21 November, 2018

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19th Amendment For Democratic Transformation

By Laksiri Fernando

Dr. Laksiri Fernando

Dr. 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.

Presidential Powers

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Article 30 of the JRJ Constitution is completely repealed for this purpose and substituted with a new.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.

Conclusion

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.

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Latest comments

  • 1
    0

    This is my personal opinion through experience.The most sifnificant factor of the aforesaid matter is a person is their above the law.I do not have any knowledge in law. But according what I have experienced in the the recent past I observed that is the most serious factor. I cannot understand whether it has been changed by reading this article. I am a person who underwent real descrimination and no releif at all after performing my duty to my best. Therefore I feel that is the real important and it is the most significant feature to be changed.

    • 4
      0

      Dear S,

      this article is [Edited out]. It’s not at all objective. The authoritarian power vested in the President at present is now transferred to the Prime Minister.

      At least with the president, the people could vote him out. Under these changes, the people don’t get to decide who the prime minister is and who gets to run the country.

      The PM will have all the authoritarian powers previously held by the president, even more. e.g. the Prime Minister, speaker and the Chief Justice can remove the elected president of the country, without any wrong doing or standard of proof or enqiry or requirement for evidence.

      Why? all because Ranil can’t win the presidency.

      They could have easily improved the constitution without this to make it better.

      What’s more this amemndment needs to be passed at a referendum. But the UNP wants to pass it without a referendum. in controvention of Article 83. They propose to change Article 4. this is rediculous. Mr Laksiri [Edited out]

    • 0
      0

      Dear Dr. Laksiri,

      Why don’t you briefly and shortly summarise the changes in the constitutional proposal in plain English where a normal citizen can understand what is said in this proposal. Most of the constitutional matters and jargons are very complicated and we have seen different regimes interpreted their own way. For example, 18th amendment made President Mahinda to contest his third term whereas the former Cheif justice argued that a president served two years under old constitution cannot contest third time. But Mahinda appointed Chief Justice interpreted differently.

  • 3
    3

    Presently the President is from the SLFP and PM is from the UNP. The harmonious co-habitation works because UNP assisted the SLFP person to become President.

    In the past however this setup had been quite acrimonious. There were constant clashes for example when CBK was the President and Ranil from UNP was elected as PM.

    The head of state is a one-way ticket. He/she need to go there shedding all past political affiliations. Its like the position of the speaker. The head of state cannot be seen to favour one political party.

    In the current scenario My3 should not be the chairman of SLFP. The SLFP chairman and leader should be Nimal Sripala. Although this can be excused given that the 100-day program needs to be successful.

    However, after My3 any President appointed should be apolitical.

  • 3
    0

    Hope the right people will be appointed to the commissions.

    Some of the recent appointments are appalling and as terrible as MARA appointments.

  • 0
    0

    Dr. Laksiri Fernando,

    It is a well defined article of yours, explaining
    how the new amended constitution will work and on paper, it looks very supportive of democratic principles but Dr. Laksiri, since you are one of the best writers on matters on the subject of good governance,can you please enlighten the people in your next article, as to what will happen to the constitution in the event,a prime minister of the calibre
    of former President is elected to power,that may happen sooner or later, who took unilateral decisions,overruling his cabinet ministers’s
    decisions.

    People doubt whether this is workable in Sri Lanka, where people vote,
    not for principles but vote for those, who exerts power in politics. In my humble opinion,the President should have little more controlling powers,not the ones we had under Executive presidency,so that ministers
    and the advisory councils can function, as on paper,without hindrance from the PM and he should have the power to change the PM.in the event he or she is found working, not according to the amended constitution. we,people, will feel it alright now,as the govt. is in the hands of decent people but what will happen in the future,is anybody’s guess.

    Dr. thankful if you could let the people know under what circumstances this constitution could become not workable and null and void and let
    the govt. take this hint and go deep into the constitution instead of
    hurrying it through the parliament as this is change is meant for ever

  • 4
    1

    Laksiri Fernando, and all the political pundits,

    Political power comes out of the barrel of the gun, said Mao Tse Tung.

    In any state the ultimate power rests with the armed forces as we saw recently in Egypt: That is why the US constitution was amended by its forefathers to give the right of the citizens to possess arms in case the regime in power subverts the will of the people and the people can defend themselves.

    So, here we go in a merry-go-round, and suppose an unscrupulous (as most Sri Lankan politicians so far have been) person like Mahinda becomes president in the future, what is the guarantee that he or she will not subvert democracy just as Mahinda did?

    Why can’t the prime minister elected by the people have all the powers including those of commanding the armed forces as in many countries in the world?

    Is it a hidden hand to ensure the continued supremacy of the Sinhala Buddhist agenda?

