16 November, 2018

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The Political Implications Of The 19th A & The Emerging Politico-Legal Crisis

By Piyumani Ranasinghe and Dhanushka Silva – 

Dhanushka Silva

Piyumani Ranasinghe

Sri Lanka is currently enduring a constitutional and politicalcrisisdue to the events of the famous Friday evening, the ongoing regime change with the appointment of a new prime minister on the 26th of October. The political and constitutional implications of the constitutional coup; against the brewing interpretations on the validity of appointing the new prime minister is taking the center-stage in the national political arena. Interestingly, the differing framework of views between the two camps (in favor of the new appointment and in opposing the new appointment) has created a divide between loyalties, where currently, the situation is at an uncertain standstill due to the varying political undercurrents which operates behind closed doors.

Behind the sensationalism involved in the disturbing series of events, there is an array of constitutional and political implications on the island nation and its already debt-destined future. This plight that the nation is faced with can be redirected to the political and legal implications of the 19th Amendment to the constitution. Whilst the amendment rejuvenated the debate on democracy and good governance in an attempt to amend the powers of the executive presidency, on which the architecture of the 1978 second republican constitution resides, it has also paved the way for inexplicable political and constitutional implications, including the current issue with the appointment of a new prime minister.

1. Divided camps and Divided Loyalties

There are various interpretations to the constitution brought forth by two main political camps, those arguing in favor of the appointment (headed by the SLFP and SLPP) and those arguing against the appointment (headed mainly by the UNP). In the attempt to validate their respective positions, the pickaxes of both camps are not only hollowing out their respective galleries, but killing the spirit of Constitutionalism left in this country.

The SLFP and SLPP camp argues under Article 48 (1) that the prime minister can be dismissed, because the National Government dissolved once the SLFP ministers crossed over into the opposition on the 26th of October. The argument is that, these former ministers were central to the existence of the National Government and at their departure, the National government also collapsed.

However, it should be noted that, according to Article 43 (3) (3), whilst the President may at any time change the assignment of subjects, functions and even the composition of the Cabinet of Ministers; such changes shall not affect the continuity of the Cabinet of Ministers and the continuity of its responsibility to Parliament. Thus, the entire regime change that took place overnight, in the manner it did, is clearly unconstitutional. The power of dismissing the Prime Minister could be assumed as inherent to the power of appointment in the constitution prior to 2015. However, after the 19thAmendment Article 46 (2) expressly specifies ways in which the Prime Minister vacates office and this is why Article 42 (4) only allows the President to appoint the Prime Minister, and says nothing about dismissing the Prime Minister.

Generally, the power of dismissing the prime minister is vested with the Parliament, and not with the President in terms of formal Parliamentary traditions. There are ways in which the parliament can officially dismiss the government and the prime minister, which involves the Parliament rejecting the Statement of Government policy or the Appropriation Bill (budget) or passes a vote of no-confidence in the government according to article 48 (2) of the Constitution.

According to the SLFP/SLPP camp, when the cabinet dissolved on the 26th of October, the National Government under the leadership of Ranil Wickremesinghe ceased to exist, because he lacks the confidence of the Parliament. Alternatively, under Article 42 (4) the President has the power to appoint a new prime minister who, in his opinion, is most likely to command the confidence of the parliament. The issue however is that, the Parliament has been postponed by the President, in the aftermath of the controversy. Leaving aside the perceivable ‘bad faith’ of such postponement,it is problematic as to how a prime minister can be dismissed without explicable proof of him lacking the confidence of the parliament and the inability to constitutionally prove the matter in the parliament.

Dr. Jayampathy Wickramaratne notes that Ranil Wickremesinghe was appointed as prime minister (as per Article 42(4)) in August 2015 before the UPFA joined the UNP-government (i.e. before the national government was formed in September 2015) – therefore, if the national government is to be considered dissolved, then one should revert to the original position where Ranil Wickremesinghe is still the Prime Minister.

Thus, the squabble between self-interested political actors attempting to retain power by hook or by crook have stooped to a level where ‘SLFP/SLPP apologists’ now rely on heedless claims over interpreting inconsistencies between the Sinhala and English translations in the constitution, which are none other than technical glitches.

