THE PROBLEMS WITH THE 19TH AMENDMENT, PART TWO:  SEPARATION OF POWERS
Posted on March 12th, 2015

Dharshan Weerasekera

This essay is the second of what is turning out to be a series of essays on the problems with the proposed 19th Amendment to the Constitution.  In this essay, I focus on the important topic of Separation of Powers,” and what the proposed amendment does or does not do to it.  Simply put, the proposed amendment destroys what little of separation of powers exists under the present Constitution.

In the discussion that follows, I shall first explain what Separation of Powers” is, and why it is important, then briefly explain the separation of powers that exists at present under the Constitution, and finally explain the arrangement that would ensue if the 19th Amendment is adopted.

The United States Constitution is generally considered the best exemplar of separation of powers doctrine. [1]  I’ll start with two quotes from the Father” of the U.S. Constitution, James Madison, and then interpret those in order to extract what separation of powers is, and why it is important.

The first quote is quite famous, and gives the rationale for separation of powers:  The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”[2]

The second quote eloquently summarizes how separation of powers is supposed to work, and is as follows:

Ambition must be made to counteract ambition.  The interest of man must be connected to the constitutional rights of the place.  It may be a reflection on human nature that such devices should be necessary to control the abuses of government.  But what is government itself but the greatest of all reflections on human nature?  If men were angels, no government would be necessary.  If angels were to govern men, neither external nor internal controls on government would be necessary.  In framing a government which is to be administered by men over men, the great difficulty lies in this:  you must first enable the government to control the governed; and in the next place oblige it to control itself.  A dependence on the people is, no doubt, the primary control on government; but experience has shown mankind the necessity of auxiliary precautions.”[3]

From the first quote, one can extract the essence of separation of powers.  Basically, the doctrine says that the three branches of government must be handled by different people.  Of course, the branches are not completely separated from each other, because in that case no government would be possible.  But the basic idea is that each branch will act as a check on the others if they tried to abuse their powers.

From the second quote, one can extract the general importance of separation of powers to a government.  I shall summarize it as follows:  What most people expect from government is good governance, which is to say, they want government conducted according to the rule of law, and not according to the whim, sentiment, or interest of the political leader or group of political leaders who happen to be in power at any given time.

If the political leaders at any given time are angels”—or, if I may use a term with a bit more local flavor, bodhisattvas—which is to say, their personal morality, sense of decency and decorum are sufficient to prevent them from abusing their powers, that is well and good.  But, what if they turn out not to be bodhisattvas?  In that event, the people are at the complete mercy of those political leaders until the next election.

If political leaders turn out to be villains after they are elected, separation of powers is an auxiliary precaution” that can keep them from abusing their powers.  To put it another way, separation of powers is a safety-net for the people, to keep their political leaders in check between elections.  That then is the general importance of separation of powers.

In shall now turn to the separation of powers that exists under our Constitution at present.  In my view, the present Sri Lanka Constitution has a very weak separation of powers, for the following reasons.

First, judicial power is made entirely subservient to the legislature.  This is done in two ways.  First, Article 4(c), which establishes the judicial power, says, The judicial power of the people shall be exercised by Parliament through courts, tribunals and other institutions created and established, or recognized, by the Constitution.”

If the judicial power of the People is to be exercised by Parliament through the courts, it means the judicial power in question reposes originally in Parliament, and the courts are merely the Parliament’s instruments in exercising that power.

Theoretically, it would be possible for Parliament, by asserting its prerogative under Article 4(c), to ignore a ruling or decree of the Supreme Court, or to order the Supreme Court, or any other court, to stop any proceedings with respect to any particular matter, and the courts would have no choice but to obey.

(In fact, the above is exactly what happened during the impeachment of former Chief Justice Shirani Bandaranayake, when the Speaker informed the Appeals Court, which had taken up a petition challenging the impeachment, that the court had no business entertaining such a petition.[4]  Of course, for practical reasons, Parliament would not make a habit of asserting its prerogative under Article 4(c) in this fashion, because that would lead to complete anarchy, but I believe the capacity to do it remains.)

Second, Article 80(3) of the Constitution imposes a complete ban on the Supreme Court from reviewing a law after such law is passed.  Article 80(3) says, inter alia, Where a Bill becomes law upon the certificate of the President or the Speaker…no court or tribunal shall inquire into, pronounce upon, or in any manner call in question the validity of such act on any ground whatsoever.”

