Constitutional Amendments formulated
Two important Constitutional Amendments, as promised by the
Government as the Common Opposition during its election campaign, are
now in the initial stages of formulation. The 19th and 20th Amendments
will carry important reforms to prune executive presidency and bring in
electoral reforms, both of which are expected to be fulfilled before the
next general election.
Dr. Jayampathy Wickremaratne
The Sunday Observer met one of the key brains behind the project,
Constitutional Law expert Dr. Jayampathy Wickremaratne last week to
discuss what to expect under the Amendments and what the new law meant
for the people of Sri Lanka.
Excerpts of the interview,
Q: What is the need for a 19th Amendment to the Constitution ?
A: Democracy and Governance were the main issues at the last
election. Of course there was the question of the cost of living. But
governance issues arose out of the constitutional provisions that
provide for authoritarian rule and that was what the Rajapaksa regime
The authoritarian state of affairs was firstly due to the
Constitution and secondly due to the Rajapaksa style of governance.
Because the Constitution allows the concentration of power,
Parliament is devalued. Under the Rajapaksa regime Parliament lost its
The President is above the law, you cannot even file a Fundamental
Rights application against the President in Courts. But it really became
bad under the previous regime, Then there was corruption, nepotism and
flouting the rule of law. It was never as bad as this.
As I said most of these issues can be traced to the Executive
Not every citizen in this country understood it that way. But a large
percentage of people realised that there was something wrong. During the
campaign you found people saying yes there is corruption, something has
to be done. There is this family rule, something has to be done.
While not understanding the root cause of all this, most people
understood the consequences of the Executive Presidency.
I would describe the Sri Lankan Executive Presidency as one of the
most if not the most powerful in the democratic world. Because there are
no safeguards, there are no checks and balances, he enjoys total
immunity from any lawsuit - the president is above the law and
We need to rectify this. That was one of the main campaign promises
of the Government, that you would have a democratic structure in place.
We are not going for a new Constitution now. Drafting a new
Constitution is not easy. What the Government thought was to immediately
introduce two constitutional amendments, one to democratise the state by
the abolition of the executive presidency bringing in a parliamentary
form of government and also to bring back the 17th Amendment which will
reinstate the Constitutional Council and independent commissions. That
is the first Amendment.
The second Amendment would be electoral reforms. That would be the
The 19-A is being discussed, there is a concept note that is being
shared with the Opposition and we are now awaiting the response from
Q: What are the changes proposed to the Executive Presidency under
the 19th Amendment proposals?
A: About the Presidency, he will be the head of state and he will
continue to be the head of the Executive. Even under the 1972
Constitution, the President was the head of Executive but executive
powers were exercised on the advice of the Prime Minister and the
Cabinet of ministers.
He will also be the commander-in-chief but the President will, except
on the issue of the appointment of the Prime Minister or where otherwise
required by the Constitution, always act on the advice of the Prime
Minister and the Cabinet.
The President will have some powers but not executive powers. For
example, like in India, the President may ask the Prime Minister to
reconsider the advice given to him. He may also require Parliament to
reconsider a Bill that may have been presented him for certification.
Under the proposed amendment, the certification of new Bills will be
taken away from the Speaker and vested with the President. He has an
opportunity to ask Parliament to reconsider legislation and to ask
Cabinet to reconsider decisions.
But once the reconsidered Bill is presented, he has no option then.
In addition to that, the usual powers of the President in any country
would be available to him, such as appointment of ambassadors,
President's Counsels, to declare war and peace, re-summon Parliament on
the advice of the Prime Minister. In addition, there is a proposal to
designate the President as a symbol of national unity. He will also
promote national reconciliation and integration.
He will also have an important role to play in governance issues, we
will ensure and facilitate the preservation of religious and ethnic
harmony, he will also ensure and facilitate the proper functioning of
the constitutional council and the Independent Commissions.
Therefore, the President won't be a mere figurehead like President
William Gopallawa under the 1972 Constitution.
But presidential immunity will be taken away. All acts and omissions
of the President in his official capacity can be challenged in court by
the appropriate application against the Attorney General. The Attorney
General will be made the respondent.
This is something President Sirisena talked about on his election
platform. He said "My actions as the President must be permitted to be
questioned in a court of Law ".
The term of the President will be reduced to five years. That is the
proposal in the draft. Actually the President wanted it reduced to four
years but the general consensus was, both Parliament and the term of
office of the President must have five years.
Q: So it will be a parliamentary form of Government?
A: It will be a parliamentary form of government. The President will
appoint as Prime Minister, a Member of Parliament who in his opinion is
most likely to have the confidence of Parliament, just like in any other
parliamentary form of government.
We will also make provisions for a Deputy Prime Minister. In case
such a deputy Prime Minister is needed. It is not mandatory but it can
be used if there is a coalition government.
The number of ministers will not exceed 30. The total number of
ministers and deputy ministers will not exceed 40. This is to be further
There will be special provisions relating to the present president in
that he will be able to hold ministries. But this is only for the
present term of the current president. He had expressed a desire in this
regard and it will be permitted by the Constitution.
