21 September, 2020

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The 19A Conundrum & Our Constitutional Saga

By Ravindra Gunasekara –

Ravindra Gunasekara

The 19 Amendment to the constitution has been a heyday talk both in national and international forums as it continues the role of the President at its omnipotence and brings two Prime Ministers at the same time along with an egregious speaker in the political crises of Sri Lanka. It has now arrived to the third week without any substantive solution claiming that both parties are innocent and have right to form a government without any hindrance from their political opponents. People apparently feel tired and worried by listening to scrambling news casts and various analysis from numeric pundits. Meanwhile, the crisis remains as it is by making some of the gravest damages to the politico-economic affairs of the country. It is then necessary to talk on the nature and execution of the constitution and its amendment in order to differentiate the gap between politics (on the Constitution) and politricks particularly common to many changing nations including Sri Lanka.

Unparalleled Authority

It is needless to reimage the ongoing debate on the provisions of the Constitution. In short, despite the apparent deficiencies among major power institutions, it has been the most disrupted essay in the constitutional history due to its inherent shortfalls such as grammar errors, misinterpretations, mismatch within clauses and obfuscated language. However, the major accusation against the Constitution has been excessive power vested in the hand of the President that cannot be overseen by Parliament or Court as the parallel institutions of the government. According the powers provisioned in the Constitution, the President is the head of state and the executive, and he chaired the government and deliver an unparalleled authority as the commander-in-chief of the armed forces (Article 30). 

Moreover, the President enjoys immense control as the leader of the majority party or group in Parliament particularly in the wishy-washy party system which has absorbed the politico-administrative execution from top to bottom in Sri Lanka. More importantly, the President as the key figure in the executive branch and first person in the nation occupies the office from a direct campaign in the presidential election. Even though the President is responsible in exercising powers and functions for both parliament and the people (Article 33A), he is not a member of Parliament. Therefore, the principle of responsibility operates indirectly through the board of ministers who are ascribed to answer for questions on behalf of the executive decision of the President.  

At this point, the major criticism against the post of President is that he enjoys immense of power without sufficient responsibility particularly to Parliament which has become a mere institution that approve his decisions without a proper vigilance. Hence, it is obvious that despite party affiliations or ideological standards of the President, these constitutional privileges have been continuously misused to strengthen the powers and protection. 

Unfortunately, these provisions have highly contributed to develop some deleterious consequences in the body politics such as politicization of public services, growth of nepotism and cronyism, and lumpenisation of society in large for political benefaction. As per provisions of the Constitution, president has immunity from suit and no civil or criminal proceeding can be instituted or continued (Article 35 [1]). And, the only method that can be applied to alleviate his robust play is removing his office by instituting an impeachment (Article 38 [2]) which requires to follow a tedious effort within Parliament.    

Balancing Power

Endeavors for balance of power of the President do not have a long history but there are some of the momentous attempts backed by civil-political movements from the very beginning in 1990s. However, the first successful attempt was made in 2001 under the 17th Amendment to the Constitution establishing an independent ten-member Constitutional Council (Article 41 A [1]) to appoint prominent executive commissions and key administrative figures for the Public Service. Surprisingly and sadly, nearly for a decade after the introduction, the changes did not come into practice owing to severe criticisms against the alterations and political changes happened in the meantime. 

The main condemnation alongside the 17-A was the uneven composition of the Constitutional Council which recommends to appoint a member from minority parties other than the ruling collation and main opposition (Article 41 A [1] F). He may, according the critiques, have an immense bargain power with his decisive vote for the majority in the Council when appointing executive commissions and key administrative figures, it would be catastrophic to ethno-religious cohesion in the Country. This was fuelled by the socio-political scope of Sinhalese-Buddhist chauvinism particularly in the context of North-East conflict and utterly disregarded its importance of operation as an indispensable share of the Constitution.  

Meanwhile, the government forces defeated the LTTE in 2009 and paid a sincere pathway to redecorate the ethno-nationalist movement staged by the Sinhalese-Buddhist movement. As the victories majority celebrates the elimination of Tamil Tigers, the Rajapaksa Government deliberately moved to fishing in the troubled water by drafting 18th Amendment which provisioned the President to enjoy power without any restriction as expressed in the 17-A to the Constitution. The 18-A privileges the President with five-member Parliamentary Council (41 A [1]) to gain the consent of its majority who serve in favor of his political will in the appointments of members for the executive committees and key administrative positions of the Public Service. Moreover, the 18-A brought a significant development by strengthening the state of President through removing the two-term limits and extending it, by election, for a further term (Article 31 (2) b). Even though it added a decorated running by recommending the President to attend Parliament once in every three months (Article 32 [3]), two main reasons triggered it unworkable: the President is not a member of Parliament and it is a ceremonial appear, and there is no tradition to question him in the house at the occupancy of office as the head of state and government.  

Restructuring Politics

The 19th Amendment has been a result of long entrenched struggle for a more shared exercise of power between the President and Parliament, and a platform for civil-political drive towards democratic maturity. The 19-A starts its journey immediately after the remarkable defeat of Rajapaksa Government under the patronage of traditional political elite and the civil society movement. These two clusters should not be subjected to explain as a single movement as they show completely different characteristics in method applied. The civil society movement from the very beginning showed a noteworthy progress mainly with the association of social media and several other electronic broadcasting. On the other hand, the traditional power elite being commendably progressive in demand for democratic values, contributed to play a crucial role from top to bottom at its extreme charge for egalitarian ends.

The traditional power elite, although it accompanied with the civil society movement for a considerable distance, has failed to secure its positions for safeguard democracy in several occasions after gaining power. One of such a case is drafting 19-A which demonstrates incompetent in repealing the Constitution as it comprises dozens of writing and interpretation errors. Therefore, the present constitutional crisis should be looked through this small window and assumed as a mismatch between a long-standing giant and a hobbit.

