19th Amendment: a tilt towards Parliament:

Danger of Constitutional deadlock

by Asanga Welikala

It was the late Professor A.J. Wilson, who advised President Jayewardene in the making of the Second Republican Constitution of 1978, who later described that constitution as ‘the Gaullist experiment in Asia.’

He was alluding to the influence of the rationales and principles of the constitution of the 1958 French Fifth Republic, where the main architect was President Charles de Gaulle, on the design of the Sri Lankan constitution.

The constitutional reforms currently proposed by the Sirisena-Wickremesinghe administration take the Sri Lankan constitution even closer to the Gaullist model in the design of the Executive, even though entirely local considerations rather than any attempt to emulate France seem to be at the root of the reforms.

They do so by augmenting the ‘bicephalous’ nature of the Executive, whereby those powers are shared and must be exercised in cooperation between the President and the Prime Minister and his Cabinet.

That there was no political consensus to reintroduce parliamentary democracy, in spite of the appalling consequences of uncontrolled presidentialism in the recent past, is noteworthy and deeply disappointing.

The Nineteenth Amendment to the Constitution Bill was published on March 17, 2015.

It resolves the doubt and speculation, which had prevailed even before the presidential election, as to whether these reforms would abolish the executive presidency outright, or merely prune some of its more excessive powers.

In essence, the Bill retains a presidential system of government; or more precisely, it maintains the basic character of the 1978 Constitution as a ‘semi-presidential’ system, in which there is both, a directly elected President and a Cabinet of Ministers responsible to Parliament.

But it reshapes the nature of executive power by making fairly significant changes to the way in which such powers will be exercised in the future. The Bill redefines the institutional shape of executive power by:

• Reducing the substantive scope of the powers of the President and strengthening the position of the Prime Minister;

• Introducing some temporal limitations on executive and legislative power;

• Imposing procedural restraints on the exercise of executive powers; and

• Attempting to depoliticise certain aspects of executive decision-making by reintroducing the old Seventeenth Amendment framework with some improvements, and introducing some new independent institutions.

Cumulatively, these changes can be seen as altering the system of government from a ‘president-parliamentarist’ form of semi-presidentialism (where the Cabinet is responsible to the President and Parliament) to one that is ‘premier-presidential’ (where the Cabinet is collectively responsible solely to Parliament).

Head of State

If the Nineteenth Amendment were enacted, the President would remain the directly elected repository of the executive power of the people, including in relation to the defence of Sri Lanka, and continues as ‘the Head of State, the Head of the Executive and of the Government, and the Commander-in-Chief of the Armed Forces.’

As before, the fact of direct election and the President’s role as the embodiment of the sovereignty of the people in respect of the Executive, adds both democratic legitimacy as well as an undefined source of residual power to the office.

This assumes major importance in interpreting the limitations on the President’s powers and functions that are contemplated in the Nineteenth Amendment.

The President may potentially be able to draw upon his legitimacy and his ‘sovereign’ powers to settle any ambiguity, or conflict with other actors such as the Prime Minister or Parliament, in his favour.

The President will also now be ‘the symbol of national unity.’ However, the presidential term is reduced to five years (as is Parliament’s term) and the two-term limit is reintroduced. Nevertheless, the principle that a President is elected for a fixed term – as originally reflected in the 1978 Constitution prior to the Third Amendment – has not been restored.

Therefore, the President has the right to seek early re-election after the expiry of four years of his first term (this obviously does not apply to the second and last term).

The convoluted provisions of the Third Amendment regarding the date of commencement of the second term where the incumbent has been re-elected, which has caused such confusion in the recent past, has been retained.

The only aspect of the Eighteenth Amendment that survives, therefore, is the requirement for the President to attend Parliament at least once in three months.

The old principle that the President is responsible to Parliament is reiterated, but it is not strengthened by an express duty to account to or be held accountable by Parliament, except by way of the impeachment procedure.

Likewise, the much-criticised presidential immunity from suit survives largely intact, except that fundamental rights applications may now be made against the Attorney General in respect of official acts or omissions of the President.

The ceremonial functions of the President as the Head of State have been retained, but a new list of duties has been added.

