It has now been officially announced by the government that parts of the 19th Amendment are to be repealed even before a new Constitution is introduced. Our present Constitution has been amended on 18 occasions and not on 19 occasions as the numbering system may lead us to believe. The 12th Amendment is a dud entry and there is no such Amendment in the Constitution. Among the 18 actual amendments that we have had, some are useless like the 6th Amendment which was supposed to stamp out separatism, but has proved to be abysmally ineffective when compared to the piece of legislation it was supposed to modeled on – the 16th Amendment to the Indian Constitution. Some like the 15th Amendment which facilitated the fragmenting of political parties on ethnic and religious lines were counter-productive. Some like the 17th Amendment were ill conceived, confused and even comically tautological, being designed to take powers over high state appointments out of the hands of the politicians and give it to unelected individuals nominated by the political parties in Parliament. But by far the least well thought out Amendment of all was the 19th Amendment.
Ironically, at this moment when its repeal has been placed on the agenda, the biggest problem in the 19th Amendment which had a serious impact on the day to day governance of the country during yahapalana rule, has become largely irrelevant under the Rajapaksas. The problem most often mentioned with regard to the 19th Amendment was the creation of dual centers of power with the Prime Minister also having a share of executive power. During the five years of yahapalana rule, the effect of these provisions of the 19th Amendment were amplified by the fact that the President and Prime Minister were leading their own political parties and working to their own agendas. The way the 19th Amendment bifurcated executive power was by article 43 where the President was to have the power to determine at his discretion the number of Cabinet Ministers and the Ministries and the assignment of subjects and functions to such Ministers, but in the appointment of individual MPs to those ministerial positions the President was mandatorily required to act on the advice of the Prime Minister.
Thus the Prime Minister’s hold on power depended on his role as the effective appointing authority of Ministers. This was all that remained of the attempt made in the original 19th Amendment Bill which had sought to make the Prime Minister the head of the Cabinet of Ministers and to give the Prime Minister the power to determine the number of Cabinet Ministers and the assignment of subjects and functions to them. Such provisions were struck down by the SC on the grounds that they will require a referendum in addition to the two thirds majority in Parliament. All that remained standing was Article 43(2) which said that the President has to act on the advice of the Prime Minister in appointing MPs as Ministers.
At this moment, because two Rajapaksa brothers hold the positions of President and Prime Minister, and there always has been a fairly well-defined division of labour between them, the country does not feel the effects of this provision. Nobody else other than the Rajapaksa family can run the country effectively while such a bifurcation exists. If the Rajapaksas are defeated at a future election and a different political party captures power, the new President and Prime Minister would be at loggerheads from day one. Ironically the fact that Maithripala Sirisena and Ranil Wickremesinghe were leading two different political parties may have in fact have introduced an element of restraint into the conflict between them because the nomination of MPs as ministers would take place on the basis of formal negotiations between two well defined political parties. However, if the President and Prime Minister were from the same political party, such decisions would be made in a backdrop of intrigue, infighting, and factionalism. Conflict between the number one and number two in the party would not only impact on day to day governance, it could also have serious consequences for the unity of the party concerned as well. What the 19th Amendment did was to make the number one subordinate to the wishes of number two in appointing ministers.
A President without portfolio
Another problem in the 19th Amendment which did not affect Maithripala Sirisena but has dogged President Gotabhaya Rajapaksa from the very beginning is the apparent inability of the President to hold any portfolio under the 19th Amendment. We use the term apparent here because there is no express prohibition in the 19th Amendment on the President holding portfolios. The supposed prohibition is by implication. Before the 19th Amendment, there used to be Article 44(2) in the Constitution which stated that the President may assign to himself any subject or function and shall remain in charge of any subject or function not assigned to any Minister. That provision was dropped when the 19th Amendment repealed and replaced Chapter Eight of the Constitution. There was also a transitional provision in the form of Section 51 of the 19th Amendment Act which stated that notwithstanding anything to the contrary in the Constitution, the person holding office as President on the date of commencement of this Act, so long as he holds the office of President may assign to himself the subjects and functions of Defence, Mahaweli Development and Environment.