    All a future president needs is a referendum asking people whether they want this system to be amended after manipulating them beforehand as JR did

    In third world countries like Sri Lanka there is no egalitarianism of any kind, those in power or who have wealth have it all and the down trodden stay where they are with no salvation.

    Good luck to the muddling Sinhala state of Sri Lanka while tiny countries like Singapore are far ahead of idiotic states like Sri Lanka.

    • 0
      0

      Thiru,

      People of Sri Lanka, including writers in CT like RMBS and Dr.Laksiri , wanted the good old system of governing by West Minister style re-introduced and do away with the executive presidency system, which was not suited for SL as it led to one man rule and dictatorship was in the offing. The organizers of the present govt.had a problem where they had to find a place for Ranil Wicks, as he would not have accepted any ministerial position under PM Sirisena,hence the “Acharu” of mixed govt.system i.e. Presidency system with lesser powers plus parliamentary system with PM as the head of the govt. was introduced to give the Premiership to Ranil W and this system confused the people as well as the political parties and it is unique to SL only, where the PM was not elected to power by majority votes in Parliament, tho’ it could be a temporary and one time position.

      Have requested Dr. Laksiri to come out and tell the people as to what would happen to the constitution if a PM in the future takes the upper hand and takes unilateral decisions,like the previous President, under-mining the parliamentary system. Lets wait for his reply.

  • 2
    0

    Since I am a citizen with no training in law or politics, could someone please explain where the ‘Constitutional Council’ fits in to this, since Prof Laksiri Fernando has not mentioned it except in passing?

    It seems to me that the Constitutional Council does NOT function in an ADVISORY capacity unlike the Council of State, and has been given more powers than the President.

    If it was somehow missed in this academic analysis, could someone please explain the implications of such an entity in the new/revised Constitution, given the clauses I have extracted from the 19th amendment below?

    “Articles 61E and 61F of the Constitution are hereby repealed and the following Articles substituted therefor:-

    “Appointments by the President.

    61E. (1)The President shall appoint:-
    (a) the Heads of the Army,Navy and Air force;
    (b) subject to the approval of the Constitutional Council, the Attorney General and the Inspector General of Police,

    41B. (1) No person shall be appointed by the President as the Chairman or a member of any of the Commissions specified in the Schedule to this Article,except on a recommendation of the Council.

    41I. Subject to the provisions of Article 126, no court shall have the power or jurisdiction to entertain, hear or decide or call in question, on any ground whatsoever, or in any manner whatsoever, any decision of the Council or any approval or recommendation made by the Council, which decision, approval or recommendation shall be final and conclusive for all purposes.”.

  • 2
    1

    .
    srilanka’s problem is not with the constitution.
    :-)

  • 1
    0

    The decleration of assets by membetrs of parliment,public officers, members ofcommisions, nominees of government in private sector and there relations and justification of increase of assets is mandetory. Large movement of funds, joint acounts should be monitored by government. These leaders are responsible for negligence in following procedures or making agreements not autherised for them. They are responsible for negligence and not consulting proffesionals, politicians for consultaion on areas not known by them. They should be aware of government policies and graasroot aspiratios of the people. They will be responsible for delays or loss by the public. There remnuration should be sufuicient to prevent corruption.

    Exclusive: Full Text Of Sirisena’s 19th Amendment | Colombo Telegraph
    Colombo Telegraph � has managed to get hold of a copy of the 19th amendment draft by the Sirisena government. The government can demote, fine or remove officer when it is reasonably sure that corruption has 0ccured. Di
    The officer is responsinble for discrimation on race, religion. gender or social goroup or favoring friend or family.

  • 0
    0

    67 years since Independence and we have had almost 4 Constitutions!

    The Soulbury constitution[1947-1972],The Republican Constitution[1972-1978],The JR Constitution[1978-Todate] and presently a major shift from this which amounts to yet another constitution. Besides,we have had 19 amendments todate which makes it a Periodical! The Ideal situation would have been to enact a new constitution without all these amendments,after wide discussion and debate in the country.Tinkering with a constitution to suit the whims and fancies of the Executive President[JR & MaRa] is no longer possible and the people have given that mandate on Jan:8th.The Indian Constitution,has withstood for so long and is considered to be a master-piece for a diverse country like India.

    The comments by S.Nadesan Q.C on the Constituent Assembly and the Draft Basic Resolutions relating to the Republican Constitution[1972] published in Feb:1971 was a clear Exposition on the role of Parliament.Unfortunately,we do not seem to have such debate by Learned Forums.In that respect Dr.Laksiri Fernando has risen to the occasion.Whether the Executive Presidency should have been repealed Lock,stock and Barrel is debatable.

