THE PROBLEMS WITH THE PROPOSED 19TH AMENDMENT TO THE CONSTITUTION
Posted on March 12th, 2015

Dharshan Weerasekera

There are huge problems with the proposed 19th Amendment to the Constitution.  In this article I’ll focus on just the first and foremost of those, which has to do with the proposed changes to the Executive.  (I am using the version of the proposed amendment published in Colombo Telegraph: www.colombotelegraph.com/wp-content/uploads/2015/04/Exclusive-19th-Amendment-draft-.pdf.)

Article 2 of the proposed Amendment (to replace Article 4(b) of the Constitution) says:

(b):  The executive power of the people, including the defence of Sri Lanka, shall be exercised, in the manner hereinafter provided, by the President of the Republic elected by the People.”

Article 7(2) of the proposed Amendment (to be inserted as Article 33A of the Constitution) says, inter alia:

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.”

Since Article 2(b) above says that the executive power of the People is to be exercised by the President, and the President is to be elected by the People, it means the person elected as the President is the person delegated by the People to exercise the said executive powers.   Articles 33A(2) and (3), however, indicate that it is the Prime Minister who will actually exercise the executive power of the People.

To expand on the above a bit further:  If, out of a number of candidates, the People elect X to perform function Q, it is presumably because the People consider that X, and not anyone else, is qualified and capable of performing Q.  Why would the People elect X to perform Q if they wanted, say, Y to do the job?  If they wanted Y for the job, they could elect Y directly, or, reciprocally, if Y felt he was qualified and capable for the job, he could go before the people himself and get the necessary mandate.

To return, there is a fundamental legal maxim that says, Delegatus non potest delegare” (A delegated power cannot be delegated).  What Article 7(2) of the proposed 19th Amendment does is precisely to delegate a delegated power, in this case to the Prime Minister.

Certainly, a Constitution can require a President to listen to the advice of the Legislature, or any other designated body.  If we take the United States Constitution, for instance, it says that, when it comes to the appointment inter alia of Supreme Court judges, the President shall make such appointments subject to the advice and consent” of the Senate (Article 2, Section 1).

(In fact, there has been an ongoing debate in the United States whether the Senate, as per the aforesaid advice and consent” clause, can irrevocably prevent the President from appointing a particular person of the President’s choice to the Supreme Court if the President is adamant about appointing that person and no one else.  But this matter is not directly pertinent to the present discussion.)

The point is that the word advice” entails that the person being asked to take advice has the option of either accepting or rejecting the advice in question.  If he does not have such a choice, then he is not being asked to take advice, but being asked to take orders” or directions.”

What the writers of the proposed 19th Amendment have done is to impose a mandatory requirement on the President (the word shall” is used in the relevant clause) to always follow the advice” of the Prime Minister, in all his (the President’s) actions.  Clearly, as per the provisions of Articles 33A(2) and (3), the President has no choice as to whether to accept the advice given to him.

Article 33A(2) says the President can ask that the advice be reconsidered,” but after it is reconsidered, the President still has to follow it.  So, the fact that the President has no choice but to accept the advice of the Prime Minister or his designated deputy is in no way changed.

Therefore, Article 33A(2) should actually read:  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 orders and directions of the Prime Minister.”  It would be a more accurate description of the relationship that the proposed 19th Amendment is trying to set up between the President and the Prime Minister.

In short, as per the provisions of Articles 33A(2) and (3), the proposed 19th Amendment makes the President a sort of servant of the Prime Minister or the latter’s designated deputy.  As I have pointed out earlier, however, it is the President who is elected directly by the People to exercise the People’s executive power.  If the Constitution makes the President a servant of the Prime Minster, what does that do to the People’s ability to exercise their executive power?

Clearly, the 19th Amendment as it stands violates the legal maxim:  ‘delegatus non potest delegare,” which means it is legally unsound.  If the impugned provisions are not changed or adjusted to resolve this problem, the 19th Amendment would have to be rejected in limne, just on those grounds.

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)  

9 Responses to “THE PROBLEMS WITH THE PROPOSED 19TH AMENDMENT TO THE CONSTITUTION”

  1. Lorenzo Says:

    How about the 18th amendment?

    My3 in London.

  2. Ancient Sinhalaya Says:

    UNpatriotic Party gave all these troubles.
    They didn’t built motorways.
    They didn’t win the war.
    They gave us 13, 13A, CFA, PTOM etc. etc.
    Murder the Sinhalese youth without mercy and such brutality.
    (Remember alugosu premadasa and alugosu jr).
    Corruption was endemic. But nobody cared because it was UNpatriotic Party.

    UNpatriotic Party (UNP) is run by catholics and mussies.
    They align the country with UK, US, France, Germany, Norway etc. etc.
    All catholic countries. They lick their backs and danced to their tunes.