When he wants to discuss an issue relating to his subjects, he can
summon the Cabinet of Ministers in which case he will preside over the
We are following the new British law with regard to parliamentary
affairs. In Britain now there is a limitation on the dissolution of
Parliament. People don't want Parliament to be dissolved at one person's
The proposal is to restrict the dissolution in the first four and a
half years. It cannot be dissolved unless such a request is made by
Parliament with a two thirds majority.
Q:What are the other key features of the 19th Amendment?
A:There are proposals to bring back the 17th Amendment and abolish
the 18th Amendment.
The constitutional council and the independent commissions to be set
up. There are proposals for two new commissions – the audit service
commission and the national procurement commission.
During President Chandrika Kumaratunga there was a procurement
council to over see procurement of goods and services to government
agencies. That was later abolished during President Mahinda Rajapaksa's
We want to bring it back and upgrade it to a constitutional
commission. The Constitutional Council will appoint members to this
The procurement Commission will formulate fair equitable transparent,
competitive and cost effective procedures and guidelines for procurement
of goods and services by all government agencies.
There is a proposal by the Sri Lanka Bar Association and the legal
community that when judges are appointed to the higher courts, the views
of the Chief Justice, the Minister of Justice, the Attorney General and
the president of the Bar Association must also be considered.
The National Police Commission will also be brought back. Matters
concerning police officers including appointments will be entrusted with
Q:Is there a proposal for a Second Chamber?
A: There is a proposal to have a Council of State. It is not a
legislative body or a Second Chamber.
But to have representatives form civil society, various political
parties, the Chief Ministers not as a Second Chamber but to consider
draft legislation. All draft legislation will be available to them to
make recommendations. Matters of national importance will also be
referred to them.
These are emerging proposals that need to be finalised after wide
There will be consultative committees for each ministry and for them
to be given constitutional recognition.
Meetings of many of the Parliamentary committees such as Public
Accounts Committee, COPE and select committees are proposed to be held
The Constitutional Council will appoint members to all the
independent commissions and the Constitutional Council will be appointed
as stipulated in the 17-A.
Except that the five members appointed by the Prime Minister and the
Leader of the Opposition, will be required to consult the leaders of the
political parties and independent groups to ensure the Constitutional
Council reflects the pluralistic character of Sri Lankan society
including professional and social diversity. Previously there was a
complaint that the CC consisted of only lawyers.
The Audit Service Commission will also be given constitutional
recognition. That will be handled by the Auditor General.
The National Procurement Commission will be a important aspect,
because during the last few years there was this issue of unsolicited
bills and tender procedures being overlooked.
They will report if guidelines are being followed in procurement of
goods and services.
The Right to Information will be included in the Constitution as a
The usual safeguards will be there, restrictions in the interests of
national security and privacy, Parliament will pass a law to give effect
to this right.
Q: How soon will the two Amendments reach Parliament ?
Draft proposals have been shared with the parties in the Opposition.
We are expecting a feed back soon. The public will also be given an
opportunity to respond. I cannot say anything about a timeline but we
want to wrap it up soon.
Q: These proposals have been given consent by the political parties
in the Government ?
These are being drafted with the participation of parties in the
Q: Will it require a referendum ?
A: No. We are trying to avoid a referendum. Of course any
constitutional amendment will require a two thirds majority in
Parliament but we want to draft it in such a way that hopefully that we
will not have to spend millions and billions of rupees on a referendum.
And the people have given a verdict. The people's will has been very
clear. It was expressed at this election.
Q: Will there be any proposals to change the 13th Amendment ?
No. The 13th Amendment will not be touched during this round of
Q: Some of the powers vested with the President ensured the unitary
form of the Sri Lankan state?
Powers of the President under the 13th Amendment regarding provincial
councils, remain with the President except that in the future, they will
be exercised on the advice of the Cabinet of Ministers including the
The President cannot act unilaterally. And if the President does not
agree with the decision given, he will be entitled to ask the Cabinet to
reconsider. There will be consultation between the President and the
Cabinet, as in India. In India there has never been a problem.
Q: When implementing any project or something similar in the state
sector, a lot of consultation will take place. Will it increase the
unnecessary bureaucracy and the red tape and hamper the country's
Consultation is good even if there is a minor delay. The decisions
taken are informed decisions.
Q: What assurance can you give that this amendmet will not create
further divisions among communities ?
Not at all on the contrary. These proposals will democratise Sri
Q: Will it be brought in before the next election ?
Yes. The idea is to bring it before Parliament before the election.
Q: Wouldn't it be a hastily prepared law?
This has been discussed over the last few years. The abolition of
executive powers has been an issue for the last few years. There is no
haste in this whole thing. No one can suggest that this has been done in
a hasty manner. It was one of the main issues at the last election. We
have had at least 2-3 years. For 35 years we have been criticizing the
There has been an interesting debate. There is a separate committee,
which is preparing the preliminary draft. It is the norm. But the draft
prepared by the commitee, finally goes to the legal draftsman. It is the
legal draftsman who will fine tune it and approve the final draft. He
will correct the loopholes and mistakes. It will be referred to the
Attorney General also.