  • 0
    0

    Will there be a separate Legislation to change the present election system especially the “Preferential Voting” (Manapaya) and connected abusive practices in elections,such as the use of State Resources and limiting the expense etc,in both Parliamentary and Provincial? This is as important as the Constitutional Amendments. Where is the “Code of Conduct” for the Legislators? Where is the “Mandatory” declaration of assets on a yearly basis that which has to be audited by the Independent Auditor General? These “THREE” matters need to be given urgent preference and attention because this is the BEGINNING and “NATIONAL NEED” to that much publicized GOOD GOVERNANCE termed “YAHAPALANAYA”, as otherwise the same old “YAKOES” (devils) will invade the Parliament and the Provincial Councils. If their entry to the Legislative Institutions are not blocked and properly regulated no Constitutional Amendments are going to work. To put this across, in a very crude language to the so far “DEAF” Legislators, I would say these Constitutional publicity is like a “Huge Fart but no Shit”.

  • 0
    1

    At a first glance, Executive powers of the President has not been reduced to the extent people expected from the new government,it seems. Changes proposed are minimal.eg.reducing the term to five yrs, inability for a president to contest beyond two terms, Presidents actions being subject to law.

    Even after the proposed changes, there will still be an executive President with enormous powers,being in charge of armed forces, being the head of government and cabinet,and many other powers.

    It appears that the changes proposed are minimalist and all those who wanted abolition of executive Presidency, including Rev Sobhita, Rathana, FUTA will be disappointed..

    This is my first impression about the changes proposed anyway.

  • 0
    1

    I don’t think the changes stipulated go as far as those key groups and parties wanted? Executive President will still there even after the proposed changes which I think are minimalist.

  • 3
    1

    Dear Dr.Fernando;

    19th Amendment For Democratic Transformation

    The constitutional principle that limits the powers vested in any person or institution. It divides governmental authority into three branches: legislative (Parliament or Senate), executive (President or Prime Minister and the Cabinet), and judiciary (Chief Justice and other judges). This principle is expressed fully in the US Constitution, but is used only as a guide in the UK.

    *** There is lot of Euphoria over the proposed 19th Amendment which has sadly only excited a Minority of Majority .

    But for the Tamil minority what we are interested is an amendment to the “Separation of Minority from the Majority” ( not out of choice but out of necessity) with the implementation of the 13th Amendment. Whether under the Presidential or the Prime Ministerial system the Tamils are never going to be part of the decision making process . Then again you might say that the appointment of CJ is an indication that Tamils are part of the decision making process. But on closer scrutiny it is obvious that it is too little too late and in any case the job of a Judiciary is to make judgement on decisions made by the Majority.

    1) 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.

    *** Can you explain to me how the above would change the Tamil fortunes where the power is concentrated overwhelmingly at the centre controlled always by a Sinhalese.

    2) 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.

    *** Without wishing to disappoint you the notion of the President or the Prime Minister being the symbol of national unity has already been thrown into the waste bin Ranil who is now playing the Race Card to win elections.

    Sadly any system that you envisage is for the Majority and Majority only an we will always play a Second fiddle.

    I would feel a true Sri Lankan if the Constitution lays down rules that in a Presidential System the Vice President should be a Tamil.

    3) 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.

    *** Unless the President delivers on Tamil Rights we will feel used.

    4) 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.

    *** After Nugegoda and Kandy I am sure you would have noticed that the Race Card is still a potent weapon to win elections and the elected MPs will have a Sinhala Mandate to carry out.

    Conclusion

    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.

    *** For me as a Tamil 13th Amendment takes priority over 19th Amendment.

  • 0
    0

    Section 12 in the Soulbury Constitution also known as the Minorities safeguard was removed by the architect of the Republican Constitution Dr.Colvin R.de Silva.Most probably,this was Tit for Tat for the Kodeeswaran case. S.Nadesan Q.C and Dr.Colvin were great Legal minds apart from being very close friends.There was a story then in political circles when Nadesan asked for the introduction of this safeguards clause Dr.Colvin replied to the effect that Politics is the art of the Possibility!

  • 0
    0

    All this chaos about the 19th Amendments and al the crap. This stuff looks all lovely when it is on paper, but can the human being born in Sri Lanka or lets say the Politicians of Sri Lanka abide by any of these? So the question each Politico should be asking him/herself is 1) Am I honest enough to do this job? 2) Will I abuse my power? 3) Do I want to see Sri Lanka a true democratic country?
    The main reason for all this hype was ONLY because the ex-criminal President MR abused everything that was possible, and so the people are scared of such monsters. The people should not worry whether the PM or the President has more power, if only those 2 and all the other elected Ministers just do as the book says. Honest and always with the objective of the people in mind. Thats all. If the present Government has not realised this then I am sorry for that Island.

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