    So everything UNpatriotic Party does is
    Anti Sinhalese
    Anti Buddhists
    Anti Sri Lanka.
    Still some Sinhalese idiots think it is fashionable to support these traitors.
    Another 50 years of this UNpatriotic treacherous party
    Sinhalese
    Buddhism
    and Sri Lanka going to be destroyed.
    What more damage this UNpatriotc Party have to do before these Sinhalese
    idiots understand the truth?

  3. Dilrook Says:

    SLFP must bring its own motion to totally abolish the executive presidency. Today the executive presidency is actually a threat to national security, not a safeguard. It must be totally abolished empowering the parliament. It will be easy to get the 150 votes required. The president and the UNP will be prevented from opposing it as most people want the executive presidency removed.

    Abolishing it will also put the SLFP leadership into contest where Mahinda has a better chance to win. At the moment, the country’s president, if from the SLFP, automatically becomes to SLFP leader. A very shortsighted provision added by Mahinda in 2006.

    Without the executive presidency, minorities will no longer be seen as kingmakers.

    This is the only way forward for the Mahinda alliance.

  4. Mr. Bernard Wijeyasingha Says:

    It is time to question the Sri Lankan Constitution as a whole since the end of this war. It is time that the Constitution be amended to include a central role for the Buddhist Sanga. If that is done it will guarantee that Buddhism will be protected above all other faiths by the constitution.

  5. Sirih Says:

    We need the presidency with defence powers and he/she should be answerable to the parliament.
    Presidency powers should be reduced in terms of governance and civil law and order area.
    At the moment Ranil want president as a puppet since he cannot win via direct election.

  6. nilwala Says:

    DharshanW brings up a very important issue of the ‘power play’ relationship between PM, Parliament and the President. President Sirisena promised in his Manifesto to do away with the Executive Presidency and the election was fought on that issue as a primary bone of contention in which people decided to vote for My3 or MR.
    Those voters who were still concerned about national security and the stability of the state as being the most salient issue in the continued existence of the unitary state of Sri Lanka, voted for MR in recognizing that conditions were as yet not secure for removal of the Executive Presidency, and that he had the demonstrated commitment, strength and vision to keep this focus.
    Nugegoda and Kandy rallies have demonstrated this concern as being alive and well
    Those who felt that everything wrong with the Constitution was due to the excessive powers of the Executive Presidency as promulgated by My3, CBK and the UNP (although it was this last group that had actually brought it into being), voted for My3 and he won with the en-bloc votes of the Minorities.

    Now we have a new Nineteenth Amendment in which the Executive Presidency remains with the President still PURPORTEDLY holding Ministerial powers relating to Defense, but which are now subject/beholden to advice given by the PM whose power is Supreme.
    IF THIS IS NOT A COVER TO PRETEND TO A CONTINUING PRESIDENCY, BUT WHICH IS ACTUALLY A DUMMY PRESIDENCY, WHAT IS?? IS PRESIDENT SIRISENA READY TO BE IN REALITY, THE DEPUTY PREMIER?
    DID THE PEOPLE VOTE FOR THIS TOMFOOLERY? THE PUBLIC IS BEING TAKEN FOR ANOTHER RIDE!!

    SLFPers and others PLEASE NOTE, and do not let MY3/UNP/CBK/RW fool you!!!

  7. Fran Diaz Says:

    The 19-A is the next TRAP that has been set for Lankans.
    I agree with Nilwala who says that Lankans are going to have a dummy Presidency. Now, who will have that Princely PM job ?

    Brit General Elections are on the 7 of May, after Parliament of Lanka is dissolved in April. Neo-Colonisation is on the cards for unwary states, it seems.

  8. Ratanapala Says:

    Gay Boy Ranil who couldn’t get the Presidency through the ballet is now trying to get it by playing Suba saha Yasa natakaya. He seems to think that the Sri Lankan electorate are idiots to fall into his trap. SLFP should clearly reject this amendment in the format as envisaged above.

    Immediately after pickpocketing the premiership from the Walking Mummy he formed a cabinet made up of 90% Christians. Now he wants to go further and take what little is left with the Puppet President.

    Sri Lanka is at a very dangerous juncture in her history. If not checked our motherland will end up another Philippines!

  9. Mr. Bernard Wijeyasingha Says:

    After reading the comments it dawned on me another role that the Buddhist Sanga can easily be part of and that is to have a voice in the city council that monitor the construction of buildings, monuments, parks etc.

    In many nations including in many parts of the US buildings, monuments etc have to meet a standard of aesthetics, especially in historic towns. It is here that the Buddhist Sanga can play a pivotal role in approving or disapproving the construction of a building if the architecture is more of a eye sore, goes against the high standards of Singhalese Buddhist art and architecture and include issues which foster the Buddhist Singhalese culture in any city planning committee. Across many cities of Europe one cannot simply build anything they want. That is one sure way to maintain and increase the presence of the best aspects of classical Buddhist art throughout the nation.. It is also a way to slow the progress of alien religions from building their monuments to such a degree that their culture dominates the city.

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