By Harsha Gunasena –
There are allegations against the 19th amendment which was passed by 225-member Parliament with 212 votes in support of it, one vote against, one abstention and ten were absent during the vote, that it created two powerbases and hence caused instability in the governance structure.
The President sometime back mentioned that he will abolish the 19th amendment to the constitution and for that he will need 2/3 majority in the parliament. In his election manifesto he promised to prepare a new constitution for Sri Lanka. However, the current focus seems to be the repeal of 19th amendment.
In November 2019 when he was interviewed by The Hindu in India, he responded to a question regarding the 19th amendment as follows. “The 19th amendment (passed in 2015) is a failure and if we get 2/3rds majority in parliament we will drop it from the constitution. The only way you can even make the 19th amendment work is with two brothers (laughs) [at the top]. For a country to be governed successfully, you need stability. This was not the case during the Sirisena-Wickremesinghe government, where they were fighting all the time and there was no development. Without stability, investors won’t come.”
There are flaws in the 19th amendment such as the definition of a national government under which, the political party of highest number of seats can form a national government with any other group irrespective of their number of seats. (Article 46(5)) Under this provision previous government tried to form a national government with Sri Lanka Muslim Congress with one seat under its own name. In the future also this provision may be used to enjoy higher number of portfolios.
However, the intention of this article is to examine whether the 19th amendment paved the way for instability in the country by creating two power bases by strengthening the office of the Prime Minister.
Models of Government
There are three main pillars in governance in democracies. the Executive, Legislature and Judiciary. In the Westminster system, Executive is the head of the government and that power is assigned to the Prime Minister who is within the legislature and accountable to the legislature. Therefore, legislature is supreme. There are two alternatives to this system. One is the American model where the Executive is elected directly by the people and he select the suitable members of the cabinet outside of the legislature. Therefore, the Executive is totally independent from the legislature and they both have defined roles with effective checks and balances. The other model is the French constitution. Under this the president is elected by the people and he appoints the Prime Minister from the legislature and therefore the Prime Minister is accountable to the legislature. This model inherently creates two executives, the President and the Prime Minister and if they are from two parties, they are compelled to implement cohabitation system of governance.
This cohabitation should be with the two executives. In France it is the common understanding that in this type of situation the President looks after the foreign affairs (Article 52- President should negotiate and ratify international treaties) and Defence (Article 15-President is the Commander-in-Chief of the Armed Forces) and the Prime Minister looks after the domestic affairs. In the first cohabitation government under the fifth republic constitution of France in 1986, conservative Prime Minister Jacques Chirac nominated two ministers for Foreign affairs and Defence with whom the socialist President Francois Mitterrand can easily work. However subsequently two men had several rows over the foreign policy as well as domestic policies which showed the bitter side of cohabitation.
In the Westminster system, cohabitation is not required if the ruling party is having absolute majority in the Parliament. However, the government will have to depend on the other parties for passing laws and getting approval for certain actions if they are a minority government. Under the American system, out of the three institutions, the President, Congress and Senate, there can be instances where one institution is dominated by one party and the balance two by the other party. For instance, at present US President is a Republican and most of the Senate are Republicans whereas the Congress is controlled by Democrats. In this type of situation also cohabitation is needed to a certain extent.
When JR Jayewardene introduced the second republican constitution he claimed that Westminster system of governance often creates unstable governments and to meet the requirements of the day there should be a stable government. His solution was a presidential system. Reason for his claim was that the ability to defeat the governments by no confidence motions in the parliament. He proposed to have a powerful executive president independent of the parliament. The constitution drafted followed mainly the model of French constitutions together with Jayewardene’s personal views to make the office of the president more powerful.
Model of having two executives
Jayewardene weakened the office of the Prime Minister so that the President can be stronger paving way his Prime Minister to opine that his post was like that of a peon.
Prior to 2015, we have seen two instances of having the President from one party and the Prime Minister and the government from another party. In August 1994 Chandrika Kumaratunga became the Prime Minister under President D.B. Wijetunga for a short period of three months. Thereafter Ranil Wikremesinghe became the Prime Minister under the President Chandrika Kumaratunga in December 2001. In these two instances the respective Presidents did not interfere with the government and the formation of the ministers. Wickremesinghe in 2001 ran the government with executive powers and with full authority irrespective of the power of the President until such time the President took over three ministries and subsequently dissolved the parliament in February 2004. In the first instance Wijetunga had the control of the Defence ministry but in the second instance Kumaratunga did not have even that control till she took over three ministries.
