19th Amendment:

A promise kept and the battle is on...

by Uditha Kumarasinghe

In a bid to ensure the rule of law in the country, the government as pledged in its Hundred Day Program gazetted the 19th Amendment to the Constitution early this week, scrapping certain powers vested with the Executive President and empowering independent Commissions and the judiciary.

However, the proposed legislation needs to win the support of all major political parties representing Parliament to be enacted into a law.

Divergent views

Political parties representing Parliament hold divergent views on the 19th Amendment. The main Opposition United People’s Freedom Alliance (UPFA) and the Tamil National Alliance (TNA) have said they will further study this piece of legislation before reaching a final conclusion, while the Janatha Vimukthi Peramuna (JVP) and the Sri Lanka Muslim Congress (SLMC) both hail the government's initiative to introduce this key constitutional amendment, which was an integral part of President Maithripala Sirisena's election manifesto.

The United National Party (UNP)- led government is fully confident of the draft bill being passed within the stipulated time frame of hundred days.

However, the Jathika Hela Urumaya (JHU), a coalition partner of the government has warned they would oppose the draft bill being moved in Parliament as an urgent bill, as the government has breached the consensus reached upon at the Party Leaders meeting and the Cabinet meeting.

Justice and Labour Relations Minister Dr.Wijeyadasa Rajapakshe commenting on the government’s decision to gazette the 19th Amendment said, “We decided this after having prolonged discussions with various stakeholders and finally it was fortunate that they agreed on several main points. But still, we have not been able to resolve the electoral reforms issue. For that too, we are having discussions and meetings with political parties on daily basis,” he said, explaining that it was up to the Parliament decide on adopting the legislation or not.

The Minister was however confidant of the draft bill being passed and said the government will not only present it Parliament but also pass it in Parliament within the hundred days.

The bill can be presented in Parliament within 10 days of the gazette notification being published. “The draft bill was gazetted on March 16 so that we can present it in Parliament in any date after March 26,” Rajapakshe said, pointing out the salient features of the 19th Amendment would be the transfer of most of the powers of the Executive Presidency to the Cabinet.

“Two terms period of the President will remain while the ceiling which was removed by the 18th amendment will be abolished. The President's term will be restricted only to five years and the Parliament term will also be reduced to five years. In respect of fundamental rights jurisdiction, the immunity against the President will be removed. Nine independent commissions will be established. When amnesty is to be given, it can only be given on the recommendation of Justice Minister,” he explained.

Breached

JHU National Organiser and Western Provincial Councilor, Nishantha Sri Warnasinghe, told the Sunday Observer the JHU would not support the 19th Amendment as the government has breached the consensus reached at the Party Leaders meeting and the Cabinet meeting.

Therefore, a serious problem has arisen on the content of the 19th Amendment due to the government's failure to act in a transparent manner. He charged the proposed 19th Amendment lacks its bona fides- that it has lost its true purpose.

Various contradictory facts are included into this draft document, which were not agreed upon whatsoever at those two meetings, he pointed out.

Warnasinghe said if the draft bill is passed in Parliament, it would pave the way to create a very complex situation in the country and it was because of this the JHU could not agree on the draft bill.

The JHU is of the view the this draft should be discussed further and hence would oppose it being moved in Parliament as an urgent bill, he said, explaining that extensive discussions were held on the 19th Amendment at the Party Leaders and Cabinet meetings held on March 15.

“Though various contradictory views were expressed and disputes occurred at the meetings, a consensus was finally reached upon to print the gazette of the 19th Amendment. However, after the gazette was released, it became obvious the Government had breached the agreement reached at the meetings. Because some of the contents in the gazette were not discussed whatsoever at the Party Leaders meeting or Cabinet meeting,” he said.

SLFP National Organiser, MP Susil Premajayantha, said they would be meeting with a panel of constitutional lawyers and would further study the gazette notification to see whether the Party could agree to pruning the Executive Presidency and the sections that refers to the pruning. “If the entire draft is in compliance with our position, then it would be all right.

So we will go through it and see whether these sections are put in order,” he said, adding, “We can't fully abolish the Executive Presidency at this stage. In that case, we will have to go for a referendum.

If the entire Executive Presidential system is to be changed, we need a mandate from the people for that. That is why the incumbent government has proposed to prune the executive powers and also to introduce independent commissions to restore good governance.”

JVP Parliamentarian Vijitha Herath said the JVP hasn’t altered its stance on wanting the Executive Presidency fully abolished. “But the 19th Amendment does not refer to fully abolishing the Executive Presidency and it has only recommended that the powers of the Executive Presidency be pruned,” he said, pointing out however, the JVP was pleased about the government succeeding to gazette the 19th Amendment to the Constitution and at least taking measures to trim certain dictatorial powers of the Executive Presidency.

Abolished

It would be more appropriate if the Executive Presidency can be fully abolished, he said claiming that under the prevailing political atmosphere, the party was optimistic about the amendment introduced even at this level.

