“I don’t see anything good about 19th Amendment,” President Gotabaya Rajapaksa said when a media person asked him whether he would retain good clauses of the 19th Amendment to the Constitution. He said that he will abolish the 19th Amendment to the Constitution enacted by the Unity Government in 2015, if the necessary majority in Parliament is obtained at the general election.
When asked if he planned to move to a more parliamentary system as envisaged by the 19th Amendment passed by his predecessor, he said the 19th Amendment, which curtailed powers of the executive presidency and introduced term limits, had proved to be a “failure”, and should be scrapped.
“The 19th Amendment is a failure and if we get 2/3rds majority in parliament we will drop it from the constitution,” he said.
As he pointed out correctly, the unity government of President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe did not have the stability to govern the country successfully because of the confusion caused by the 19A. “For a country to be governed successfully, you need stability. This was not the case during the Sirisena-Wickremsinghe government, where they were fighting all the time and there was no development. Without stability, investors won't come.”
Executive President
The 19th Amendment to the 1978 Constitution was adopted on April 28, 2015 and it was hailed as a key policy achievements of President Maithripala Sirisena as he took pains to ensure its passing in the Parliament with 212 ‘Aye’s and only a single member opposing it.
Three and a half years later, the President, the Parliament as well as the entire nation was in utter confusion due to imprecise clauses in the 19th Amendment with regard to certain powers vested with the Executive President.
In October 2018, President Sirisena removed Prime Minister Ranil Wickremesinghe and appointed Mahinda Rajapaksa as Prime Minister and finally issue a Gazette Notification to dissolve the Parliament. It has resulted in much confusion as there is an uncertainty as to what is actually in the 19th Amendment in relation with the relevant clauses of the Constitution.
The UNP and its allies in several Fundamental Rights Applications have challenged the constitutionality of the dissolution of Parliament and the Supreme Court gave the verdict that President Sirisena’s action was a violation of the constitution as 19A had withdrew his executive powers to dissolve Parliament before completion of four and a half years of its 5-year term.
The Republican Constitution of vested sovereignty in the people and introduced an Executive Presidential system of government which was superimposed on a parliamentary system. President Sirisena, introduced the 19th Amendment to curtail some of his Executive Powers and devolve them to Parliament in order to fulfill his promise during the election campaign. Apart from reducing the number of years in a Presidential term from six to five, a clause was added to prevent the President from dissolving the Parliament until the completion of four and a half years of the Parliament’s term of five years. However the 19th Amendment failed to refer to the Presidential powers in different sections in the 1978 Constitution, thus creating many a lacuna.
On an earlier interpretation of the draft of 19th Amendment, the Supreme Court made it clear that the President was the ultimate repository for the executive power of people, and any amendments changing this structure would render the amendment inconsistent with articles 3 and 4 of the Constitution. If the amendment had replaced the prior office of President with a new office, this would have to be noted by the Supreme Court, who would have to declare the amendment inconsistent with articles 3 and 4.
Constitution Council and other Commissions
Similarly, the 19th Amendment changed the powers of the office of the President, rather than creating a new office. As several constitutional experts pointed out in addition to the reduction of the duration of the presidential term, certain other powers were vested with the Constitution Council and other Commissions.
Appointment of superior Court Judges was earlier vested with the President and the Supreme Court determined that the President’s powers were not unfettered and there should be cooperation between the Executive and the Judiciary in order to fulfill the objectives of the Constitution.
The 19th Amendment sought to reset the constitutional relationship between the President and Prime Minister and essentially vest some of the powers of the President in the PM and also curtail the powers of the President as regards the dissolution of Parliament. Although the first draft sought to make the PM as “Head of the Cabinet” and empower him to determine in lieu of the President, who instead had to act on the advice of the PM, the composition and appointment of the Cabinet and other Ministers and even changes thereto the Supreme Court clarified that such fundamental amendments require a two/third majority in Parliament and approval at a National referendum.
The draft bill proposed a fresh Article 33(3)(c) on powers that empowered the President to summon, prorogue and dissolve Parliament. The constitutionality of this Bill was challenged before the Supreme Court. In its Determination on the 19th Amendment the Supreme Court held that the transfer of power from the President to the PM including inter alia the PM being Head of the Cabinet and the President acting on the advice of the PM as regards appointment of the Cabinet was unconstitutional and required both a two-thirds majority in Parliament and a referendum.
Supreme Court
After the Supreme Court determination, the 19th Amendment was diluted what was in fact ultimately enacted was ambiguous as regards the powers and authority of the President and the PM/ Cabinet as regards appointment and dismissal. The reference to the PM being Head of the Cabinet was deleted and the transfer of power to the PM to determine the composition of the Cabinet which was to be appointed by the President on his advice was deleted.
The hurriedly drafted 19th Amendment contains many ambiguities and anomalies. Whilst the President’s Executive powers in this regard remained subject to some curtailment the anomalous position of the removal of the PM remained unresolved. The incompetent drafting in the 19th Amendment resulted in many lacunas and loopholes and it will be a tough task for the Supreme Court to interpret some of the clauses that are contradictory to some others.
The next Parliament to be elected in April/May 2020, must seriously consider effective measures to rectify the glaring anomalies in 19th Amendment by carefully drafting a new Amendment to the Constitution.
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