The 19th Amendment and its implications | Daily News

The 19th Amendment and its implications

Part 2

Article 33 of the Constitution makes provision for powers and functions of the President. The 19th Amendment by Clause 5 has repealed that Article, and new Article 33 is substituted therefore under the title 'Duties, powers and functions of the President'. Further the 19th Amendment in Clause 5, partly repealed Article 33, by adding a new sub-article as the first sub article to Article 33, while re-numbering the existing sub Article 1 of Article 33, as sub Article 2.

The new sub Article (1) of Article 33, carried the achievement of a number of national aspirations as the duties powers and functions of the President. These were included under Clause 5 of the 19th Amendment. They included (a) to ensure that the Constitution is respected and upheld, (b) to promote national reconciliation and integration; (c) to ensure and facilitate the proper functioning of the Constitutional Council and the institutions referred to in chapter VIIA and (d) on the advice of the Election Commission to ensure the creation of proper conditions for the conduct of free and fair elections. Several other powers were given to the President in a new Article 33(2) regulating and providing for his links with Parliament.

Article 33 of the 1978 Constitution was further amended by the addition of a new Article 33A in Clause 6 of the 19th Amendment. By that Article 33A the President was made responsible to Parliament for the due exercise performance and discharge of his powers, duties and functions under the Constitution and any written law including the law for the time being relating to public security.

The Article 33A is important as a constitutional device to engage answerability of the President to Parliament, for his actions and for the exercise of his / her Presidential powers and obligations to those who hold the franchise for electing a President. Article 42 of the 1978 Constitution also imposes a responsibility of the President to prevent for the exercise of his functions under the Constitution and any written law. Under the 17th and 18th Amendments aforesaid Article 42 remained un-amended. It is also noted here that Article 42 of the 1978 Constitution is identical to Article 91 of the 1972 Constitution.

The President and the making of Cabinet of Ministers

Principally, the Cabinet of Ministers is charged with the responsibility of chartering the direction that the Government should take in guiding and controlling that chosen direction. (19th Amendment, Article 42(1)). By making the President a Member of the Cabinet as its Head, his function and his role in directing and controlling the government of the Republic subject to parliamentary control and is governed by Parliament.

The 19th Amendment places a constitutional limitation on the number of Cabinet Ministers that the President may appoint. In a new Article 46(1), the 19th Amendment limits the number of Ministers of Cabinet ranking to 30 and the number of Ministers without Cabinet ranking together with Deputy Ministers to an aggregate not to exceed 40. These numbers are applicable where there is a single party forming the Government. (19th Amendment, Article 41(1)).

The Constitution recognizes the formation of national government, when a recognized political party or an Independent group which obtains the highest number of seats in Parliament forms a coalition government among themselves or with other recognized political parties having numbers elected to Parliament (Article 46(5)). Where such a government is formed, then it is left to Parliament to determine the number of Cabinet Ministers, Ministers outside the Cabinet and Deputy Ministers that the President may appoint. (Article 46(4)). The President has a power to consult the Prime Minister regarding the structuring of the Cabinet of Ministers. But this appears from the wording found in Article 43(1) of the 19th Amendment that it is not a prerequisite but merely a power that the Constitution in the 19th Amendment gives him.

In the appointment of non-Cabinet of Ministers the President has an option of seeking the advice of the Prime Minister. It appears from the wording of Article 47(1) of the 19th Amendment that he may seek the advice of the Prime Minister only by way of an option left to him. Equally, the President has an option to consult the Prime Minister when assigning subjects and functions to the non- Cabinet Ministers appointed under paragraph (1). It therefore appears that the President's participation in the Cabinet making under the 19th Amendment is not necessarily consistent.

President's immunity: Section 35

The immunity of the President was found in both the 1972 Constitution (Article 23 (1) and the 1978 Constitution (Article 35). While Article 23(a) of the 1972 Constitution had two sub- Articles, Article 35 of the 1978 Constitution has three sub-Articles. It is noted here that the first two sub-Article of Article 35 of the 1978 Constitution are identical with the two sub-Articles of Article 23 of the 1978 Constitution.

In Kumaratunge v Jayakody and Another, the Court observed that Article 35(1) of the 1978 Constitution provided a wider ambit of immunity than the scope of immunity provided under Article 23(1) of the 1972 Constitution. It is suggested that narrower scope of immunity was sufficient to protect a President who had no executive powers but remained as an extension of the constitutional embodiment of the former Governor General (Kumaratunge v Jayakody and another). The President's immunity under Article 35 of the Constitution was limited to instituting proceedings de novo and the continuation of proceedings begun prior to swearing in as the President. Where the same person is elected as the President for the second term of office the immunity continues into that second term as well without a break in the continuity of his originally acquired immunity.

