By Laksiri Fernando –
The proposed 19th Amendment, a draft of which is now available for discussion, will definitely be a watershed in democratic transformation in Sri Lanka and vindicates the mandate given by the people to the newly elected President Maithripala Sirisena and his UNP/SLFP/JHU coalition government. The Amendment intends to change, among other democratic measures, the much controversial and problematic executive presidential system.
The Amendment introduces a Council of State and reintroduces the Independent Commissions and host of other measures to safeguard and promote democratic transformation in the country. This article is a first glance effort to support and encourage a national discussion on the subject.
Chapter I of the Constitution on ‘the people, the state and sovereignty’ thus will be amended in respect of the exercise of sovereignty by repealing the existing 4 (b) and substituting the following.
“The executive power of the People, including the defence of Sri Lanka, shall be exercised, in the manner hereinafter provided, by the President of the Republic elected by the people.”
It is in the ‘manner hereinafter provided’ that makes the present presidential system changed under the available circumstances and possibilities.
Article 30 of the JRJ Constitution is completely repealed for this purpose and substituted with a new. The President no longer will be the Head of the Government. He or she would remain the Head of the State, Head of the Executive and Head of the Armed Forces. Head of the Executive here mainly means the permanent executive of the State and not the political executive, to mean the Government.
In this respect, there is an element of ‘separation of powers’ in the executive sphere, the permanent executive, to mean the state bureaucracy or the public service, coming under the President, however it will mainly be functioned under Independent Commissions except the armed forces. There is some novelty in the constitution in this respect. This could be controversial from a point of view of stripping the President of all powers, but the rationale of which will be attributed to the prevention of political interference in the public service or the state bureaucracy.
The term of office of the President is curtailed to five years. It is strictly limited to two terms and thus this amendment supersedes the 18th Amendment in this respect and also in respect of independent commissions. This is by amending Article 31. Nevertheless, the President will remain as an elected President.
By amending Article 31, another new feature is introduced to the Constitution. If there is a vacancy in the office of the President due to death, it is no longer the Prime Minister who would be acting but the Chairperson of the Council of State. The Chairperson of the Council of State also is the person who would act on behalf of President’s absence or illness.
Duties of the President
Article 33 is also completely repealed with a new. It might be important to quote the innovative sections of the new Article 33.
1. The President shall be the symbol of national unity.
2. It shall be the duty of the President to:–‐
(a) Ensure that the Constitution is respected and upheld by all organs of Government, as provided for by law;
(b) Ensure and facilitate the preservation of religious and ethnic harmony;
(c) Promote national reconciliation and integration;
(d) Ensure and facilitate the proper functioning of the Constitutional Council and the institutions referred to in Chapter VIIA; and
(e) On the advice of the Election Commission, ensure the creation of proper conditions for the conduct of free and fair elections and Referenda.
It might be important to understand the retention of some functions in the Office of the President in terms of duties rather than powers. It is important to underline in the amended constitution that the President is the ‘Symbol of National Unity.’ Perhaps it is in the above context that the retention of the elected president is justified. As the last election signified, the President was elected with the support of all sections of the Sri Lankan society, transcending ethnicity and religion. The President won a special place in the hearts and minds of the ethnic and religious minorities. It is the only position or institution nationally elected.
As the proposed new Article says, it is the duty of the President to “ensure and facilitate the preservation of religious and ethnic harmony” and “promote national reconciliation and integration.” I do have a personal satisfaction on this matter as this is something I have been advocating, if any functions to be retained for the President beyond the functions of a ceremonial head of state. The future of the country would largely depend on reconciliation and harmony between various communities in the country.
As the above and several other sections of the proposed Amendment show, the President also has the duty to ‘ensure and facilitate the proper functioning of the Constitutional Council and the Election Commission and more importantly the conduction of free and fair elections.’