If the judiciary is to be an effective check on the legislature (which is one of the requisites of a separation of powers system) then obviously the judiciary must have the capacity to review laws after they are enacted.  Thus, Article 80(3) effectively bars the Supreme Court from playing a meaningful role as a check” on the legislature.

The other major weakness in the separation of powers under the present Constitution is what is generally recognized, namely, the balance of power between the executive branch and the legislative branch is tilted decidedly in favor of the executive.  This is the aspect of the Constitution that has been the most troubling to the lot of people, and in fact has led to legitimate demands for ‘reform,’ the 19th Amendment being the obvious result.

I’ll now turn to the separation of powers that would ensue if the 19th Amendment were to be adopted.  In my view, what the 19th Amendment does is, under the pretext of pruning” the Executive powers, it shifts all of those powers to the Prime Minister, who is a member of the legislature.  The result is a monstrously powerful legislature, with absolutely no check on it, either from the judiciary or the executive.

To turn to the Constitution as it stands, it is true that the executive is more powerful than the legislature, but, the legislature nevertheless has substantive powers capable of checking the executive.  I’ll just mention two of those powers:  first, the legislature can effectively thwart the executive by defeating inter alia the budget (Article 49(2); and second, the legislature can impeach the President and remove him from office.

Let’s now turn to the changes that the 19th Amendment will make to the executive.  The relevant changes are those proposed in Articles 33A(2) and (3) and are as follows:

33A(2):  The President shall always, except in the case of the appointment of the Prime Minister or as otherwise required by the Constitution, act on the advice of the Prime Minister or such Minister as has been authorized by the Prime Minister to advise the President with regard to any function assigned to that Minister.

33A(3):  The President may require the Prime Minister or Minister giving advice to him or her under subsection (2) to reconsider such advice, but the President shall act on the advice given to him or her, after such reconsideration.”

How do these changes affect the legislature’s capacity to thwart the executive, either by frustrating the budget, or, under the right circumstances, by impeaching the President?  I’ll take each in turn.

First, Article 33A(2) clearly says that, except in the appointment of the Prime Minster, the President shall always (that is a mandatory requirement that covers all of the President’s actions other than the aforesaid appointment of the PM) act on the advise of the Prime Minster, which means it is the Prime Minister who will actually wield the executive power.

The sole qualification to be the Prime Minister, meanwhile, as set out in the Constitution, is that the individual in question must be a member of Parliament, and, at the time the President appoints him Prime Minster, he must (in the President’s opinion) be the person most likely to command the confidence of Parliament.” (Article 43(3))

If the Prime Minister is the person most likely to command the confidence of Parliament” then obviously he is a person capable of getting the majority in Parliament to support his proposals, or reciprocally, his proposals already reflect the consensus of the majority in Parliament.  In the circumstances, any budget the Prime Minister submits to Parliament—or, to be more precise, hands out to the President and advises him to submit to Parliament—will be approved.

Meanwhile, if the Prime Minister cobbles together a unity government,” which means even the semblance of a principled Opposition in Parliament is removed, there is absolutely no question any budget submitted by the Prime Minster will be automatically approved.   So, there goes the legislature’s ability to thwart the executive by frustrating the budget.

I’ll turn now to impeachment.  It should be noted that, Article 33A(2), which effectively transfers all executive power to the Prime Minister, is silent on how the Prime Minister can be removed, if such a thing were to become necessary.

Article 47 of the present Constitution sets out three clear ways that the Prime Minister, or for that matter any Cabinet Minister, can be removed:  one, by writing under the hand of the President; two, by the Prime Minister (or Cabinet Minister) resigning of their own accord; and three, by the Prime Minister (or Cabinet Minister) ceasing to be a Member of Parliament.  Note that, as per the first of the above methods, the President, at his pleasure, can remove the Prime Minister, or any other Cabinet Minister.

To return to the proposed Article 33A(2), it clearly says that, except for the appointment of the Prime Minister, the President shall always follow the advise of Prime Minister in all his (the President’s) actions.  This would obviously include the removal of the Prime Minster, or any Cabinet Minister.  What does this mean?  It means only one thing, the Prime Minister, along with members of the Cabinet, who will be running the Government, cannot be removed, no matter what they do, for the duration of Parliament.