The main objective of 19-A is to advance the President’s exercise of powers into democratic standards by applying the principle of balance of power with Parliament. As a result, the 19-A cut off the President play by disqualifying a person who has been twice elected to be reelected for the office (Article 31 [2]) and his tenure for a term of five years (Article 31[3] b). In addition, it successfully confines the executive actions by establishing the Constitutional Council somewhat similarly to the 17-A and advise the President in appointing members for selected executive committees and key administrative positions (Article 41A [1]). In the meantime, there are some critical junctures in the 19-A which are ambiguous and remain uncertain in determining their original meaning such as the idea of national government (Articles 46 [4] [5]), the relationship between the President and Prime Minister (Articles 42 [4], 43 [1], 44 [1] [2], 45 [1], 46 [2], 48 [1]) and the term limit of Parliament (Articles 33 [2], 62 [2], 70 [1]). 

At this point, it is not necessary to underestimate provisions of the 19-A as it provides a more broad depiction on democratic values that can be applied to preserve the evenness between the President and Parliament. Even though the Supreme Court issued an interim order suspending the Gazette notification on dissolution of parliament, the ongoing political crises can be easily resolved through a vigilant conclusion paid to the prime objectives of the 19-A. In conclusion, it may new to apprentices but the deserved in politics remember Lord Acton who stated that the power tends to corrupt and the absolute power corrupt absolutely, and an observation that a person’s sense of morality lessens as his power increases.  

*Ravindra Gunasekara teaches Politics and Administration at the Department of Political Science of the University of Sri Jayewardenepura

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Latest comments

  • 5
    1

    “egregious speaker” – could you please elaborate? The role of the speaker has been to stand up to the executive in Westminster constitutional history. Who were the egregious ones here, a bunch of marauding thugs who went amok and made the parliament a laughing stock abroad or a dignified man standing up to thuggery?

    • 1
      0

      Word ‘egregious’ is applied to denote the speaker’s conspicuous play, and it is at the moment ‘out of the order’ but it doesn’t mean he is an enemy. He has been ‘man possessed’ with a ground an d get the idea at full reference to the text.

  • 1
    0

    I am more confused than before whether the actions of the President’s dismissal of the Prime Minister was constitutional or not. The dissolution is before the Supreme Court and they, rightfully, will give their decision on the 7th December. The dismissal also should have gone to the Supreme Court. Another expert, Prof Suri Ratnapala stated it was not constitutional. At least he was emphatic. This expert has skirted around issues without giving readers a clear point of view (from his perspective). He ends by quoting what is a nursery rhyme for many readers of CT “it may new to apprentices but the deserved in politics remember Lord Acton who stated that the power tends to corrupt and the absolute power corrupt absolutely, and an observation that a person’s sense of morality lessens as his power increases”
    Don’t we know this after leaders like JRJ began usurping democracy and others who followed him, intoxicated with their own power, continued the onslaught?

  • 3
    0

    Ravindra Gunasekara: We are past the stage of “The 19A Conundrum & Our Constitutional Saga”
    The ‘happenings’ over the past few days indicate that the motive is much more ‘un-democratic’.
    It is NOW or never to put it right.

  • 0
    3

    In the first place, Sirisena’s party the UNF gained the votes of the Masses in the 2015 presidential and provincial elections. UNF was a branch off from the UPFA, and was of the UPFA-type.

    UNP did not win nationally and democratically in parliamentary and provincial elections in 2015.

    UNP parliamentary body only came to being because it was incumbent upon Sirisena to honor his promises to the UNP for his break-away from the UFPA team, and to secure his victory over Rajapaksa.

    After that it was a matter of cohesion and manipulation that the UNP parliament majority came into being – the democratic voices of the Masses severely ignored in the Parliamentary composition.

    Everything, thus illegal and flawed, abrogates all other technicalities of the constitution.

    Furthermore, Local General elections 2018 showed again the voices of the Masses when UPFA-SLFP scored a resounding victory over the UNP.

  • 0
    0

    Ravindra

    Can you please let me know which democretic country has the perfect constitution?
    The test is to pprove weather the people hold the contitutional responsibility acted in a ” Normal” way.

    It very simple, president cannot dismiss prime minister. All other actions are results of that decision.

    Anthony

  • 0
    0

    Ramona Darling you forgot to give us USA comparison as you always do. Can some one get rid of Trump just because they dont like his face????? I guess if true so many would like to see that.What is your expert opinion RAM ONA.

    • 0
      0

      They love Trump’s face, chiv-cherie. They only wanted to balance him out with a more democratic congress.

  • 0
    1

    Mr Ravindra
    In a 100 seat parliament party A has 10, B has 20 , C has 30 and D 40. Which party should the President invite to form a government? Presumably D. Assume President invited and facilitated D to form the government on some indication that B would support. However as members are free to cross over {even multiple times!) now A,B and C can together to defeat the government in a no confidence motion. Does this automatically entitles C to form the government? I think not. The fact that all A, B. and C voted against the government in a No Confidence Motion does not mean that A and B have agreed to make the leader of C the PM.
    Assuming President Sirisena makes the leader of C (Ranil) PM, A (JVP) and B (TNA) can join again with D (Pohottuwa) after a few days to defeat C (UNP). Theoratically the cycle can repeat and what happens if President is not empowered to dissolve the Parliament for 4 1/2 years!

    Soma

    • 0
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      Soma
      Your entire theoretical speculative about President becoming powerless for 4 1/2 years should end when a law to enforce unprincipled multiple cross overs by MP’s becomes an entrenched constitutional clause.

  • 0
    0

    Books books books behind ravindara. I hate books, loves tv instead

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