Hence this system is having two executives. When Maithripala Sirisena took the leadership of the SLFP in 2015, the President and the Prime Minister were from two different parties. It was a government of cohabitation. Therefore, if someone says that due to the 19th amendment, the constitution has created two power bases that allegation is wrong. The two power bases were created intentionally by the persons who drafted the original constitution. This was one of the main allegations against the 1978 constitution by Dr. N.M. Perera. What 19th amendment did was to strengthen one power base against the other. This was the popular request at that time. In fact, the request was to abolish the executive presidential system in total.
Although Jayewardene strengthened the office of the President against the office of the Prime Minister, he knew the weaknesses of the constitution in relation to his ambitions of power. That was the reason as the powerful leader of the UNP he demanded the undated resignation letters of all the UNP MPs who accounted 5/6th majority of the parliament. That was the real power he exercised which was outside of the constitution and which supplemented the constitutional power. With the intention of exercising this power for a longer period he held a referendum in December 1982 to extend the existing parliament rather than holding a general election. He signed the Indo-Lanka agreement in July 1987 by using this power almost single handedly with the support of only one prominent cabinet minister and with the objections of the Prime Minister, senior ministers, entire opposition other than the Tamil parties with the imposition of curfew. This paved the way to the 13th amendment to the constitution in November 1987 which was the only devolution package introduced as a solution to the ethnic problem since independence.
We have seen the vulnerability of the president in September 1991 when there was an attempted impeachment. President Premadasa was shaken and struggled for power although there was a lengthy process to succeed the attempt of impeachment.
Therefore, even prior the 19th amendment in addition to the constitutional provisions the real power of the President comes from the majority of the parliament and from the leadership of the political party that holds the majority. Maitripala Sirisena would have been a puppet in relation to the power struggle if he did not have the leadership of SLFP. However, if he did not have a power base and if he adhered to the new role assigned to him by the 19th amendment it would have been immensely beneficial not only to the country but also to him.
Constitution of France
Let us examine some of the provisions of the French constitution in respect of the powers of the President and the Prime Minister, which are directly related to the 19th amendment.
“The President of the Republic shall appoint the Prime Minister. He shall terminate the appointment of the Prime Minister when the latter tenders the resignation of the Government. On the recommendation of the Prime Minister, he shall appoint the other members of the Government and terminate their appointments.” (Article 8)
“The President of the Republic shall preside over the Council of Ministers.” (Article 9)
“The President of the Republic may, after consulting the Prime Minister and the Presidents of the Houses of Parliament, declare the National Assembly dissolved…… No further dissolution shall take place within a year following said election.” (Article 12)
“The Prime Minister shall direct the actions of the Government. He shall be responsible for national defence. He shall ensure the implementation of legislation. Subject to article 13, he shall have power to make regulations and shall make appointments to civil and military posts.” (Article 21)
(Note: In Article 13 certain authorities of the President were outlined)
19th Amendment to the constitution in relation to the Constitution of France
There were four main amendments of the 19th amendment which shifted the power of the President towards the Prime Minister. Those were: taking off the authority of the President to remove the Prime Minister; appointment of the ministers by the President should be done on the advice of the Prime Minister; President is barred from holding any ministerial portfolios: and restrictions imposed on the President to dissolve the parliament.
Although the President can appoint the ministers only on the advice of the Prime Minister as per the 19th amendment, he can continue to decide the number of ministers and to change the ministries among appointed ministers. Those provisions were not amended.
According to Article 8 of the French constitution President should act based on the recommendations of the Prime Minister in respect of appointing of the ministers and the French constitution is silent about deciding on the portfolios of the ministers. Therefore, all these are within the authority of the Prime Minister. He is also the head of the government (Article 21) Although in the Bill of the 19th amendment it was mentioned that the Prime Minister should be the head of the government, it was removed in the Act. Hence in this respect French constitution gives more powers to the Prime Minister than the Sri Lankan constitution even after the 19th amendment.