To summarize, then, under the proposed 19th Amendment, the executive power is absorbed into the legislature.  Meanwhile, an executive branch is created, more or less within the legislature itself, comprising of members of the legislature, who cannot be impeached on any ground whatsoever, and who have a free hand to run the government in any way they want, for the duration of Parliament.

In the circumstances, the only safeguard for the people is the expectation, and perhaps the hope, that the persons elected to the legislature are bodhisattvas—that is to say, their personal morality, sense of decency and decorum are sufficient to prevent them from doing wrong.  If the elected leaders turn out not to be bodhisattvas, but villains, the people are well and truly finished, at least until the next election.

To put the above system in a nutshell, it takes the executive with near-dictatorial powers provided for in the present Constitution, and creates an office of a Prime Minister (and a Cabinet) with absolute powers.  It is difficult to imagine that any reasonable person would consider that the aforesaid arrangement can be salutary to the republic.  As is well known, Power corrupts, and absolute power corrupts absolutely.”  Hence, for this reason also, the proposed amendment must be rejected.

Dharshan Weerasekera is an Attorney-at-Law.  He is the author of, The UN’s Relentless Pursuit of Sri Lanka, and the need for effective counter-measures (Stamford Lake, 2013)    

[1] Someone might say, What do we have to learn from the U.S Constitution?  The Americans have by now made a mockery of their Constitution, or any semblance of the rule of law, by suspending nothing less than the writ of habeas corpus, and also by allowing the executive to accumulate so much power that he can order the extra-judicial killing of U.S citizens, if he decides, in his discretion, that such citizen poses a threat to the national security of the country?”  My only reply is, with sufficient effort, (and perhaps enough lawyers!) it is possible to subvert almost any doctrine, no matter how pristine in may be in its original form.  What the Americans have done to their Constitution over the years is their problem.  I am interested only in certain principles in the American Constitution, consistent with reason and common-sense, that may be useful to us.  It should be noted that, if indeed the Americans have succeeded in destroying their Constitution, it has taken them two-hundred years to do it.  Meanwhile, that Constitution has helped them become the most powerful country in the world, perhaps in all history.  What have our Constitutions done for us?  The present Constitution has led us, or at least presided over, a thirty-year civil war.  And now, with the 19th Amendment, it’s on the verge of setting in motion the irrevocable process that would lead to the division of the State and the creation of an Eelam in the North and East of the country.  If there’s any principle in the American Constitution, or any Constitution, that can help us frustrate the dreams of the Eelamists for two-hundred years, I for one am willing to embrace it.

[2] James Madison, Alexander Hamilton and John Jay, The Federalist Papers, (ed) Isaac Kramnick, Penguin, London, 1987, p. 303

[3] Ibid, p. 319

[4] The Speaker’s argument was repeated more or less in the same form by the Attorney General at the Supreme Court, when the appeal on the Court of Appeal’s ruling against the Parliamentary Select Committee overseeing the impeachment, was taken up. The Supreme Court accepted the AG’s argument.  See, SC Appeal No. 67/2013 (decided on 21/2/2014) pp. 17-18

12 Responses to “THE PROBLEMS WITH THE 19TH AMENDMENT, PART TWO:  SEPARATION OF POWERS”

  1. Mr. Bernard Wijeyasingha Says:

    “The United States Constitution is generally considered the best exemplar of separation of powers doctrine.”

    NOT ANYMORE!!!

    Things change. they always change.

    President Obama has gutted the separation of powers by Executive order. He has used this office well beyond the stipulation for that office.

    Right now the Supreme Court is ruling on Obama care… again. If the Supreme court upholds it, then the Congress is rendered null and void. It will be based on the first ruling. the 1st ruling was that Obama care did not violate any constitutional issues based on taxes. the IRS won. the IRS is a bureaucracy. If the Supreme court upholds Obama care again then the government Bureaus (IRS, Department of Labor, EPA, Department of Commerce, etc) make the rules that govern the nation.

    they effectively bypass the Congress.

    the Executive office is also the:
    -Commander in chief of the military
    -Has the sole power to appoint lifetime Judges to the Supreme court

    With Obama blatantly violating his office AND the Congress not charging him or laying the groundwork for impeachment both the President and the government Bureaus run the United States.

    Now the US is the WORST example of a functioning Democracy, and I do not agree with this article at all.

