The Retrograde Step To Abolish The Progressive 19th Amendment Should Not Be Allowed!

By Mohamed Harees –AUGUST 23, 2020

Lukman Harees

‘Democracy means government by discussion, but it is only effective if you can stop people talking.’ ~ Clement Atlee

The recent elections in Sri Lanka , which saw a decisive shift in the popular mood, have brought the debate over constitutional reform into sharp focus and have already led the new government headed by President Gotabaya Rajapaksa to move hastily in this direction. Both President Gotabaya and Prime Minister Mahinda made the abolition of 19th amendment as the main election plank during the Presidential and Parliamentary elections. SLPP led by them secured a two-third majority in parliament during general elections held this month, thus paving way for these constitutional amendments. The Cabinet recently granted approval to abolish the 19th amendment to the 1978 Constitution and replace it with the 20th amendment.

The spurious argument that 19th spelled doom for Sri Lanka and therefore need to be abolished has been developed by political strategists to gain power and has no proper basis either constitutionally or otherwise. It presupposes that the country was in good shape before this amendment which is nonsensical to say the least. The fate which befell on the country in recent times was not due (even in part) to the ill effects of this Amendment, but due to the inefficiency and apathy of the Yahapalana leadership. On the contrary, the 19th Amendment only brought about much needed  limitations and restrictions on unlimited arbitrary Presidential powers which led to much abuse by giving wide powers to appoint any person to high offices in government as he/she wishes. Still the Presidential immunity which conferred on the holder of Presidential Office exempted him/her even against criminal conduct remains intact. The fact that the office of an Executive Presidency gave a form of stability to the country also proved to be a myth to say the least, ever since JRJ enacted this disastrous Constitution in 1978. Thus, despite being a crackpot Head of State, Sirisena should be given at least this credit – to have initiated this vital Amendment. Today, the people are talking about replacing one amendment with another of a Constitution to deal with Presidential powers. But, what happened to the continuous cries of the country to abolish the office of an Executive President?

The Amendment was passed in 2015 during the initial phase of the former Yahapalana rule led by President Sirisena and Prime Minister Wickremesinghe, almost unanimously voted by the Parliament including those in the SLPP camp today. Only Sarath Weerasekera voted against. Of course, 19th Amendment was surrounded with controversies and criticisms. However, despite being at the butt-end of much flak, and even as its critics found it falling short in some respects, this piece of legislation was hailed by many, including members of civil society, as undoubtedly one of the most progressive constitutional amendments which has ever been passed by the Parliament of Sri Lanka, According to experts, particularly, both the 17th and 19th Amendments were relatively progressive in that they established a Constitutional Council (CC), which was expected to de-politicise the process of making appointments, and thereby improve the legitimacy and independence of high offices and independent commissions. The CC and independent commissions have occupied a central place in constitutional discourse over the last two decades.

The statute sought to clip the President’s executive powers. The concentration of power in the presidency gradually sucked the life blood out of numerous public institutions including the judiciary, leading to a political culture in which the meaning and logic of independence, merit, and even efficiency were replaced by partiality, corruption, and nepotism.(S. Gamage & S.Hettige,‘Democracy, Ethno-Nationalist Politics and Patronage Sri Lankan Style’ Asian Studies Review). The manner in which appointments were made to the higher judiciary in the 1990s is a case in point. Judges like Sarath N Silva and Mohan Pieris were examples of corrupt appointments. But, the President’s decisions cannot be subjected to judicial review. The fate of the Permanent Commission to Investigate Allegations of Bribery or Corruption (CIABOC) is another example of the impact of politicisation on public institutions. It also to strengthen independent commissions, a progressive legislation in contemporary Sri Lankan history – the Commissions of the Elections Commission, Public Service Commission and Police Commission, to name just a few.

The Rajapaksa camp however viewed the 19th Amendment’s clauses as primarily intending to prevent its leaders’ return to power. According to experts, the 18th Amendment, which was applicable for a short time, in fact replaced the CC with a Parliamentary Council which had no teeth, no independence, nor expert representation. This amendment weakened the rule of law while it was in force in a drastic way. More specifically, they concerned reforms to the power of the executive president to make appointments to several high public offices and independent commissions.

The 19th Amendment came into focus after the 2018 constitutional crisis in Sri Lanka which began with the removal of Wickremesinghe from the office of the prime minister by the then President Sirisena in a surprise move. PM Ranil Wickremesinghe refused to step down citing it as an unconstitutional move, thereby the constitutional paradox became exacerbated. The Supreme Court subsequently quashed the then President Maithripala Sirisena’s move to dissolve the Parliament unconstitutionally. Before the 19th Amendment, the President enjoyed the power to dissolve the Parliament after one year from the date of the General Election, which was extended to 4 ½ years under the said Amendment unless the Parliament decides to be dissolved by itself.

It was foolhardy to suggest that the safeguards against the President’s arbitrary powers under this Amendment will not work on the ground underlining some isolated incidents which occurred under extraordinary circumstances. In fact, anti-19th Amendment camp then raised some criticisms based on Article 46(2) of the Constitution, in the context of the arguments that the country ended up in a deadlock due to the President and the Prime Minister being elected from two different political parties and that the President does not have the power to remove the Prime Minister or any member of the Cabinet. However those arguments that strengthening the position of the Prime Minister commanding most confidence of the Parliament can lead to the creation of two power centres in government appear nonsensical as such Constitutional practices are being successfully and efficiently followed in the other countries notably France, considered as the ideal model of stable governance. Besides, these types of deadlocks were not new; but were are prevalent in Sri Lanka, even before the 19th Amendment too.

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