The 19th Amendment and its implications | Daily News

The 19th Amendment and its implications

Part I

No Constitution tries to putdown all the relevant rules relating to Constitutional Law. The draftsmen of written Constitutions are faced with the problem of how much to include. The draftsmen must ensure that they include fundamental principles and place some restrictions on an amendment so that Constitution will have some degree of permanence and will not be manipulated to suit the purposes of the party in power. The Constitution should not also make amendments to it too difficult because it will not be possible to adapt and mould the Constitution to suit changing circumstances or to apply to it for circumstances not foreseen by the draftsmen.

Chapter XII of the 1978 Constitution - Amendment of the Constitution - by Articles 82, 83 and 84 makes provisions for the amendment of the Constitution. The hurriedly drafted the 19th Amendment contains many ambiguities and anomalies resulting in the President’s executive powers in this regard remaining subject to restrictions. The 19th Amendment sought to reset the constitutional relationship between the President and Prime Minister and essentially vest, among others, some of the powers of the President in the Prime Minister and also curtail the powers of the President as regards the dissolution of Parliament. Although the first Draft sought to make the Prime Minister 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 Prime Minister, 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.

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 Prime Minister/ Cabinet as regards appointment and dismissal. The reference to the Prime Minister being the Head of the Cabinet was deleted and the transfer of power to the Prime Minister to determine the composition of the Cabinet which was to be appointed by the President on his advice was deleted.

The salient features of the 19th Amendment

It is also pertinent here to outline several salient provisions of the 19th Amendment as it has attracted much criticisms and generated plenty of controversy ahead of its abolition by the present Government.

• Inserting a long felt fundamental right of access to information as Article 14A in the FR Chapter of the 1978 Constitution.

• Elaborated list of duties, powers and functions of the President (Article 33 (1)).

• The limitation of number and tenure of office of Ministers and Deputy Ministers: For Cabinet Ministers maximum of 30 and non- Cabinet Ministers maximum 40 subject to exception. (e.g National Government).

• Official Oath and Affirmation as set out in the fourth Schedule and Seventh Schedule (Article 53).

• The five year term limits on both the President (Article 30(2)) and Parliament (Article 62 (2)).

• Banning election to the office of President more than twice.

Determination of the 19th Amendment Bill

Since the 19th Amendment judgement of the Supreme Court in 2015 elaborates authoritatively, among others, the scope of executive powers of the President and the structure in which the executive power is to be distributed, a brief overview of its reasoning is presented here at the beginning.

The Supreme Court noted in that judgement that ‘it has to be borne in mind that the sovereign people have chosen not to entrench Article 4. Therefore it is clear that not all violations of Article 4 will necessarily result in a violation of Article 3.

The Supreme Court emphasized the first two Articles - Article 42 and 43 - in Chapter VIII of the Constitution as being of crucial importance in describing the structure in which executive power was sought to be distributed. As the Court noted, firstly, in Article 42, President’s responsibility to Parliament for the exercise of executive power is established. Because the Constitution must be read as a whole, Article 4(b) must also be read in the light of Article 42. Therefore the Court argued that Constitution did not intend to the President to function as an unfettered repository of executive power unconstrained by the other organs of the governance.

Referring to Article 43 of the Constitution, the Court argues that “this important Article underscores that the Cabinet collectively is charged with the exercise of executive power of which the President is the Head”. The Court adds that “it establishes conclusively that the President is not the sole repository of the executive power under the Constitution. It is the Cabinet of Ministers and not the President alone”.

The Court also added that in terms of Article 30 of the Constitution, the exercise of Executive power is entrusted to the President as the Head of the Executive as the custodian of such power. Hence there Court made an important point as follows:

“There is no doubt that Executive power can be distributed to other via President. However, if there is no link between the President and person exercising the Executive power, it may amount to a violation of mandate given by the people to the President. If the inalienable sovereignty of the people which they reposed on the President in trust is exercised by any agency or instrument who do not have any authority from the President, then such exercise would necessarily affect the sovereignty of the people”.

The aforesaid reasoning of the Supreme Court led to the determination that Clause 11 of the 19th Amendment Bill (Article 42 (3), 43 (1), 43 (3), 44 (2), 44(3), 44 (5)) and paragraph 104 (5) © in Clause 26 would require the approval of the people at a Referendum in terms of the provision of Article 83 of the Constitution.

The Nineteenth Amendment was placed on the Order paper March 24, 2015. The draft was challenged before the Supreme Court under sixteen grounds. Based on that determination Parliament passed the 19th Amendment into Law on May 15, 2015. The 19th Amendment amends Constitutional provisions found in several separate previous Amendments. It amends several provisions found in the 1978 Constitution and found in several Amendments to that Constitution. Additionally, it introduces a number of new constitutional provisions.

The President of the Republic

In the 1978 Constitution, three Chapters namely, Chapter VII (the President of the Republic), Chapter VIII (Cabinet of Ministers) and Chapter IX (Public Service) deal with Executive organs of Government. The 1978 Constitution in Chapter VII deals with the President, as the repository of the ‘The Executive’ power of the State. The person so chosen as the President, was given the same powers in Section 3 of the 19th Amendment as those that he had under Article 30(1) of the 1978 Constitution which read:

‘There shall be a President of the Republic of Sri Lanka, who is the Head of the State, the Head of the Executive, and of the Government and the Commander-in-Chief of the Armed Forces’.

This sub-Article (1) of Article 30 represents a part of the ‘basic structure’ of the 1978 Constitution. Therefore no amendments to that Article could be made by merely adopting and following the requisites for amendments mentioned in Articles 82(5) or under Article 83; the latter requiring the holding of a referendum. The provisions contained in Article 30(1) of the Constitution were re-enacted without change under the same Clause 3 of 19th Amendment due to the correct realization that the Executive Presidency formed a part of the basic structure of the 1978 Constitution and therefore could not be changed through an amendment but must wait the re-enactment of a new Constitution.

There are two provisions that, Chapter VII of the Constitution enacts, which deal with the Executive Presidency. They are found in Articles 30(2) and 31(2) of the Constitution. First, Article 30(2) in its original form states that the ‘The President of the Republic shall be elected by the people, and shall hold office for a term of six years’. That provision is directly linked to Article 4(b) which deals with the exercise of the ‘executive powers of the people’ by the ‘President of the Republic’. Article 4(b) being an application of Article 3, falls under Article 83 and is entrenched. It requires the approval of the people at a Referendum, in addition to a vote of a two-thirds majority, by Parliament for its Amendment. However, the 19th Amendment, notwithstanding those requirements has amended that provision found in Article 30(2) without holding a referendum, by reducing the period for which a President may be elected to five years. To be continued