TNA Parliamentarian Mavai Senathirajah said the 19th Amendment to the Constitution had been approved by the Cabinet and gazetted.

“We are going to further study its real position and contents. However, we have noted that the TNA will support the government's endeavor to introduce the 19th Amendment,” he said, explaining that after studying the contents, they would appoint a subcommittee to discuss and decide on the matter.

“The Parliamentary Select Committee may also further discuss this matter. We will submit our points of view on this matter in Parliament and see whether there is any need to further amend it. TNA's position is to fully abolish the Executive Presidency,” he said.

SLMC Secretary General and State Minister of Health, M.T. Hassen Ali said the SLMC would support the implementation of the 19th Amendment because the party had committed a grave mistake by supporting the 18th Amendment.

“There are some good features in the 19th amendment. So we have already taken a decision to support it. According to the proposed 19th amendment, some of the salient features of the executive powers of the President will be pruned. That would pave the way to strengthen the independent nature of democracy.

This is one of the essential components we need in this country, and it will put the entire process of democracy back on the right track to a certain extent.

He said the Amendment has to be introduced as an urgent bill, because the government is going to face an election.

“After the election, we expect that democracy will be strengthened. Under that norm, the elections can be held.

We would also be able to see a powerful Election Commissioner in office,” he said, adding that the government will also retain all the independent commissions in place.

“So it will be a different environment when the election comes. I think this 19th amendment draft bill will be coming up within the next two weeks. We are of the view that the Executive Presidency should not be fully abolished and certain powers should be with the Executive President. Parliament should also have more powers.

So it should be a balanced position where both must share equally. But the Parliament should be given more weight-age.

Excerpts of the 19th Amendment to the Constitution

According to the proposed 19th amendment, eight key powers vested with the Executive President have been be amended.

However, the President would remain as the Head of State, Head of the Cabinet and the Commander in Chief of the Armed Forces.

He would also retain the power to appoint the Prime Minister and the Cabinet as well as the Heads of the Army, Navy and Air Force. The President shall have the power to make the Statement of the Government Policy in Parliament at the commencement of each session of Parliament, to preside at ceremonial sittings of Parliament and to summon, prorogue and dissolve Parliament.

Under the proposed constitutional reforms, the term of the Executive President is due to be reduced from six to five years. Yet another important constitutional amendment is that the maximum term of a President to hold office has been limited to two terms.

The President will be responsible to Parliament for the due exercise, performance and discharge of his or her powers, duties and functions under the Constitution and any written law, including the law for the time being relating to public security.

The Presidential immunity from being sued over matters conducted during his period of office is to also be removed under the proposed reforms.

The main constitutional amendments of the 19th Amendment include the transformation of the Presidential form of government to a Presidential-Parliamentary system of government and the restoration of the 17th Amendment to the Constitution.

The new reforms will result in the President losing the power to dissolve Parliament after one year of its election. According to the proposed reforms, the President cannot dissolve the parliament until 4 years of election.

Whenever the President by reason of any illness, absence from Sri Lanka or any other cause is unable to exercise, perform or discharge the powers, duties and functions of the office of President, Speaker shall act in the office of the President during such period. If the office of Speaker be then vacant or the Speaker is unable to act, the Deputy Speaker shall act in the office of the President.

Cabinet will be vested with the power of appointing Secretaries of Ministries while the Cabinet of Ministers will be appointed by the President following consultations with the Prime Minister.

The number of Cabinet Ministers will be restricted to 30 while the number of Deputy Ministers will be 40. There will be a Secretary to the Cabinet of Ministers appointed by the President.

There shall be a Cabinet of Ministers charged, with the direction and control of the Government of the Republic. The Cabinet of Ministers shall be collectively responsible and answerable to Parliament. The Prime Minister shall be the Head of the Cabinet of Ministers.

The President shall appoint as Prime Minister the Member of Parliament, who , in the President's opinion, is most likely to command and confidence of Parliament. Every Minister appointed shall be responsible to the Cabinet of Ministers and to Parliament.

There will be a Constitutional Council which shall consist of Prime Minister, Speaker, Opposition Leader, one person appointed by the President, five persons appointed by the President on the nomination of both Prime Minister and Opposition Leader and one person nominated by agreement of the majority of the Members of Parliament belonging to political parties or independent groups. Speaker shall be the Chairman of the Council.

Apart from this it has also been decided to re-appoint the independent commissions such as Election Commission, Public Service Commission, National Police Commission, Audit Service Commission, Human Rights Commission of Sri Lanka, Commission to Investigate Allegations of Bribery or Corruption, Finance Commission, Delimitation Commission, National Procurement Commission, University Grants Commission and the Official Languages Commission.

No person shall be appointed by the President to any of the Offices specified in these Commissions unless such appointment has been approved by the Council upon a recommendation made to the Council by the President.

There will also be a Public Service Commission which will consist of nine members appointed by the President on the recommendation of the Constitutional Council, of whom not less than three members will be persons who have had over 15 years experience as a public officer.