Resolving contradictions in 19th Amendment

Is going back to 19A sufficient? – Part II

by Jayampathy Wickramaratne, President’s Counsel

(First part of this article appeared yesterday)

The Nineteenth Amendment to the Constitution (19A), though now abolished, is an important milestone in our constitutional history. With the experiences under the Twentieth Amendment, there is growing support for going back to 19A.

President still powerful

The main changes made by 19A relevant to this article may be noted. The term of office of the President and the duration of Parliament were reduced to five from six years. The President could dissolve Parliament during the first four and a half years only if a two-thirds majority in Parliament requested a dissolution. The President appoints Ministers, Ministers who are not members of the Cabinet of Ministers, and Deputy Ministers on the advice of the Prime Minister. The President has no power to dismiss the Prime Minister. It is only Parliament that can remove the Prime Minister by rejecting the Statement of Government Policy or the Budget or passing a vote of no-confidence in the Government, resulting in the Cabinet of Ministers standing dissolved. The President shall not hold a Ministry. The incumbent President may assign to himself the subjects and functions of Defence, Mahaweli Development, and Environment and determine the Ministries to be in his charge for that purpose.

Despite reduced powers, the President remained quite powerful. He continued to be the Head of the Government and Head of the Cabinet of Ministers. The President would determine the number of Ministers and the Ministries and the assignment of subjects and functions to Ministers. In doing so, he would consult the Prime Minister only where he considered it to be necessary. He could also, at any time, change the assignment of subjects and functions and the composition of the Cabinet of Ministers. Secretaries to Ministries would also be appointed by the President without any consultation.

Emulating Hanuman

During the period of his Presidency, Sirisena used his powers to the fullest, especially after 2016 when his relationship with Prime Minister Wickremesinghe had broken down. He even refused to appoint Ministers as advised by Wickremesinghe, the best-known case being his refusal to appoint Sarath Fonseka as Minister of Law and Order.

Several names for approval by the Constitutional Council were sent by President Sirisena without any consultation. He surprised the legal community when he recommended a Judge of the Court of Appeal to be appointed to the Supreme Court over several senior Judges. When Sirisena recommended his Additional Secretary (Legal) for appointment to the Court of Appeal, the Bar Association of Sri Lanka wrote to the Constitutional Council to say that “the higher Judiciary requires a blend of academic and professional career Judges” and urged the Council to consider nominees suggested by the Chief Justice and the Attorney General. The Constitutional Council wasted no time in refusing approval in both cases.

One need not recount the unprecedented crisis resulting from the unconstitutional removal of Prime Minister Wickremesinghe, the appointment of Mahinda Rajapaksa in his place, and the dissolution of Parliament. When Rajapaksa was defeated in Parliament, resulting in the Speaker not recognising him anymore as Prime Minister, he did not budge mainly because he had the backing of the President. Then, 122 MPs challenged Rajapaksa and his “Ministers” in the Court of Appeal on the ground that the Cabinet of Ministers stood dissolved, and the Court of Appeal issued an interim order restraining them from functioning. Meanwhile, the Supreme Court declared the dissolution of Parliament unconstitutional. Yet, Sirisena would not appoint Wickremesinghe as Prime Minister. It was only after the Supreme Court refused to stay the interim order of the Court of Appeal that Rajapaksa “resigned”. Yet, Sirisena refused to appoint Wickremesinghe, in flagrant violation of the Constitution, instead offering Speaker Karu Jayasuriya and Sajith Premadasa the position. He finally relented and reinstated Wickremesinghe.

Sirisena was quoted as saying that if he had to go, he would go as Hanuman did, setting fire to Lanka. He almost did.

Competing powers at the apex of the State

The above shows that while 19A reduced the powers of the President, it also created two “competing centres of power at the apex of the State”, a phrase used by Dr. Colvin R. De Silva in the Constituent Assembly on 02 July 1971. Responding to the proposal made by J.R. Jayewardene that executive power be vested in a President directly elected by the people, Dr. De Silva warned against the danger of counterposing the Prime Minister chosen by the people who are sovereign against a President who is directly elected: “Let me put it directly and more strongly. You have the Prime Minister chosen by the people who are sovereign. Then, if you have a President, chosen also by the sovereign people directly through the exercise of a similar franchise, you have at the heart and apex of the State two powers counterposed to each other, each drawing its power from the same source, the sovereign people, but each drawing the power independent of the other.” No Constitution will be able to define adequately and satisfactorily the relationship between the two, he explained.

Apart from Sirisena’s personality traits and the breakdown of relations between Sirisena and Wickremesinghe, what contributed to the events described above was clearly what Dr. De Silva warned against, namely, the existence of two centres of power, both elected. Speaking in Parliament on 25 July 2019, the writer referred to Dr. De Silva’s warning and added that while what was happening was to be expected because of the competing powers of the President and the Prime Minister, the breakdown of relations of such magnitude was never envisaged.

(Anti-government media distorted the speech to say that the writer had said that it was never expected that 19A would be so bad, but that is another matter.)

To go back to 19A as it was is to go back also to two competing powers at the heart and apex of the State. That would be the case to some extent even if we are to go back to the Draft 19A Bill (which provided that the President would act on the advice of the Prime Minister) because the President would still be directly elected. If not shackled by Sirisena’s undertaking to the JHU that no amendment necessitating a referendum would be presented, 19A would have provided for Sirisena to continue as President and the complete abolition of the Executive Presidency at the end of his term in 2020.

Resolving the contradiction

As to the form of government, whether it should be parliamentary, presidential, or semi-presidential, renowned political scientist Arend Lijphart states that in countries with ethnic and other cleavages, the choice should be based on the relative potential for power-sharing in the executive. He prefers a parliamentary system, which is a collegial decision-making body, to the presidential one-person executive. Presidential elections are necessarily majoritarian in nature, and the system encourages the politics of personality and overshadows the politics of competing parties and their programs. He considers semi-presidential systems to be only a slight improvement, and such a system can make an even more powerful President as has happened in France. In a parliamentary form of government, the head of the state should not be elected by popular vote but preferably by Parliament. A popularly elected President, even with limited powers, may be tempted to be an active political participant, claiming to have a direct mandate which even the Prime Minister does not have, potentially transforming the system to a semi-presidential one.

Thus, going back to 19A is not sufficient. The inherent contradiction in 19A must be resolved in favour of Parliament, even if that would require a referendum to be held. A referendum is no doubt costly, but the political costs of retaining the Executive Presidency and that of going back to 19A without resolving its inherent contradictions are greater.