There are symbolic and other functions remaining with the President, where he or she may blunder. Although the clauses on the presidential immunity is altered, they might fall far short of the expectations of the legal critics on this matter to ensure democratic accountability. The removal of the President or the impeachment is made easier than in the existing constitution and the President is responsible to the Parliament and more importantly to the laws and constitution of the country.
PM and the Cabinet of Ministers
Chapter VIII of the present Constitution is repealed and would be replaced. The provisions are based on the Westminster model and very much similar to the 1972 or the Soulbury Constitution. The President is not a member or the head of the cabinet as in the present constitution. “The President shall appoint as Prime Minster the Member of Parliament who in his opinion is most likely to command the confidence of Parliament. The President also may appoint a Deputy Prime Minister on the advice of the Prime Minister.” The Prime Minister shall determine the Cabinet and other Ministers. On all these matters, the President acts on the advice of the PM.
As the section 46 (1) of the proposed 19th Amendment very clearly states, the number of cabinet portfolios shall not exceed 30. All other ministers outside the Cabinet shall not exceed 40. The above dispels some of the rumours or concerns circulating in recent times as to the possibility of a ‘jumbo cabinet’ under the compulsions of a grand coalition.
Council of State
There will be a Council of State. This is, however, not a second chamber or a Senate as such. It has the functions of an advisory council both to the President and the Cabinet of Ministers. Another function would be to express concerned opinion to the Parliament on legislation that it would supposed to enact. The fourteen day time stipulation in this respect might be sufficient for the Council, if the draft legislation are only one or two. However, if hordes of legislation are proposed, it might be an unenviable task.
Nowhere in the Amendment, has it said that legislation will be placed or debated in the Council prior to the approval by the President. In that sense, the Council is not a second chamber or a Senate.
The composition of the Council also could be problematic. There will be 65 members of the Council. The Prime Minister and the Leader of the Opposition will appoint 36 members to the Council, with the approval of the Constitutional Council, of persons with integrity who have achieved distinction in profession or vocation and not less than 10 of them should be women. This stipulation is an admirable one except that the stipulated number of women could be increased at least to half (18).
There will be 20 positions reserved for the political parties and independent groups proportionately represented in Parliament to be nominated by the party leaders. There can be fears that this could be an avenue for defeated political candidates to hold some position or prestige. However, the powers or the functions of the Council, as they are, do not give such a grandiose impression.
The remaining 9 positions are left for the Chief Ministers of the country’s provincial councils. While this is useful as provincial representation, the CMs might not be in a position to participate in an active council with their own busy workloads. In respect of representation, the provincial councils could have been given more seats and representation. There is no stipulation as to the minority representation in the Council at all, as it were a taboo. This is not satisfactory.
As the main concern of democratic constituencies in Sri Lanka in recent times has been on how to halt the presidential authoritarianism or dictatorship, that objective is amply achieved through the proposed 19th Amendment among other matters. The duration of terms of both the President and the Parliament hereafter will be five years and not six years. This is in itself is democratic.
The presidential system is not completely abolished returning to a complete parliamentary system. However, the proposed system cannot also be called a semi-presidential as the powers of the president is not that significant which could trample on parliament or the rights of the people. There is no separation of powers between the legislature and the (political) executive like in a presidential or a semi-presidential system, as the government is firmly anchored in the popularly elected parliament. In that sense, the proposed system is primarily a parliamentary system.
It may easily be called a ‘mixed system,’ in the sense that many present day systems are mixed. Or some may prefer to call it a ‘dual-executive,’ as there is seeming a ‘separation of powers’ between the political executive (PM and the Cabinet) and the permanent executive headed by the President with some powers. However, there is no danger to democracy or tension between the two branches of the executive (political and permanent), as the permanent executive powers of the President would be mostly functioned under independent commissions except in the case of armed forces. In that sense, it is more appropriate to call the new proposed system as ‘parliamentary system with a semi-dual executive.’
What is in a name?
A rose by any other name would smell as sweet.