2. Political Implications of the 19th Amendment

Political implications of any law (irrespective how better it is) cannot be read independently, but only once the conflicting situations strike the bigger picture. Today, although the 19th Amendment is perceived to play a central role in the formal democratic lens, the political interests within the amendment questions its capacity to address crisis situations. In other words, the politics involved with in the amendment not only corrodes its democratic validity, but also legitimizes certain moves of self-interested political actors.

Dr. Kalana Senaratne in a chapter entitled “The Politics of Negotiating competing Interests in Promulgating the Nineteenth Amendment and Twentieth Amendments(in The Nineteenth Amendment to the Constitutionedited by Dr Welikala) pointed out three predominant political objectives of the constitutional reform project undertaken by the anti-Rajapaksa forces since mid-2014. These political objectives now seem to affect the nature in which the 19thAmendment operates in the political realm. The first objective was to limit the powers of the Rajapaksa regime by forcing him to accept certain democratic reforms. Secondly, politically aiming to defeat the Rajapaksa regime and to bring about a regime change and thirdly to consolidate power of the new political leadership and establishment, while preventing the return of Mr. Rajapakse. The events on the 26th of October depicts how these political objectives are now turning against the tide of the 19th Amendment, and are giving birth to many anomalies that are to break out in the course of Sri Lankan politics in the time to come.

For instance, the amendment changed the age limit to thirty five years for a candidate to be a legally fit to contest for executive presidency with the aim of obstructing the future of certain ‘political heirs’. Henceforth, the predecessors will have to iron out all possible ambiguities and play with the ‘rules of the game’ in the name of the heirs’ future. Moreover, the re-introduction of the two-term limit, prevents the return of certain political actors, who possess the political currency that appeals to the ordinary citizenry. Irrespective of the constitutional hindrances to run for presidency again owing to the 19th amendment, the Rajapaksa regime still is extremely popular amongst masses. This builds their political leverage to challenge the government and the existing governance structure, which is clearly evident in the aftermath of 26th of October.

The political objectives of the 19th Amendment shifted the paradigms of the executive presidency, lowering the status provided for it under the original text of the constitution. Significantly, it also changed the relationship between the president and the cabinet, the prime minister and the legislature. The President can no longer dissolve the Parliament at his discretion before the lapse of 4 1/2 years irrespective of the disagreements or anomalies that can arise within the polity (between the president and the parliament),  resulting in  the disagreements or anomalies turning into political dilemmas lacking clear resolutions. In short, imposition of strict limitations on the “center” (presidential powers) while correspondently increasing the powers and the constitutional status of the parliament and the prime minister, could leave the current political state at a deadlock.

Therefore, the 19th Amendment, the center-piece brought by the ‘late’Yahapalana Governmentto strengthen the democracy, and especially its entrenched political objectives, has paved the way to disintegrate the whole system of governance promulgated by theYahapalanamovement, where situations such as the present political crisis could remain unresolved for some time.

3. 19th Amendment and the political future

The legality of the appointment of a new prime minister, dismissing the previous prime minister is surely problematic, because not only does it raise a legal question, but is also a hard blow on the democratic accountability of public representatives. The question of where the constitutional crisis is headed at, is still a question and most probably will remain a question in the time to come. This is because the political implications of the 19th Amendment will continue to have a bitter effect, due to the changing power dynamics of the current Sri Lankan political setting, particularly in terms of the powers of the executive. In other words, the political implications of 19th Amendment have opened the Pandora’s Box and the events on the 26th of October are simply a part of the bigger picture, which is still not apparent.

*Piyumani Ranasinghe and Dhanushka Silva are currently reading for their LL.B. Degrees at the Department of Law, University of Peradeniya.

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Latest comments

  • 3
    2

    This is a day night roberry..
    This is a coup that went wrong .
    This is nothing but a treason.

  • 7
    0

    politico-legal crisis? Is it not too late to be emerging -becuase it has already emerged?

    I cannot understand how such a politico-legal luminary like Ranil W can bring about such a stupid constitutional amendment that carry so much politico-legal holes like Swiss cheese.

  • 4
    1

    In the meantime can the authors please explain the readers under the venerated 19th amendment the number of Ministers required to manage the country is based on the FUNCTIONAL requirements OR the POLITICAL requirements?