Some of the matters that fall under Article 35 of the Constitution may entail functions that must necessarily be performed by persons other than the President himself. These are persons such as the permanent Secretaries and other functionaries who carry-out the orders and respond to the request issued by the President. They are unable to claim the benefit of the immunity under Article 35. In this respect presidential immunity is quite unlike the judicial privilege available to functionary who executes a judicial order in good faith.

Article 35 has now been repealed and replaced by a new Article 35 found in Clause 7 of the 19th Amendment. Article 35 of the 19th Amendment has three sub-Articles. Article 35(1) has two provisos. The principal sub Article, 35(1) of the 19th Amendment adopts Article 23(1) of the 1972 Constitution. In two provisos to the main sub Article (35) the 19th Amendment, first excludes the application of President's immunity where a citizen claims by an Application to the Supreme Court, that under Article 126, there had been a violation of that citizen's Fundamental Rights. Such an action should be commenced against the Attorney-General. Second, proviso excludes from the Supreme Court its own jurisdiction to pronounce upon the exercise of the President's power to ‘declare war and peace' under Article 33(2) (g). That provision is found as a new sub-Article, also in the 19th Amendment, replacing the original Article 33 of the 1978 Constitution.

The President has no immunity from proceedings where his own election as President is being challenged or any matters pertaining to that election has given rise to any other legal proceedings, including any appeals that may result. (Article 130 (a) and (b)) Exception is also found in the amended Article 35(3) in Clause 7 of the 19 th Amendment where the President exercises his rights under Article 129, where: In all proceedings that fall under Article 35(3), included in Clause 7, of the 19th Amendment, the application of the presidential immunity is excluded.

Immunity does not render acts committed, obligations assumed duties breached, privileges and powers misused, in law, a nullity. It merely makes the person clothed with immunity been shielded from legal proceedings during the pendency of that immunity. Whenever that shield is lost and the person losses that immunity, the person becomes liable to legal proceedings for any and all liabilities incurred during the period in which he had protection of the community. Others are thereafter enabled to commence proceedings against a former President. Immunity therefore is a transient condition which the law provides to a selected group of persons.

The Constitutional Council

The Constitutional Council was first introduced in Chapter VIIA of the 17th Amendment. Chapter VIIA was inserted immediately after the last Article 41 of Chapter VII of the 1978 Constitution under the 17th Amendment. Apart from the above amendment, the 17th Amendment effected amendments to several other Chapters of the original 1978 Constitution. Constitutional Council was renamed in the 18th Amendment as "The Parliamentary Council". Besides that change the 18th Amendment maintained the general structure and the amplitude of its application in the manner in which it was found, originally in the 17th Amendment.

Prior to its enactment in the17th Amendment the suggestion of a Constitutional Council was made in the Draft Constitution of 2000 which was not adopted by the Parliament. When it was first enacted under Chapter VIIA of the 17th Amendment, the Council was comprised of ten members, while the membership of the Council under the 18th Amendment had been reduced to five. The 19th Amendment re-established the initial ten member council with the same composition of members, drawn from the same sources as it was originally established.

Aside from the Constitutional Council, the 19th Amendment in a Schedule, established nine Commissions. The 19th Amendment retained the same Commissions in the Schedules found in the 17th and 18th Amendment but added two extra commissions, in the 19th Amendment; namely: the Audit Commission and the National Procurement Commission.

The President shall appoint only on a recommendation of the Constitutional Council both the Chairman and the members to the nine Commissions named in the Schedule. (Ibid, 19th Amendment Clause 41B (6). Additionally appointments of officers to positions stipulated in Parts I and II of the Schedule and to Article 41C, of the 19th amendment shall be made by the President with the approval of the Constitutional Council. It was realized in the recent past that these provisions when implemented caused serious obstacles when exigencies services needed.

It is well known that how the constitution of Election Commission with three Members (quorum three members) in practice became a serious issue worsened further by one Member conduction on occasions partial role and going even to the Judiciary against the majority view of the Election Commission.

The IGP with allegations against him still cannot be removed by the President. Although the 19th Amendment gave wide powers to the Audit Commission, misuse of public funds and financial frauds appears to still remain. It is the general public perception that role of the Audit Commission is not up to the public expectations. The alleged political interference as reported also adversely affects the integrity and independence of at least some Commissions.

To be continued