19th Amendment – Chaos Or Nepotism?

By Samantha Ratwatte-June 21, 2019, 8:49 pm 

President’s Counsel

The declared aim of the 19th A mendment was to curb the Executive power of the President with the lofty ideal of creating better governance to achieve the ultimate goal of "Good Governance ".

However, in view of the Judgment of the Supreme Court with regard to the 13th amendment,which stated a federal structure would automatically be created if the executive Presidency is abolished while retaining the Provincial Councils, the executive Presidency itself had to be retained.

The public opinion created against the Executive Presidency since its inception prevented our policy makers from engaging in any form of objective evaluation of the benefits of a system where the executive power and the legislative power are separated with suitable checks and balances before undertaking "project 19th Amendment "

As a result the 19th Amendment which was touted as a panacea for all ailments of the Country, saw the light of the day without any attempt to reform the system based on clear separation of powers.

Many good souls believed the undemocratic features in the Constitution were solely due to the executive powers being vested in the office of the Executive President.

Thus, they were blinded to the fact that the malady may have been due to the executive power and the ability of bringing laws both being vested in a group of politically aligned individuals.

Based on the notion that spreading out executive power was the means of curing the defects in the system , executive power was spread out into multiple institutions under the 19th Amendment.

The resultant "better Democracy " at least in the minds of the genuinely convinced, was the messiah for achieving effective, efficient, corrupt free and smooth governance while preserving all of what the Country had achieved previously.

They thought that by taking off certain executive powers vested in the President and spreading them out, even to the extent of allowing certain "unelectable" persons to exercise executive power would create this magical formula of governance which could auto pilot the Country into an "enlightened "one.

They in their wisdom would have thought that "mundane" matters such as security of the State and development of the economy would look after themselves once such a society is created.

However, some argued that the hidden aim of the 19th Amendment was to prevent some of those who were in power prior to 08th of January 2015 from coming back into power or having anything to do with the reins of power.

Nevertheless, if one takes an objective view of the 19th Amendment after experimenting with it, one gets the feeling that these aims, namely the declared and the alleged hidden, are both not achieved.

Instead, the 19th Amendment has created primarily a dichotomous power structure preventing any form of meaningful governance unless there is complete unity of purpose at least in the President and the Prime Minister.

The scheme in the 19th amendment can only take off if the President and the Prime Minister work in absolute harmony without any differences whatsoever.

In two recent separate articles by Dr Nihal Jayawickrama and Prof. G.H Peiris respectively, reference has been drawn to certain provisions of the 19th Amendment which demonstrate the removal of certain powers in the President after the next President is appointed (in view of the transitional provision of the 19th Amendment) and the continued existence of certain powers in the President even after the next President is appointed.

Prof.Peiris explains how the next President too would wield Executive power to an extent that would influence the day to day running of affairs of the Country while Dr.Jayawickrama explains how the President would be unable to exercise any meaningful power.

In this backdrop the purpose of this article is to discuss whatever the declared or the hidden intention may have been, the actual effect of the 19th Amendment in the day to day governance of the Country.

This also seeks to suggest certain remedial measures to be in line with the declared objective of creating Good Governance leading to effective, efficient and corrupt free governance.

If one looks at the 19th Amendment as a whole, what it has done is to have scattered the Executive powers that the Elected President of the Republic was in control of , and made governance impossible without the absolute coordination and the corporation of at least the Prime Minister.

In effect what this Amendment has done is to weaken the Nation State by preventing meaningful governance. After the 19th amendment the institutions of the President and the Prime Minister can make the other redundant by non co-operation.

Now I would demonstrate the reasons for saying so with reference to the various Articles in the 19th Amendment.

Article 30 makes the President Head of the State, Head of the Executive and of the Government and the Commander -in-Chief of the Armed Forces. He also declares war and peace.

However, as Dr. Nihal Jayawickrama has pointed out in view of the transitional provision (Section 51 of the 19th Amendment) it is only the current President who would continue to hold the Ministry of Defense.

Any future President, though being the Commander-In-Chief of the Armed Forces, Head of the Executive and of the Government would not be able to hold a specific Ministry including that of the Minister of Defense.

Thus he may declare war but would not be able to fight it without the support of the Defense Minister who is appointed on the recommendation of the Prime Minister.

On the other hand the Defense Minister cannot be directed by the Prime Minister to fight a war without the President declaring one and giving Orders as the Commander-in-Chief.

As correctly pointed out by Dr. Jayawickrama, in terms of Article 43 (2) the President can only appoint as Ministers, persons from among the Members of Parliament on the advice of the Prime Minister. This means, as the President is not a Member of Parliament, he would not able to hold any Ministry.

However, though the President has to seek the opinion of the Prime Minister in the appointing of specific Ministers, he still decides on the number of Ministers (subject to restrictions placed by the Article 46 (1) ) and their subjects and functions in terms of Article 43 (1).

The President also may at any time change the functions, subjects and composition of the Cabinet of Ministers without the sanction of the Prime Minister in terms of Article 43 (3).

The President also appoints all Secretaries to the Ministries. Vide. Article 50 (1)

Thus, we have a situation where though the Prime Minister may decide who should be a Minister, the subjects and the functions of such Ministers would be decided by the President. The assignment of Secretaries to those Ministries would also be by the President.

Therefore, without the absolute cooporation of both the Prime Minister and the President, no Ministry would be able to function.

Furthermore, Article 42 (3) states that the President shall be a member of the Cabinet and the Head of the Cabinet of Ministers. This means that the holding of Cabinet meetings have to be facilitated by the President.