The President cannot remove the Prime Minister after the 19th amendment and this was confirmed by the Supreme Court as well after the abortive attempt to remove the Prime Minister in 2018. This is the same in the French constitution as well. (Article 8)
The President cannot hold any ministerial portfolio since the previous article 44(2), where the President could keep any number of portfolios with him, was repealed by the 19th amendment to the constitution. In the French constitution as well, the President cannot keep any ministerial portfolios since government is under the Prime Minister. If the President holds any ministerial portfolios there is no body in the parliament to answer about the activities of such ministries. In this case the constitutional model shifts towards the American model where the ministers, according to the American constitution secretaries, are outside of the legislature. There is no consistency the model of the government if all the ministers are responsible to the parliament except for one.
The other feature which strengthened the office of the PM was the introduction of limits to the authority of the President to dissolve the parliament. Prior to the 19th amendment the President can dissolve the parliament after one year from the date appointed for its first meeting. This limit of one year was increased by the 19th amendment (Article 70(1)) to four and half years. In addition, if the parliament requests the President to dissolve it with 2/3rd majority, then he can dissolve it.
According to the French constitution the President cannot dissolve the senate. He can dissolve only the National Assembly and for that he should get the consent of the Prime Minister and the presidents of the two houses. Also, he cannot further dissolve it within one year after the election. If the President is elected from a party other than the party holds the majority in the parliament, the President can name a Prime Minister as his wish and if the government gets defeated at the National Assembly, he can dissolve it. For this he can easily get the consent of the new Prime Minister and in addition to that he should get the consent of the presidents of the National Assembly and the Senate.
In amending this Article 70(1) of the constitution by the 19th amendment law makers may have taken guidance from the British Parliament where under the Fixed term parliament Act 2011, Prime Minister cannot advice the Queen to dissolve the parliament early. The reason was that the Prime Minister can take an undue advantage by holding the election at a time favourable to him. Therefore, there are two methods for the early dissolution. One is a no confidence vote against the government and the other is a vote for an early election which should be passed by 2/3rd majority. Passing of this Act was initiated by the Liberal Democrats who supported the conservative government which failed to get absolute majority in the parliament. Hence the background of this Act was like that of the 17th amendment in Sri Lanka.
Therefore, the 19th amendment restricts the President to dissolve the parliament at a time politically advantages to him. In Britain if the government wants to dissolve the parliament, they need 2/3rd majority and if the opposition wants to dissolve it, they need simple majority. In Sri Lanka if the Prime Minister resigns, the President can appoint a fresh government which should have the support of the parliament. It would have been better if the President is given authority to dissolve the parliament when the government is defeated by a no confidence motion in the parliament. Current provision is too stringent. Law makers have adopted only a portion of the British law.
In two instances in Sri Lanka, after Presidential elections of 2015 and 2019, the governing party after the defeat at the elections allowed the winning party to create a minority government.
Two third majority in Sri Lanka had lead the country to disaster. In 1977 JR Jayewardene was able to get such a majority because of the bad governance of Prime Minister Sirimavo Bandaranaike mainly due to the absolute majority she had. Root causes of the two rebellions we had, lies in the extended absolute majority JR Jayewardene had. Root cause of the defeat of Mahinda Rajapaksa in 2015 was the absolute power he enjoyed facilitated by the 18th amendment to the constitution. Therefore, the voters should not give absolute majority to anyone. If the President is the leader of SLPP he would command more power than the power he would get by re-acquiring the powers transferred to Prime Minister by 19th amendment.
The issue of two power bases is inherent in this constitution and it is not a creation of the 19th amendment. What is ideal to do is to draft a fresh constitution to end this two headed executive system. For this the previous government has taken the initial steps. Out of the two executives the office of the President directly elected by the people should be abolished. If the people want to keep it, we should go for the American style full presidential system where there is only one executive.
The question of two power bases does not apply to the President and the incumbent Prime Minister if the Prime Minister can continue after the general election. It will be a question only in a cohabitation government. Also, we have not strengthened the office of the Prime Minister to the level of French Prime Minister. Therefore, this level of balancing of power would be ideal until such time we have a fresh constitution.