The disappearance of the old Article 44(2) and Section 51 of the 19th amendment Act together are taken to imply that the President now cannot hold any portfolio. If someone poses the question, was the intention of the framers of the 19th Amendment the prevention of Presidents after Maithripala Sirisena from holding cabinet portfolios, the answer will be yes. Then the question that arises is, why was that point not specifically spelt out in the 19th Amendment? One would think that if some party wanted to amend the powers of the President they would do it boldly and up front and not try to do it circuitously and by implication. The reason why a prohibition on the President holding portfolios was not expressly included in the 19th Amendment is probably because the Supreme Court would have struck it down just as they struck down so many other explicit provisions which were meant to reduce the powers of the President.
The SC stated in their Determination on the 19th Amendment that “the transfer, relinquishment.or removal of a power attributed to one organ of government to another organ or body would be inconsistent with Article 3 read with Article 4 of the Constitution. Though Article 4 provides the form and manner of exercise of the sovereignty of the people, the ultimate act or decision of his executive functions must be retained by the President. So long as the President remains the Head of the Executive, the exercise of his powers remain supreme or sovereign in the executive field and others to whom to such power is given must derive the authority from the President or exercise the Executive power vested in the President as a delegate of the President.”
Thus this provision to the effect that the President cannot hold a portfolio has been brought in through the back door by implication by arranging for certain provisions to be silently dropped and inserting transitional clauses which suggest that the President succeeding Maithripala Sirisena cannot hold any portfolio, not even the defence portfolio. Nobody knows how this supposed restriction on the President’s ability to hold protfolios would have fared if challenged in the Supreme Court. There is no dispute about the fact that the framers of the 19th Amendment wanted to ensure that no President after Sirisena should hold any portfolio, but is that intention consistent with the Constitution even as it stands after the 19th Amendment?
Even after the 19 A, the Constitution says in article 30(1) that the President is the Head of the State, the Head of the Executive and head of the Government and Article 42(3) states that the President shall be a member of the Cabinet of Ministers and shall be the Head of the Cabinet of Ministers. Furthermore, Article 4(b) states that the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President. This leaves many questions hanging in the air. If the President is the head of the Cabinet and a member of the Cabinet, what is his portfolio? The Constitution does not expressly forbid him from holding a portfolio nor does it specify that he has to be a minister without portfolio. If the President is supposed to exercise power over the defence of Sri Lanka, as Article 4 states, can he do it without holding the defence portfolio?
Under the 1946 Constitution it was specifically stated that the head of the government (the PM) would hold the defence portfolio. Since then every head of government up to 2019 has in fact held the defence portfolio. Some speculate that if this issue of the defence portfolio and the Presidency is raised in the Supreme Court, the likelihood is that the SC would hold in favour of the President being empowered to hold the defence portfolio firstly because there is no express provision against the president holding a portfolio and secondly because Article 4 specifically states that the president is to exercise the power of the defence of Sri Lanka.
The most dangerous aspect of the 19th Amendment is the total prohibition on the dissolution of Parliament until the lapse of four and a half years unless a resolution to that effect is passed by Parliament with a two thirds majority – which unlike the issue of whether the President is entitled to hold portfolios, has been explicitly stated in the 19th Amendment. Before the introduction of the 19th Amendment, Article 70 of the Constitution stated that the President could dissolve Parliament at his discretion. The only restriction on this power was if the last parliamentary election had been held as a consequence of the President having dissolved Parliament at his discretion, he could not dissolve the next Parliament until the lapse of one year from the date of that Parliamentary election. This was obviously a safeguard against the repeated dissolution of Parliament by a President. Under the old Article 70, Parliament could dissolve itself by a resolution passed by a simple majority. If the budget is defated the President may dissolve Parliament but it was not mandatory. However if the Budget was defeated for the second time, the president was mandatorily required to dissolve parliament.
All that has been changed by the new Article 70 which was introduced by the 19th Amendment. Now, under the new Article 70 the President cannot dissolve Parliament until the expiration of a period of not less than four years and six months from the date appointed for its first meeting, unless Parliament requests the President to do so by a resolution passed by not less than two-thirds of the whole number of Members (including those not present). This is undoubtedly the most dangerous provision in the 19th Amendment. What will happen to this country if the President is unable to dissolve parliament or to maintain a majority in Parliament? In 2001, President Chandrika Kumaratunga dissolved Parliament when she knew she was losing her parliamentary majority due to defections. A Parliamentary election was held and a UNP government came into power thus ensuring that the country was not left rudderless. After President Gotabhaya Rajapaksa was elected in November 2019, he had to wait only three and a half months before he was able to dissolve Parliament. If he had been forced to wait longer, we would have had a situation where the President of the country did not have a majority in Parliament to govern the country in accordance with the mandate he received.
