March 21, 2015, 8:02 pm
The proposed 19th Amendment to the constitution is a far cry from what the public was made to expect in terms of constitutional reform before the presidential election. Before the election, what we saw was an opposition platform that fulminated against the executive presidential system and promised its abolition. At his first appearance at Sirikotha, the common opposition candidate Maithripala Sirisena in order to highlight how he will dismantle the presidential system said that even after becoming president, he will continue to address Ranil Wickremesinghe as ‘Sir’ and that he will never step into any of the presidential residences in Colombo or the outstations. The entire election was fought on the premise that if Maithripala becomes president, all executive power will be transferred to the prime minister and the president will become a ceremonial president. In fact UPFA speakers at that time were asking derisively from the stage, if Maithripala was contesting for the position of president only to transfer all his powers to someone else, what is the point in voting for him? There is no doubt about the fact that when people voted for Maithripala, given the rhetoric they heard from the stage, everybody actually expected power to be transferred from the president to the prime minister (and the cabinet).
But 19A does not reflect that expectation. In fact it seeks to retain the executive presidential system virtually untouched. The constitutional amendment seeks to ‘repeal’ the existing Article 30 of the constitution which deals with the presidency and replace it with another Article. The repeal of an entire article and substitution of another in its place would give one the impression that sweeping changes would be made in that Article. The existing Article 30 of the constitution says that ‘There shall be a President of the Republic of Sri Lanka, who is the Head of the State, the Head of the Executive and of the Government and the Commander in Chief of the Armed Forces’ and that ‘The President of the Republic shall be elected by the People and shall hold office for a term of six years.’ As such this is the Article in the constitution which establishes the basic contours of the presidency. Believe it or not, in the proposed 19th Amendment, this vital article remains completely unchanged except in substituting the word ‘five’ instead of the present ‘six’ with regard to the number of years a president will hold office! Even after the amendment is passed the president will continue to have full executive powers and be not just the head of state but the head of the executive and of the government as well.
The same kind of perfidy has been practiced with regard to the repeal of Article 33 which deals with the powers of the president. The 19th Amendment seeks to ‘repeal’ the exiting Article 33 but what have they replaced it with? As in the previous instance, they have included a few NGO type words about the president being responsible for ‘religious and ethnic harmony’ and ‘national reconciliation and integration’ and then they go on to adopt word for word everything that the existing Article 33 has in terms of presidential powers! So nothing has basically changed except the cosmetic addition of Article 33A which seeks to make the president ‘responsible to parliament’ in the exercise of his functions.
This Article 33 A is a sham because even under the present provisions of the constitution, the president is in fact responsible to parliament. Article 42 of the present constitution goes as follows: "The President shall be responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution and any written law, including the law for the time being relating to public security." So this Article 33A in 19A is only designed to hoodwink the public by giving people the impression that it seeks to make the president responsible to parliament. The fact is that the president always was responsible to parliament from the day that the 1978 constitution was promulgated.
So if 19A is touted as a case of reducing the powers of the executive president, it’s a completely dishonest scam. As far as presidential powers go, virtually nothing has been changed except the reintroduction of the so called independent commissions which would restrict some of the president’s powers in making appointments to important positions. This leaves the executive presidency as it was in 2005 when Mahinda was first elected president. 19A also seeks to reintroduce the two term limit that existed before the passage of 18A in 2010.
While retaining the powers of the executive president virtually intact, 19A also seeks to bring about a situation of dual control with the prime minister being given certain powers that he does not have at present. While the president would be the head of the executive, the 19th Amendment makes the prime minister the head of the cabinet and it will be the PM not the president who will appoint the cabinet and assign subjects to them. It is obviously because such powers are assigned to the prime minister that the UNP agreed to 19A even under protest probably on the understanding that something is better than nothing. The power of the president to dissolve parliament after one year has been taken away and he is unable to dissolve parliament before the expiration of at least four and a half years of its term.
But when you designate the president as the head of the executive and the prime minister as the head of the cabinet, that creates an overlap of designations. What really is the ‘executive’ other than the cabinet? Designating one as the head of the executive and another as the head of the cabinet, will lead to endless turf wars between the president and the prime minister.
Even though the position of prime minister has in fact been imbued with certain constitutional powers under 19A, the reason why even the person who drafted it - Dr Jayampathy Wickremeratne - is unhappy with the end product is clear. Addressing a seminar last week at the OPA auditorium, Dr Wickremeratne said that according to the 19A, executive power still remains with the president. He said that the crux of the matter is that even under the 19th Amendment, the president still remains the head of the government which should have shifted to the prime minister. He said that this idea that is being propagated that what was promised was only the removal of certain ‘arbitrary powers’ of the presidency was a canard and that the word arbitrary was an adjective used to describe the whole presidential system and not to identify the powers that should be removed.
Reading out the relevant passages in Maithripala’s election manifesto, he said that the whole arbitrary presidential system was to be scrapped and that that this was the idea that was conveyed to the public on the election platform. He called on those now opposing the abolition of executive powers, not to destroy Maithripala Sirisena as it is he who will be blamed for the continuation of the executive presidential system. Speaking at the same occasion, Nirmal Ranjith Devasiri said that Champika Ranawaka was playing a major role in blocking the abolition of the executive presidency and that he is working with the long term plan of becoming president himself. Devasiri said further that if Champika becomes president he will become a dictator worse than Rajapaksa.
