19th Amendment:

Getting there!

By Dr. Paikiyasothy Saravanamuttu

Dr. Paikiyasothy Saravanamuttu Pic: Courtesy frontlinedefenders.org

The Supreme Court has communicated its determination on the 19th Amendment to the Speaker, needing a referendum in respect of certain provisions, which the government will jettison from the amendment as per its promise to bring in constitutional reform that does not need a referendum, within 100 days of the new presidency.

The centerpiece of its election platform and of its governance reform program is the diminution of the powers of the executive presidency and a new balance of executive powers in favour of the Prime Minister and Parliament.

In this respect the Amendment is in the right direction and commences what one hopes is a project of constitutional reform, which will result in enduring democratic governance, peace and unity.

The rest of the project though, will fall to the next parliament as this one is to be dissolved once the 19th Amendment is passed after the Avurudu break.

One fervently hopes that the country will return a parliament seriously committed and able to the task and that it will not be terminated with the 19th Amendment as is. There has been a lot of fulminating by what passes for the Opposition over the manner in which the Amendment has been presented, conveniently forgetting the egregious assault on process that was the 18th Amendment, which all of them supinely, yet vociferously supported.

The process by which the 19th Amendment has been presented is less than ideal and while the comparison with the 18th may be mildly characterised as one between apples and oranges, it should not be forgotten that they are both fruit.

The 100-day program perhaps has this government trapped into a self-imposed deadline, which has resulted in it losing marks. The focus of the debate on the Amendment and in the main of the determination of the Court has been on the diminution of the powers of the executive president.

In the public debate there are those who still maintain that the executive presidency is pivotal for a strong State, the defence of national sovereignty, political stability and economic development – the defeat of the LTTE is cited as the ultimate proof of this.

History indicates otherwise – the executive presidency has presided over two insurgencies since it was constituted, millions of dollars in foregone investment and the erosion of democratic governance and fundamental rights.

Important issue

It is also worth noting that an insurgency was put down under the previous constitutional dispensation with a lot less bloodshed and controversy.

The more important issue, therefore, is not the executive presidency per se but the issue that has also featured in public debate of transferring the executive powers of the President to the Prime Minister.

In this context it is worth further noting that debates about 'executive prime ministers' have abounded in Britain for instance where holders of that office of relatively recent vintage such as Thatcher and Blair have been accused of being more presidential than primus inter pares as the Prime Minister is traditionally supposed to be.

Furthermore, it is decades since a former Lord Chancellor, Lord Hailsham, referred to the system of government in Britain as one of an 'elective dictatorship' on account of the dominance of the executive and the weakness of parliament.

Indeed if constitutional reform for democratic governance is to have enduring effect, the committee system in parliament has to be strengthened to ensure serious oversight, monitoring and accountability of the executive. This awaits the next parliament.

The determination of the Court in respect of the powers of the President and Prime Minster is that certain paragraphs of Clause 11 of the Amendment need a referendum in addition to a special majority – two-thirds - of Parliament.

These paragraphs deal with the Prime Minister being the head of the Cabinet of Ministers, determining the number of Cabinet Ministers, Ministries, assignment of subjects and functions to Ministers and the Prime Minister making changes to the above.

Reality

The determination states that: In the absence of any delegated authority from the President, if the Prime Minister seeks to exercise the powers referred to in the aforesaid Clause, then the Prime Minister would be exercising such powers which are reposed by the People to be exercised by the Executive, namely, the President and not by the Prime Minister. In reality, the Executive power would be exercised by the Prime Minster from below and does not in fact constitute a power coming from the above, from the President.

It further states: The President cannot relinquish his Executive power and permit it to be exercised by another body or person without his express permission or delegated authority… Thus permitting the Prime Minister to exercise Executive power in relation to the six paragraphs referred to above had to

be struck down as being in excess of authority and violative of Article 3.

Article 3, an entrenched clause of the Constitution – i.e any Bill for the amendment or for the repeal and replacement of or which is inconsistent with any of its provisions, requires both a two thirds majority in Parliament and approval at a referendum – reads:

...sovereignty is in the people and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise.

It would seem that in practice, the relationship between the President and Prime Minister will be of critical importance.

The Prime Minister could presumably request the President to do what is contained in these paragraphs and the President on the other hand could refuse. Clause 6,

Article 33A (2) of the Amendment remains: The President shall, except in the case of the appointment of the Prime Minister or as otherwise required by the Constitution, act on the advice of the Prime Minister.

In what may have been intended to be a pithy 17-page determination, the Court may nevertheless have been less than coherent in clarifying the permissible constitutional bounds of the balance of powers sought by the new political dispensation. As to what it will be, the New Year will tell.