The Guard Post 19A – Constitutional confusion!
Posted on August 19th, 2018

By Udaya P Gammanpila

What has the Government done so far? When we pose this question to the Ministers they are speechless. After being in a thinking mode for a while, they come out with a common answer. That is enacting the 19th Amendment . Hence, it is the ideal time to review the much-flaunted 19A when the Government celebrates its third anniversary.

President Sirisena’s biggest electoral promise was abolishing the Executive Presidency. His rival, Mahinda Rajapaksa promised to ‘reform’ the Executive Presidency. President Sirisena with his electoral victory received a mandate to abolish the Executive Presidency.

However, the 19A neither abolished nor ‘reformed’ the Executive Presidency. Instead, it created two power centres in the government by vesting certain powers of the President with the Prime Minister. Nobody promised such a situation! As a result, the President and Prime Minister are always at loggerhead in their attempt to dominate each other. This constitutional confusion is the main cause for the failure of the Government.

The 19A caused two fatal attacks on democracy. After 18A, there was no restriction for presidential terms. The people decided whether the President should continue in office or not. Any person can stick to his office as long as people want him to be there. The UNP claimed that no President in office cannot be defeated at a presidential election. As a result, there is a possibility of having a dictatorial lifetime President. Hence, the 19A grabbed that opportunity from the people and restricted the number of terms to two. However, the UNP’s argument proved wrong when the people defeated the President in office in 2015, at the very first presidential election after the 19A.

no legal bar

In this backdrop, the 19A has denied the right of choice to the people. Dr. Mahathir Mohamed had continuously been Prime Minister of Malaysia for 22 years when he retired in 2003. When the Malaysian people wanted him back in 2018, at the age of 92, there was no legal bar to elect him again as Prime Minister. Similarly, Sri Lankans are now desperately in need of electing former President Mahinda Rajapaksa back in power. Unfortunately, they have now been disappointed by the two-term restriction introduced by the 19A.

The worst impact of the 19A was witnessed by the nation after the Local Government election held in February 2018. The Prime Minister’s party secured victory at the Local Government polls throughout post-independence history. However, the present PM not only lost the election, but also was able to only obtain 30% of the votes. In other words, his government has been rejected by 70% of the nation. The world tradition is to resign as PM soon after such a humiliating electoral defeat.

Unfortunately, the PM opted to ignore the public’s rejection and to continue to be in office.

If the PM does not accept the people’s verdict, the President has the power to remove the PM and appoint another. However, the 19A had removed this power too, from the President. Further, the President’s power to dissolve Parliament has also been removed for four-and-a-half years.

Hence, the President is unable to take any action to remove the PM who refuses to accept the people’s verdict.

The 19A established a Constitutional Council (CC) to recommend persons for high posts such as members of the independent commissions, Superior Court Judges, IGP and the AG. The objective of setting up the CC is to ensure independence of the high posts from political interference.

Unfortunately, the CC has miserably failed in achieving this objective. The CC has so far failed to publish their selection criteria for these posts. In the absence of such criteria, it should have considered seniority as the basis for selection. If the senior most person is not suitable for the post because of his incapacity or on disciplinary grounds, it should be disclosed before appointing the next senior most person. The CC failed to recommend the senior most persons for the posts of AG and IGP. Further, it failed to disclose any reason for ignoring the senior most persons. Hence, it was obvious that political favouritism was rampant in these appointments.

political witch-hunt

The IGP publicly acknowledged that he ‘bent’ the law as he wished. The IGP and the AG actively involve in political witch-hunt of the governing party. The politically biased conduct of these two senior officers is unprecedented in Sri Lankan history.

The CC has no criteria to promote Judges. It has promoted junior High Court Judges to the Court of Appeal, repeatedly ignoring senior most Judges. This situation may compel Judges to form an opinion that they cannot expect promotions without joining the Government’s witch-hunt.

In the absence of objective criteria, the CC has the opportunity to appoint judges to superior courts from the AG’s Department and unofficial bar until the retirement of the disliked Judge.

Although there is a so-called independent Police Commission, the IGP refuses to implement its orders. Recently, the IGP refused to promote an SSP to the post of DIG although the Police Commission had order him to do so. The Commission could not do anything in response. Hence, it has now turned to be a dog without teeth that can bark but not bite.

Similarly, Secretaries harass government officers who refuse to follow illegal or unethical orders of politicians, although there is a so-called independent Public Service Commission.

In the light of the above, it can be concluded that the 19A is an utter failure although the Government praises it as being the most democratic constitutional amendment in history!

One Response to “The Guard Post 19A – Constitutional confusion!”

  1. Dilrook Says:

    Not true.

    Article 31(2) as amended clearly prevents Mahinda and Chandrika from contesting again. There is no need to specify it is applicable restrospectively or prospectively. Mahinda has been elected twice by the people and therefore cannot contest again. A similar situation arose in September 2014 when the question was raised that 18A may apply prospectively and therefore Mahinda was ineligible to contest the 2015 presidential election. The court decided against it. Same thing applies this time with a little difference.

    This bogus claim is an attempt to patch up splits in the JO/SLPP over the presidential candidate. They are already divided between Gotabaya, Basil, Chamal and Mahinda. But all of them agree on Mahinda. This is why a wrong claim is spread that Mahinda can contest so there will not be anymore splits in the JO/SLPP.

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