19A: Half a President and half a PM Four decades of constitutional folly and failure – 5
Posted on September 5th, 2019

By C. A. Chandraprema Courtesy The Island

(The previous article in this series of self-contained pieces on the Constitution was published on Friday the 30th of August.)

The 19th Amendment to the Constitution brought by the yahapalana government was much wider in scope than the 17th and 18th Amendments. The 19th Amendment reinstated the Constitutional Council which had been abolished by the 18th A, but with the difference that instead of three Parliamentarians and seven outsiders as under the 17th Amendment, agitation by the opposition had managed to change the composition of the Constitutional Council to seven Parliamentarians and three outsiders. The three outsiders would be appointed by the President, on the nomination of both the Prime Minister and the Leader of the Opposition.

Other than this change in the composition of the CC, its functioning was supposed to be on the same lines as the 17th Amendment. Apart from reinstating the Constitutional Council, the 19th Amendment tried to achieve many other things as well. The most radical reform in the original 19th Amendment Bill was the provision to abolish the executive presidency. However, the way they went about it, doomed the exercise to failure from the start. The 19th Amendment Bill on the one hand provided to have a President directly elected by the people and styled Head of State, the Head of the Executive, Head of the Government and Commander in Chief of the Armed Forces and on the other hand tried to make provision for a Prime Minister who would be the head of the Cabinet of Ministers in a situation where the Cabinet was charged, with the direction and control of the Government. The Prime Minister was to determine the number of Ministers and the assignment of subjects and functions to such Ministers.

Thus the attempt was to make the PM the effective head of government while there was a President directly elected by the people who was charged with the exercise of the executive power of the people. Needless to say, the Supreme Court held that a referendum will be needed to make such a radical change to the Constitution. Since President Maithripala Sirisena resolutely opposed the holding of a referendum, the attempt to abolish the executive presidency failed. What the 19th Amendment managed to do was to clip the wings of the Presidency. By reintroducing the Constitutional Council, the powers of the President in making appointments to important state positions was restricted after the fashion of the 17th Amendment. Then the provision prohibiting a person from being elected President on more than two occasions was reintroduced.

Furthermore, it was made possible to challenge an executive action taken by the President by way of a fundamental rights application. This provision was put to the test last October when the President dissolved Parliament and the resulting judgment has taken even more power out of the hands of the President. Another great truncation of the President’s power took place when Article 70 of the Constitution was amended so as to make it impossible for Parliament to be dissolved before the lapse of four and a half years unless Parliament resolves to dissolve itself with a two thirds majority of the whole number in Parliament.

Most importantly, the provision in the Constitution whereby the President could assign to himself any subject or function and was to remain in charge of any subject or function not assigned to any Minister, has been repealed. What this means is that a future President will not be able to assign any subjects to himself or even remain in charge of the subjects not assigned to any other Minister because the provision that made it possible for the President to hold some subjects by default now no longer exists in the Constitution.

The repeal of the provision that enabled the President to assign any subjects to himself or to hold the subjects not assigned to anybody, has reduced the power of the President drastically. The incumbent President Maithripala Sirisena holds several ministries including that of defence only because of a transitional provision in the 19th Amendment which states that the person holding office as President at the time the 19th Amendment is passed, and so long as he holds office, may assign to himself the subjects and functions of Defence, Mahaweli Development and Environment and determine the Ministries to be in his charge for that purpose. The next president will not have any power to assign Ministries and subjects to himself – not even the Defence ministry.

On the other hand, the Prime Minister’s role has not been properly defined. He is the PM and sits in the Cabinet, but he is not the head of the Cabinet. He is not the head of the government either – both those titles still belong to the President. According to Article 43 of the Constitution as amended by the Constitution, it is the President who will determine the number of ministries and the subjects and institutions that are to be assigned to those ministries. He may only if he deems it necessary, consult the Prime Minister in doing so. However when appointing individual MPs to hold these ministries, the President is mandatorily required to consult the Prime Minister. After the Cabinet is formed in this manner, the President may at any time change the assignment of subjects and functions and the composition of the Cabinet.

Dysfunctional dyarchy

Article 43 is silent on the question whether the President is required to consult the PM when he changes the assignment of subjects and functions and the composition of a Cabinet that has already been formed. However the wording of Article 43(2) seems to suggest that in appointing MPs to be Ministers, the President cannot avoid consulting the Prime Minister whether it be before the Cabinet is appointed or afterwards. So the PM has a tenuous hold on power through Article 43(2) which makes him the effective appointing authority of Ministers. Yet the PM is not the head of the Cabinet or the head of the government.

So what we have now after the 19th Amendment is half a proper President, half a proper Prime Minister, and a Parliament that cannot be dissolved for four and a half years under any circumstances, unless Parliament resolves to dissolve itself with a two thirds majority. Preventing the President from dissolving Parliament at will is one thing – we have to admit that President Chandrika Kumaratunga dissolved Parliament unfairly in 2004 – but there should be provision at least for the Prime minister and the Cabinet to be able to recommend dissolution of Parliament. At the bare minimum, it should be possible for Parliament to dissolve itself by a resolution passed by a simple majority. But the 19th Amendment has saddled us with a Parliament that cannot be dissolved even if multiple no-confidence motions are passed against the government and the government repeatedly loses the vote on the budget.

This in itself shows how ill thought out the 19th Amendment is. The idea was to prevent the President from arbitrarily dissolving Parliament, but they have ended up making it virtually impossible for the Parliamentary government or even Parliament to recommend dissolution of itself. We are sitting on a ticking Constitutional time bomb. So long as there is a Parliamentary government which has sufficient cohesion and a proper majority to rule, things will be all right. But if the Parliamentary government is faced with defections that deprives it of its Parliamentary majority , then the President will have to form a new government and to get budgets passed by that government. In 2001, when Chandrika Kumaratunga realized that she no longer had a majority in Parliament due to defections, she dissolved Parliament and called a Parliamentary election without waiting to be defeated at the budget vote.

A future President will not be able to do that. Whatever happens in Parliament, it is the President who will be charged with the duty of somehow carrying on a government till it’s possible to dissolve Parliament and hold fresh elections. How is any President to do that? In 2001, CBK had four years of her tenure left, Parliament had five years left, yet MPs were abandoning her by the droves and nothing would motivate them to stay because they were thinking of the future, not the present. This kind of situation can arise particularly during a President’s second term. There are no provisions in the Constitution for the President to be able to compulsorily ‘draft’ MPs to serve as Ministers even against their will.

After the experience of the SLFP members who served in President Sirisena’s Cabinet, it is unlikely that any MP would want to jeopardise his entire future in politics for a few years in office unless he is willing to bow out of politics at the end of it. At present the signs are that the voting public will make examples of the SLFP ministers who served in President Sirisena’s Cabinet. So how is the President to run a government if the MPs in Parliament are not willing to serve under him for love or money as we saw happening very early on during CBK’s second term in office? The 19th Amendment may not have abolished the executive presidency, but they have heaped an impossible task on the shoulders of whoever holds that position. Perhaps the idea was to inflict such stress and torture on the holder of that office that nobody would want to be President and the position would stand abolished by default!

All told, the 19th Amendment is the mother of all Constitutional debacles which has saddled this country with a dysfunctional dyarchy made up of half a President and half a Prime Minister with the duo expected to somehow hobble along together in running the country.

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