Unless the present Article 70 is changed, there will be the looming threat of anarchy hanging over this country like the proverbial sword of Damocles. If some say that the President should not have the discretionary power to dissolve Parliament at any time he wishes as was the case under the 1978 Constitution, then at the very least Parliament should have the ability to dissolve itself with a simple majority the same way it passes most laws in the country. Most importantly, there has to be room for Parliament to be dissolved in the event a no confidence motion is lost by a government in power or a government in power loses the budget thus displaying its inability to govern. To have an explicit provision in the Constitution which makes it impossible for Parliament to be dissolved even in such circumstances, is to court disaster. Even if the President is vested with the discretionary power to dissolve Parliament, no President will take such a decision lightly.
During the entire duration of the 1978 Constitution, the President’s power to dissolve parliament was misused in an obvious way only when President Chandrika Kumaratunga dissolved Parliament in 2004. That single instance of abuse was the reason why this prohibition on the dissolution of Parliament was brought in. Firstly, you cannot formulate constitutions on the basis of knee-jerk-reactions. Secondly, even if the President’s powers over the dissolution of Parliament are restricted, the constitution has to be flexible enough to allow the dissolution of Parliament on the basis of events taking place within Parliament such as when governments lose no-confidence motions or are unable to get budgets or statements of government policy passed.
Questionable Constitutional Council
The Constitutional Council is a centerpiece of the 19th Amendment. In fact the Constitutional Council and the so called independent commissions that went with it was the main feature of the 17th Amendment that was passed in 2001. For two decades, the foreign funded NGOs in Sri Lanka have been obsessed with the idea of taking power away from the elected representatives of the people and appropriating it for themselves. The prevailing view being that the elected representatives on both sides of the political divide could not be expected to do the right thing when it came to making important state appointments. When the 19th Amendment was passed, stiff resistance by the UPFA managed to keep the number of non-Parliamentarians on the ten member Constitutional Council at three instead of the originally intended five. Even though the number of outsiders was kept at three, due to the manner in which the yahapalana government and yahapalana opposition colluded with one another in stuffing the CC full of yahapalanites, all the independent commissions and other positions with some rare exceptions were filled with pro-yahapalana appointees and a considerable number of them were from the foreign funded NGO community.
The whole thing was a disaster from the beginning with some of the officials appointed by the Constitutional Council such as the former IGP proving completely unsuited to hold that position. Prof. Ratnajeevan Hoole who was appointed to the Elections Commission would certainly have been suited for some other high office but not that of a member of the Elections Commission. The biggest failure of the Constitutional Councils appointed under yahapalana rule in 2015 and 2018 was that they failed to convince the public that they were politically impartial. The whole purpose of the Constitutional Council should be revisited. Above all else the three non-parliamentarians on the CC should be got rid of. A body made up of MPs from both sides of the divide in Parliament headed by the Speaker so as to bring some collegiality into the process of making high appointments, would be a less objectionable arrangement.
The purpose of having so called independent commissions for some purposes should be reconsidered. The Police Commission for example, was set up so that the appointment, promotion, transfer, disciplinary control and dismissal of police officers other than the Inspector-General of Police, would be vested in the Commission. However, the Commission was mandatorily required to exercise its powers of promotion, transfer, disciplinary control and dismissal in consultation with the Inspector-General of Police. Was this just a case of making more complicated a function that was best left to the head of the institution – the IGP – in a straightforward manner? The police have a function to perform as a collective entity and can they afford to be hamstrung by an external bureaucracy imposed upon the institution?
There is a constitutional requirement that one member of the Elections Commission has to be a retired senior member of the Elections Department. There is a dire need to ensure that the other two members of the Elections Commission are selected only from among senior members of the public service with over 25 years of experience of serving under various governments. Such individuals would be much less inclined to politicize the Elections Commission the way Prof. Ratnajeevan Hoole did, at enormous cost to the credibility of the commission he served on. Some sections of the 19A are to be dropped while others are to be retained according to the announcements made by members of the government. Actually, there’s more that needs to be dropped than retained!