The 19th Amendment:

Making democracy more meaningful

by Jayantha Dhanapala

It is just over a month since this important Constitutional amendment was formally certified by the Speaker of Parliament, although it was passed on April 28. In a 225-member legislature, this revolutionary piece of reform was adopted with 212 voting in favour, one against, one abstaining and 10 being absent. We undertake this task out of a conviction that the significance of the amendment should be conveyed to you in the context of the revitalisation of democracy in Sri Lanka since the Presidential Election of January 8th this year.

The adoption of the 19th Amendment is symbolic of Sri Lanka’s re-integration with the mainstream of democratic countries reaffirming the sovereignty of Parliament and complying with the Latimer House Principles of the Commonwealth at a time when, appropriately, Sri Lanka holds the Chair of the Commonwealth.

The Constitution of any country is its basic fundamental law and the bedrock of its system of governance. Following our independence in 1948, the country adopted the so-called Soulbury Constitution from the erstwhile colonial power, which established a bicameral parliamentary democracy.

Separation of powers

With some changes like the abolition of the Senate, this Constitution continued till 1972 when the Republican Constitution was adopted through a Constituent Assembly, with an elected Parliament and an appointed President. In 1977 with the landslide electoral victory of the United National Party its leader, J. R. Jayewardene, interpreted this as a mandate to fulfill a long cherished personal ambition of enacting a new Constitution with an Executive Presidency and an elected Parliament.

There was no referendum and as Prime Minister he was deemed to be the first Executive President for a term of six years. The combination of elements from the French Constitution led to this new Constitution being called a ‘Gaullist Constitution’, with none of the checks and balances which the US model of an Executive Presidency contained.

The vital separation of powers among the Legislature, the Executive and the Judiciary was not maintained. Jayewardene was both Head of State and Head of Government and was elected in 1982 for another term.

Jayewardene was succeeded by President Premadasa who was assassinated by the LTTE and in the ensuing election Chandrika Bandaranaike Kumaratunga was elected President. She and her successor Mahinda Rajapaksa were elected on a pledge to abolish the Executive Presidency, which was by then widely perceived to be a totalitarian form of government.

In the case of the former, she lacked the two-thirds majority needed for a change of Constitution. With the latter, even with a two-thirds majority constructed through crossovers, on 9th September 2010 his Constitutional change was the infamous 18th Amendment which repealed the 17th Amendment and the independent commissions it set up, plus abolished the two-term limit of the Presidential office. Since 2010, the cry for the abolition of the authoritarian Executive Presidential system and a return to the system of parliamentary government gathered momentum. The final adoption of the 19th Amendment, although not fully satisfying that demand, has to a large extent rectified the democracy deficit in the Executive Presidential system.

Civil society was especially forceful and influential in its advocacy of the abolition of the Executive Presidential system and the Ven. Madulwawe Sobitha Thera, head of the National Movement for Social Justice, was at the vanguard.

By identifying the Executive Presidency as the root of much of Sri Lanka’s political, economic and social malaise, he succeeded in attracting a broad range of support from politicians, intellectuals, trade unionists, religious leaders from all religious persuasions, lawyers, retired public servants, civil society activists and many others who wanted a fundamental constitutional change.

Glass half full

The search for a Common Candidate to espouse the cause of the abolition of the Executive Presidency ended with the emergence of Maitripala Sirisena. His dramatic campaign against enormous odds and his success paved the way for the adoption of the 19th Amendment, which featured prominently in the election manifesto and the ‘Hundred Days’ program.It was anticipated that with a two-third majority only and no referendum possible in the circumstances, a total abolition of the Executive Presidency could not take place.

Whether the glass is now half full or half empty will continue to be debated and not only by constitutional lawyers. Certain requirements in the proposed amendment were stipulated by the Supreme Court and were adopted accordingly.

As the Amendment was discussed at various stages it was subject to changes right up to the Committee stage in Parliament.

The composition of the Constitutional Council was the subject of much debate until a compromise was forged.

A striking feature during the negotiations was the patience displayed by the President himself and his unswerving commitment to achieving the objective of the change willingly sacrificing the powers, which he had assumed through his election. Indeed his voluntary abbreviation of his own term of office from six to five years and his decision not to run for a second term set a shining example to inaugurate a new political culture of humility before the people.

19A changes

Among the many changes brought in by the 19th Amendment are:

** The effective repeal of the 18th Amendment and in particular the absence of term limits on holding Presidential office by the specific disqualification of persons who have been twice elected to such office, who are under 35 years of age and dual citizens;

* The term of the President and of Parliament is reduced to 5 years;

* While the duties of the President are outlined, and includes the promotion of national reconciliation and integration, it is clear that the President is responsible to Parliament and cannot dissolve Parliament at his own discretion during the first four and a half years;

*The President cannot remove the Prime Minister at his discretion;

* The re-establishment of the independent Commissions and they include the Election Commission, the Public Service Commission, the National Police Commission, the Audit Service Commission, the Human Rights Commission, the Commission to Investigate Allegations of Bribery and Corruption, the Finance Commission, the Delimitation Commission and the National Procurement Commission insulating these vital arms of government from politicisation;

* The establishment of a Constitutional Council to approve persons for important public offices and to recommend persons for appointment to the office of Chairman and members of the above Commissions;

*The inclusion of a citizen’s right to information upholds democratic principles of transparency and accountability;

* The limitation of the size of the Cabinet to 30 except for the transitional ‘government of national unity’ in the next Parliament, which may go up to 45 for Ministers;

* The unsatisfactory phenomenon of hasty legislation through urgent bills is rectified by the requirement of 14 days notice for the public to consider a Bill by way of a Gazette before it goes to Parliament;

* The establishment of a National Procurement Commission and an Audit Commission helps to prevent corruption restoring public confidence in the handling of public finance and ensuring a rule based investment climate.

Restoring confidence

The cumulative impact of the above features and more has been to restore the confidence of the international community in Sri Lanka as a democracy. As a pluralist society, the Amendment has reinforced inter-ethnic and inter-religious trust and confidence making democracy more meaningful and effective.

The shared values set out in the United Nations Millennium Declaration adopted by the General Assembly serve as a common ethical base. They comprise six of the most basic aspirations of humankind – freedom, equality, solidarity, tolerance, respect for nature and shared responsibility. From each of these fundamental values we draw our guidance for the specific action plans to which the international community must commit itself. It is a moral compass for us all.

Individually these values represent powerful forces that have inspired and motivated humankind throughout millennia of history. They have been the accelerators of human progress. Collectively, they also represent the benchmark against which we must judge our performance as individual nations and collectively as the world community in taking humankind forward to a better and safer world.

Six years after the brutalizing conflict imposed on our nation by a secessionist-terrorist group we are only just beginning to undertake the sincere task of reconciliation and development recognizing that asphalt, brick and mortar are not enough to repair the damage of war.

Truth seeking, justice, and the repair of wrongs that led to conflict are fundamental. For that democratic space has to be created and a new atmosphere of candour and confidence has to be established. The adoption of the 19th Amendment is a milestone in that process. You have all been a witness to the making of history in Sri Lanka and we value your understanding and good wishes on our democratic nation-building journey.

Excerpts of the keynote address at a special discussion on ‘19A : Landmark of Democratic Revival’ organised by the Presidential Secretariat. Dhanapala was the former Under Secretary-General of United Nations and currently serve as the Presidential Advisor on International Affairs.