The President also in terms of Article 33 (2) (a) makes a Statement of Government Policy in Parliament at the commencement of a session and that function is not with the Prime Minister.

Therefore, if the President and Prime Minister do not agree on the Government Policy the Government will have to function without a declared policy. The President can keep on appointing Secretaries whom he wants and the Ministers would have to carry out their programme of work through these Secretaries whose appointment and removal is with the President.

The Cabinet of Ministers can be shifted at the whim and fancy of the President if he does not agree with the Prime Minister similar to the shifting of Secretaries.

The President’s immunity is only assailed in terms of the Proviso to Article 35 (1) and that is by an application to the Supreme Court under the Chapter which protects Fundamental Rights.

Such Application would be against the Attorney General and each time the Prime Minister feels that the President has violated his Fundamental Rights he may go to the Supreme Court.

It is only if the Supreme Court considers such act of the President as a violation of a Fundamental Right of the Prime Minister or some person, a direction can be made to the Attorney General to rectify the same.

Thus absolute chaos would reign due to the 19th Amendment unless there is perfect understanding and mutual respect between the President and the Prime Minister.

Nevertheless, there is some merit in the argument that some benefit has accrued to the country that the creation of the Constitutional Council, whose responsibility is the appointment of certain commissions and the individuals to the posts given in the schedule.

However, the Constitutional Council is expected to formulate rules as to how these appointments are to be done. Vide. Articles 41B and 41C. Up to to now no such rules have been devised by the Constitutional Council to the knowledge of the public.

Whether the Constitutional Council creates such systems and procedures or not, there is nothing anybody can do about it. Therefore, if the Constitutional Council rejects the nominee of the President without any valid reason, the President can keep on sending names and the Constitutional Council can keep on rejecting such names. The President can also keep on sending names to the Constitutional Council knowing fully well that it might not approve them. This again creates a situation where the country becomes ungovernable.

If one peruses the Articles in relation to the exercise of powers of the President, one can see that most of those powers are curbed and in exercising of these powers, the President is answerable to Parliament. For instance, S6 of the 19th Amendment states that the President is responsible to Parliament when exercising, performing and discharging of his duties under any written Law, including in relation to public security.

On the other hand, the Constitutional Council is immune from any sort of legal action by any Court and no person or institution can question the decision of the Constitutional Council. Vide. Article 41

Thus in theory the 19th Amendment makes the Executive answerable to the Parliament while making the Parliament not answerable to any authority whatsoever.

Had there been a harmonious separation of powers between the institutions; Parliament would not have been vested with such authority. An authoritarian institution in whatever form, be it the President or the Parliament, is a clear violation of the principles of separation of powers.

While the framers of the 19th Amendment made sure that in exercising Presidential powers the President is answerable to Parliament, they have also made sure that the Prime Minister is not subjected to any sort of review by any institution whatsoever.

Nowhere in the 19th Amendment has it been mentioned that the Prime Minister’s powers are subject to any form of limitation. However as, Article 42(3) states that the President shall be the head of the Cabinet of Ministers and the Prime Minister cannot carry out the functions of governance without the cooperation of the President .

Cooperation of those who would be politically opposed to each other would be an impossibility and even if politically similar views are held, if there are personality clashes between the Prime Minister and the President as is there now, the country becomes ungovernable.

This is not to say that individual abilities of the individuals holding these offices ought to be discounted and the individuals holding these offices can make a convenient excuse of the nature of their office to cover up their incapability. However, what would be essential is for the individuals who hold the offices of Prime Minister and the President would be to agree on every aspect of governance for the Country to function smoothly.

These being some of the glaring short comings of the 19th Amendment, it is suggested that the system of checks and balances between the Executive arm without scattering the Executive powers to various parts and giving the entire Executive Power to the President would have created a better system.

For instance, the rules for the selection to posts could have been formulated and given statutorily to the Constitutional Council. The Constitutional Council could have been directed to call upon citizens of the Country either on their own or for the citizens themselves to apply to be appointed to these high posts and the selection process could be done based on the criteria provided statutorily while several names (may be 3) could have been sent to the President.

The President could have made his selection from out of those nominated.This would have been a far better method of getting the best person appointed and a practical one.

The Executive power of the President, like in the American Constitution, could have been given entirely to the President where he decides on the best individuals to run the Executive. (as Ministers) The type of Ministries could have been decided by the Parliament and could have been fixed in terms of the Constitution itself.

The control of Public Finance could have continued to be with Parliament and the Executive while the Legislative functions could have been separated creating a more efficient form of Government which would be conducive for Good Governance rather than what has been created now.

The Legislature itself could have had two houses where the fashionable demand for "educated " individuals being in Parliament could have been met by reserving one house for individuals with certain educational qualifications along with certain ex- officio posts to represent different interests.

However, if one is adamant on continuing with the 19th Amendment as it is, then the only hope is that two individuals who would see eye to eye in respect of every act of governance would be appointed as the President and the Prime Minister in the future.

If this cannot be done, governance would be far worse than what it is now. Therefore ultimately, though the hidden aim may have been to prevent certain elements of the previous dispensation holding governmental office, or may be perhaps for defeating nepotism, the framers of the 19th Amendment quite unwittingly may have created a situation where only members of a very close family unit would be able to run this Country without violating the provisions of the 19th Amendment.

This is a sad indictment on the citizens of this Country for allowing a declared intention to be hijacked by the hidden intentions of a few who have unwittingly created a situation for the inevitable return of "family rule".