    Soma

  • 1
    4

    A MEGA thief, a instigator of a Humongous FRAUD even in the world financial market scale, HE should have been in the jail .long ago. So, it is illegal even to remove now. You people were silent at that time when he was incapable of answering the FCID instead explained the world financial market. WE understand everything behind now. . [Edited out]

  • 2
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    I am glad to note that the authors who are studying law at the university are taking so much interest in matters that are of great concern to the future of the country. But I believe that once they pass out and actually start working as lawyers they will lose interest in all these matters and will focus exclusively on making money like all the other lawyers. The enthusiasm will be there only during the formative stages.

  • 1
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    Thank you Piyumani Ranasinghe and Dhanushka Silva for the interest you show in our present predicament. Young minds on the way to legal profession.
    .
    You are cautious in calling it ‘Politico-Legal Crisis’ and a bit later ‘Constitutional coup’. Shows you take LAW101 very seriously!

    You correctly point out ~ “……….There are ways in which the parliament can officially dismiss the government and the prime minister, which involves the Parliament rejecting the Statement of Government policy or the Appropriation Bill (budget) or passes a vote of no-confidence in the government according to…….”.

    MS did not initiate a ‘No-Confidence-Motion’. RW was sacked AND replaced with MR. It is possible MS felt that legally he may not be able to achieve what he wanted.
    .
    It was a coup. Fortunately bloodless. Grabbing power via coup is very very very illegal.

  • 2
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    Pumani Ranasingh & Dhanushka Silva: My question to both of you is: Do you concede that the Government set up under the Premiership of Ranil W is a “NATIONAL GOVERNMENT” OR a “UNITY GOVERNMENT”? I tend to agree that it is a “Unity Government” or a sort of a “COALITION” of a number of Political Parties and Fronts, in that UNP coming up with “United National Front” comprising of other “Political Parties” AND SLFP coming up with a “Section” of the UPFA”. If that is agreed upon, a “Break away” of one “LIMB”, in this case the SLFP led UPFA, of that “Coalition” does not mean the “Unity Government” stands “DISSOLVED”.. But, contrary, the SLPP stands FOR “Deemed Dissolved”, idea through “Learned Prof. GLP” and continue to dictate to President. So this “INTERPRETATION” of a “NATIONAL” against a “UNITY” Government has to be first understood by all the 225 Legislators and make their decision as to the continuity of the present Government. Next, if any one or single party of that “Coalition” OR a CITIZEN is not agreeing to that “Decision” of the Legislature, it could be challenged and seek redress from the Supreme Courts – the only Judiciary arm that decides on Constitutional matters. On the other hand, if this “DECISION”,( I believe based on the fact “Deemed Dissolved” because one “LIMB” – the SLFP/UPFA has left the “Coalition”,) of the President is allowed to go “UNCONTESTED” OR “UNCHALLENGED” it will leave a “PRECEDENT” that would definitely be made use of by any other person to assume functions of that position termed “President”. Leaving aside this “Number Game” and “Color Politics” all 225 Legislators have to KNOW the situation and PROTECT the FUTURE of S/L from these type of “ADVENTUROUS” precedents that the Head Of A STATE could create. Your thoughts are welcome. Thank you..

  • 1
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    Sri Lanka is an executive presidential system and not a Westminster system. Therefore you cannot apply the same logic here. The President is the executor. Parliament is for law making and not executing.

    This is not the first time a 19th amendment was attempted. In 2001 after coming into power Ranil tried to bring a 19th amendment which sought to scrap President’s power to dissolve the parliament. But it did not go through and Sri Lanka was lucky. Ranil tried again and succeeded in 19 amendment. This 19th amendment was introduced for two main reasons. One, two block any Rajapaksa from coming to power and for Ranil to greedily stick into the premiership.

    Now 19th amendment created two power centres when it satisfied Ranil’s needs. Sri Lanka has two bosses who are unwilling to agree with each other. To this address Ranil’s natural arrogant and stubborn nature. We have a crisis and 19th amendment is one big reason for it. So 19 amendment should be removed in a future government.

  • 0
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    And now from yesterday Deana wadapitiya Gevindu Kumaratunga revealed how this strange clause which created a prime ministerial dictatorship was inserted to the 19th amendment.
    When the draft of 19th amendment was presented to the parliament, various parties went to courts against it. Supreme court gave a judgement saying these particular clauses need a referendum to be passed. RW and his cahoots were forced to remove it then. But in the final hour Ranil added a clause that scrapped president’s power to dissolve parliament. So this part of the 19th amendment had been added mischievously with the motive of deceiving both the court and the public.

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