These include the duty to ensure respect for the Constitution, preserve religious and ethnic harmony, promote national reconciliation and integration, ensure the proper functioning of the Constitutional Council and the independent commissions and offices, and together with the Election Commission, to ensure free and fair elections.

Two matters to note are that these are expressed as ‘duties’ rather than ‘powers’, and whether the express enumeration of these duties has any legal effect in constraining the scope of presidential power.

That is, in the context of the new role of the Prime Minister and the Cabinet, the question whether the President’s day-to-day functions are restricted to these matters, or whether he has a wider role, remains to be clarified in the working of the new arrangement.

The Prime Minister, the Cabinet and Parliament

The Cabinet of Ministers is charged with the direction and control of the Government, and it is both collectively responsible and answerable to Parliament (note the President is only responsible but not answerable to Parliament).

One of the President’s most important powers is to appoint the Prime Minister, who is in the opinion of the President, the Member of Parliament able to command the confidence of Parliament.

This power is exercised at the President’s sole discretion, although it will be conditioned by political realities as to who is able to command confidence.

Once appointed, the Nineteenth Amendment Bill provides that the Prime Minister shall be ‘the head of the Cabinet of Ministers’, although confusingly, the President is also ‘the Head of the Executive and of the Government.’

In this capacity, the Prime Minister determines the number of Cabinet Ministries and the assignment of subjects and functions to them.

All Cabinet Ministers, Ministers who are not members of Cabinet and Deputy Ministers are appointed by the President on the advice of the Prime Minister.

The Prime Minister recommends to the President any changes to the composition of the Cabinet (and other Ministries) and reshuffles.

Ministers may also be dismissed by the President on the advice of the Prime Minister.

These are significant changes in that these powers are now exercised by the President at his sole discretion, and which after the Nineteenth Amendment, will be transferred to the Prime Minister.

Moreover, the power of the President to assign any Ministry to himself has been removed, implying that the President’s functions are limited to the express functions mentioned above (in addition to any residual power that may be asserted).

The whole Cabinet stands dissolved if the Prime Minister resigns, dies, or otherwise ceases to hold office.

Likewise, the Cabinet stands dissolved if Parliament rejects the Statement of Government Policy, the Appropriations Bill, or passes a vote of no-confidence in the government. In these circumstances, the President must appoint another Member of Parliament likely to command the confidence of Parliament.

It is important to note that for most of its term, Parliament may only be dissolved by the President with a two-thirds majority supporting it.

The Prime Minister cannot advise dissolution, and neither can the President dissolve Parliament on his own volition, except in the final six months of its five-year term. Therefore, if a government falls during the course of a Parliament in any of the ways mentioned above, then a new government must be formed without having a general election. This implies that the Leader of the Opposition would be invited at first instance to form a government, and if not, some other Member of Parliament who can demonstrate the confidence of the House.

It is only if such an alternative government cannot be formed that the option of dissolution arises.

For this, moreover, Parliament must pass a resolution by a two-thirds majority, which requires that most parties are satisfied that dissolution is the only option.

The principle of fixed-term Parliaments therefore is one of the striking innovations proposed in the Nineteenth Amendment Bill.All this accords to the Prime Minister a more central and less subordinate role in the day-to-day functions of government than has hitherto been the case. President Premadasa once complained that, as Prime Minister to President Jayewardene, he did not have powers equal to that even of a peon.

That is emphatically not going to be the case in the future. The Prime Minister will have full control over the Cabinet as well as, usually, the parliamentary majority.

This does not make the Prime Minister a constitutional equal of the President, but it certainly gives him the preeminent executive role under normal circumstances.

Finally, one of the most important innovations is the introduction of a constitutional limitation on the number of Cabinet and other Ministers.This addresses a massive problem with the Rajapaksa presidency in particular. It is now provided that, normally, the Cabinet should not exceed thirty members and no more than forty other Ministers in aggregate.

Independent institutions and good governance

However, if there is a ‘government of national unity’ comprising the two main parties represented in Parliament, then this is increased to forty-five and fifty-five, respectively.

Much of the now repealed Seventeenth Amendment framework is re-introduced, with the addition of certain safeguards to ensure that the problems that led to the non-implementation of that framework are avoided.