    I want to bring up the issue of the possibility of Rajapakse returning to power.
    If he runs again due to the weakness of Sirisena’s coalition then Rajapakse sets the terms.
    Only if the Buddhist Sanga uses this time to play a greater role, risk the wrath of the current government and by that become what they should be will the next candidate take the Sanga seriously. otherwise as in this article the government will be weakened by effectively separating powers till the powers are too weak to work.

    If a Buddhist Theocracy were to ever happen the power has to be concentrated with the Sanga and the government in Colombo. Concentration of power in the hands of these entities will remove it from those who currently hold it especially the Tamils, Muslims, Christians and Secularists.

  2. Mr. Bernard Wijeyasingha Says:

    Other aspects that have gutted the separation of powers in the US

    – the Patriot act (generally it is outside the “due process”)
    – Homeland Security (guts the 4th amendment and the 5th amendment)
    -National Security Agency (NSA) makes a mockery of the US constitution and the liberties it guarantees to the people.

  3. Fran Diaz Says:

    We thank Dharshan for taking the time and trouble to enlighten us further about the 19-A.

    ———

    The Constitution of the United States of America is a beautiful document. The high aspirations therein takes the breath away !
    However, the other settings within the country can sometimes try the system to its limits e.g. capitalist system. Three Great Presidents of America have mitigated some of the great difficulties the people of America face due to aging, illness and poverty etc. The major life supportive systems they have put in place are the Social Security Act, the Medicare Act and Medicaid Act. However, as some folk ‘fell between the cracks’ in these systems already in place, President Obama brought in the Affordable Care Act, known to some as Obama Care Act. Over 8 Million people have already benefitted from this Act. It is a great and life supportive Act. The numbers re expected to reach 11 M this year. So it is a blessing to many in America.

    President Obama has used his veto pen only thrice ! Almost a record for an American President. That means he has allowed the other parts of government to function without his veto for 7 yrs and that is good governance on his part, don’t you
    think ? As Presidential elections will happen in America next year, the media can get very critical of the present presidency – one has to take it all with a pinch of salt. It may be fair to say that over 90% of the media is privately owned in America.

    ——–

    Sri Lanka has a socialist system in place. This is a very valuable system. Europe had two World Wars before espousing socialist systems for their states. Lanka must strive to keep to the socialist system. Adding illegal migrants to Lankas numbers will put immense pressure on the socialist system we have. So keep out illegal migrants, please.

    We do not think that passing the major bulk of responsibility to an Exec PM will work. The President will have to retain some of the important portfolios.
    We agree with Opposition Leader, Mr Nimal Siripala de Silva that the changes to the electoral system must not be done in haste.

  4. nilwala Says:

    Thank you Dharshan for clearly explaining how the Constitution of the United States recognized the difficulties involved in the protection of the people from the power of the Government, and the need to keep the 3 branches of Government sufficiently insulated from each other, yet act together. It is indeed a remarkable document that reflects the sense of responsibility exercised by the Founding Fathers of the new nation. That said, the increasing influence and power of the military industrial state in the post-WWII trajectory as leader or the Free World has led to an increasing deterioration of the moral elements that held the nation committed at the outset, and a pursuit of military and financial power that has been unleashed at times to the detriment of the respect and esteem that the US was held by the world.
    September 2001 and the 9/11 events brought a situation of permanent war. The Bush govt was responsible for the strategic positioning of events that left in their wake the Homeland Security Act and the National Security Agency that have served to undermine much of the good that America offered to the world at large as a beacon of hope.
    Today’s post-9/11 world has transformed the world just as it has transformed the United States and how the genie can be put back in the bottle is without solution in sight. The 3 pillars of govenment have ceased to prop each other up and each is weakened as Bernard Wijeysinghe and Fran Diaz also explain.
    Tinkering with an existing Constitution cannot be done piecemeal without endangering the entire foundation. The changes proposed by the 19th Amendment will take Sri Lanka into an experimentation during a highly unstable world as well as the local political situation, and it may be better to remain with the current Constitution within which the country had sustained itself without disintegration during the worst of times, i.e., during the Eelam Wars.

  5. Fran Diaz Says:

    I totally agree with Nilwala on : “Tinkering with an existing Constitution cannot be done piecemeal without endangering the entire foundation”.

