has to determine the number of Cabinet Ministers, the assignment
of subjects to Ministers and retains the power to appoint and dismiss Ministers.
In connection with all these powers, the President needs to only consult the PM
which he thinks necessary and the advice clause in the original 19A is very weak
where it was categorically stated that “where the President is required to act on
the advice of the PM “.
I have taken the liberty to quote from a research paper published by Dr Asanga
Welikala (ref. given at the end)
“Secondly, while a wide political consensus was built for democratic reforms, the
consensus is unlikely to extend to the state restructuring required to address
Tamil and other minority demands for devolution of power sharing. To address
these issues in the new constitution the government seeks to promulgate in the
next Parliament, it will need to spearhead a far more rigorous consensus building
process across the ethnic communities.
“Thirdly, the significance of personalities in Sri Lankan politics continues to extend
to Constitutional change while deeper philosophical differences about
Presidentialism and Parliamentarism between abolitionists and reformists played
a part, it is clear that the eventual compromise was decided more in light of how
Sirisena and Wickremesinghe might work together in the future.”
CONCLUSIONS
I have attempted to analyze the present status of the 19A to the Constitution and
the powers of the President in relation to the PM and the Cabinet.
It must be stated that there are a number of grey areas in relation to the
aspirations of power between the President, PM and the Cabinet.
A member of the Law Faculty of the University of Colombo states that the PM can
be removed, when he sends a letter to the President or if the PM is not a Member
of Parliament.
However, Clause 46 (2) of the Constitution states that the PM shall continue to
hold office throughout the period, which the Cabinet of Ministers continues to
function under the provisions of the Constitution.
It was also reported that a group of civic organizations as far back as February
2018 had gone to Court in response to the Supreme Court ruling with regard to
the President removing the PM.
It is evident that from media reports the President was planning to remove the
PM, six days after the Local Government elections.
However with the dilution of the 19A, as explained in this article, it is possible for
the PM to resign if he loses the confidence of Parliament.
The above provision is what the legal eagles of the Opposition argue will help in
ousting the PM by a simple majority of 113.
I do hope that eliminating the PM from active politics will not end the campaign
for human rights and minority rights in Sri Lanka or bring a totalitarian regime of
the former leader.
In this context, I am sad to state the President has become a pawn in the power
hungry and greedy politicians who are waiting to grab power as soon as possible.
The recent statements by SLFP/UPFA Ministers some of whom were even
rejected by the people at the last election are the most vociferous in removing
the PM.
Further, if the President was convinced that the PM collaborated with the
perpetrators of the CBSL on the Bond Scam as stated by his own Ministers from
the SLFP/UPFA, he could have removed the PM under the Constitution before
19A, which entered into force only in May 15, 2015 as the Bond Scam was
exposed in February 2015.
This action would have brought Mahinda Rajapaksa as the PM at the August
elections in 2015.
However, I am of the view that even if the NCM is a success it may result in legal
issues where the Judiciary may be involved for the final determination unless the
PM resigns on his own.
References
Dr Asanga Welikala ESRC teaching Fellow in Public Law at Edinburgh Law School
and Associate Director of the Edinburgh Centre for Constitutional Law and Senior
research fellow CPA Sri Lanka -“Sri Lanka :The Ninetieth Amendment to the
Constitution -from start to finish”- Journal of the International Institution for
democracy and Electoral Assistance (International IDEA)
(The writer is retired Economic Affairs Officer United Nations ESCAP and can be
reached at fasttrack@eol.lk)
Posted by Thavam