Thus the Constitutional Council is re-established, chaired by the Speaker and comprising of the Prime Minister, the Leader of the Opposition, one person appointed by the President, five persons nominated by the Prime Minister and the Leader of the Opposition, and one person nominated by agreement of the majority of other Members of Parliament represented parties other than those of the Prime Minister and the Leader of the Opposition.

The requirement of majority rather than unanimous agreement in respect of the last mentioned nominee is intended to avoid the problem that occurred before under the Seventeenth Amendment.

Likewise, the Speaker is required to ensure nominations are made when they are due, and most importantly, it is provided that the President must make the appointments to the Council within fourteen days of receiving nominations.

If the President fails or refuses to do so, then the appointments are deemed made by operation of law.

This principle is extended to recommendations of the Council with regard to appointments to the independent commissions, whereby appointments are again deemed made if the President has not acted within fourteen days.

New institutions

This addresses the adverse precedent set by President Kumaratunga in refusing to appoint one of the nominees of the Constitutional Council to the Elections Commission which contributed to the weakening of the Seventeenth Amendment from the beginning.

The Constitutional Council makes recommendations to the President to appoint the Election Commission, the Public Service Commission, the National Police Commission, the Human Rights Commission, the Commission to Investigate Allegations of Bribery and Corruption, the Finance Commission, and the Delimitation Commission.

Other institutions added to this by the Nineteenth Amendment Bill are the University Grants Commission and the Official Languages Commission. Two entirely new institutions are also established, namely, the Audit Service Commission and the National Procurement Commission.

The Bill makes elaborate provision for the composition, powers, and functions of each of the independent commissions.

The Constitutional Council must also approve presidential appointments to certain senior positions. These include the Chief Justice and Judges of the Supreme Court, the President and Judges of the Court of Appeal, the Judicial Service Commission, the Attorney General, the Auditor General, and the Inspector General of Police.

Finally, the right to information is established as a discrete fundamental right, enforceable by the Supreme Court in the exercise of its jurisdiction over fundamental rights. This will be reinforced by the proposed Right to Information Act.

The right to information as a fundamental right is available only to citizens, and is subject to certain restrictions. This restrictions clause prevents unnecessary or disproportionate abridgement of the right, and is more in line with international standards than the general restrictions clause in the fundamental rights chapter. It is inexplicable, therefore, why the opportunity was not used to introduce this as the restrictions clause applicable to the entire fundamental rights chapter. Similarly, it is perplexing why the proposed Right to Information Commission, which has the capacity to revolutionise the culture of governance, has not been given constitutional standing together with the other independent commissions.

Overall, these changes would seem to promote good governance by improving the constitutional framework for scrutiny, accountability, and transparency.

The rationale for each of them can certainly be traced back to concrete constitutional problems of the recent past, arising from presidential intransigence or excessive politicisation.

But the new framework also has the serious potential to result in constitutional deadlock and breakdown, and it could result in hyper-presidential authoritarianism being replaced by semi-presidential chaos, especially in a situation of ‘cohabitation’ where the President and the Prime Minister belong to different parties.

In the best possible reading, the new arrangements force the two key executive actors – the President and the Prime Minister – to share power and encourages political parties in the legislature to act with greater co-operation than has been the tradition.

Whether or not these aims are realised depends on how well the Constitution is implemented in the future, and to what extent those exercising political power are committed to a sweeping change in the culture of politics and governance.

The Sri Lankan experience in this respect has been less than exemplary in the past, and any optimism must be closely guarded. Electoral reforms are also currently being discussed, and this too will have important implications on the way new arrangements take shape in practice.

That there was no political consensus to reintroduce parliamentary democracy, in spite of the appalling consequences of uncontrolled presidentialism in the recent past, is noteworthy and deeply disappointing.

A substantial proportion of those who voted for Maithripala Sirisena in January 2015 did so in the belief that presidentialism would be abolished.

This has been thwarted by an opposition parliamentary majority obtained under completely different political circumstances in 2010, and by a tiny, but disproportionately vocal, element within the current government. It can only be hoped that this will not return to haunt us.

The writer is Senior Researcher on Constitutional Affairs, Centre for Policy Alternatives and Teaching Fellow, Faculty of Law, University of Edinburgh. He also served as adviser to the governments of Iraq and Nepal in the design of their new constitutions.