    I would like to add that President Obama is a Professor of Constitutional Studies. He does not err in his judgement on internal and external situations and acts according to the Constitution.

    BW,

    I do not think it is wise to mix religion (any religion) and state. History, European history in particular, has proved this point in those countries. Kindness and decency are generally inborn traits in human beings. These are traits that make a person feel good. These traits raise self esteem and self worth. Religion merely affirms it. Let our true nature prevail in a natural way. Parents and school teachers ought to encourage such traits in children. They are the future politicians of Lanka. Systems of government can encourage or discourage such life supportive traits.

  6. Mr. Bernard Wijeyasingha Says:

    Fran Diaz: When you write “The Constitution of the United States of America is a beautiful document. The high aspirations therein takes the breath away !”

    It is but it was written when the United States was just 13 colonies, 13 independent entities with their own governments.

    Since then and due to structural changes from the Civil war, to the expansion of the United States to include 48 states in the continent, Alaska and Hawaii, that Constitution written a few years after 1776 has less relevance today than it did when it was written.

  7. Fran Diaz Says:

    BW,

    Thank you for response.

    Larger area or smaller area, the document still remains a wonderful piece of work. We must admit that much. Aspiring to it may prove to be difficult at the stage of evolution mankind is still in. But aspire to such we must. Aspiring to Nirvana, Moksha or Heaven within is also difficult, but a fantastic aspiration for all times.

  8. Mr. Bernard Wijeyasingha Says:

    Fran Diaz

    I agree. I have a belief I would like to share with you. The aspiration for the Divine is as important as the concept of it.
    I will keep it short.
    Ancient Egypt strived for the divine for 4 thousand years. In the process of that they built eternal monuments such as the Pyramids. gave birth to many fields of technology (papyrus or the first writing paper, mathematics, architecture that influenced the Greeks and Romans, vast works of art and architecture such as the Temple of Karnak yet 2 thousand years later the statues of their Gods are now museum pieces and from the Ziggurat to the Pyramid their monuments remain the symbol of our most ancient heritage. This was all due to their pursuit of the Divine. Today no one honors their Gods and their civilization is dead but what a marvelous heritage they left behind.

    Then there is the concept of

    Believing in the possibility of the impossible. When we do then only both the Divine and theoretical Science make sense. It is in the act of believing in the possibility of the impossible that man has broken free from earth’s confines and reached to other worlds. It is the basis of our most profound philosophies and Scientific theories. Then the journey is as important as the goal.

  9. Fran Diaz Says:

    BW,

    I agree with you that all Image Worship falls short of Self Knowledge, Self Realisaiton, Truth. God Realisation, etc. Image Worship has its place in the human psyche in that it brings some focus, when the Image presented has deep and real meaning. Generally, mankind seeks solace to take away the pain of life itself (transitory), old age, illness and death. So there are all kinds of rituals and image worship etc.

    There has to be some Creative Force in the Universe that sets up all that we can experience through our 5 Senses. Some of us have a well developed 6th Sense too. We can call it Intution. Now, who or what sets up all this ? We can call that Force/Energy, though unseen and in another dimension, God/Truth/Allah. It is that believing and aspiring that makes

  10. Fran Diaz Says:

    contd.

    I think that it is the believing and aspiring to know that God/Truth/Allah that makes life worthwhile.

    Science is coming to that point of at least knowing and acknowledging That which we cannot measure and control ?

    I agree with you that the Journey is as important as the Goal.

  11. Fran Diaz Says:

    Darshan,, my apologies for digressing away from the main topic at hand. However, we have to look at God/Truth Law as well as Man Made Law.

    ——-

    BW,

    A couple of more points :

    The God/Truth Laws do not alter with whims and fancies of a humanoid mind. Those Laws are immutable. On the other hand, Man made Laws are not at all perfect – they are bent with the whims and fancies of the people in power and the times. That is why the 19-A must be examined thoroughly and debated in Parliament before it is passed, if passed at all.

    Somewhere in Europe, scientists are trying hard to find the God Particle !! Will the ever ! Look what was done with Einstein’s discovery E=MC (2) – at that time, Einstein himself was reluctant to proceed with his famous discovery as he felt that it would be misused. It was done to help stop WW II, but look where the atomic bomb was tested : In far off Japan, away from Europe where the war raged !

  12. Fran Diaz Says:

    read as : will they ever !

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