By Lakshman I. Keerthisinghe Courtesy Ceylon Today

Let us never forget that government is ourselves, and not an alien power over us. The ultimate rulers of our democracy are not a President, and senators, and congressmen and government officials, but the voters of this country.”

-Franklin D. Roosevelt –American statesman and former President.
President Maithripala Sirisena recently called for the abolition of both the 18th and 19th Amendments of the Constitution ‘in order to strengthen freedom, democracy and ensure good governance in the future’, he said when speaking at the 40th anniversary celebrations of the National Housing Development Authority, at the Bandaranaike Memorial International Conference Hall (BMICH) in Colombo. The present article analyses the effect of the 19th Amendment on the next presidency.

The next election for the selection of the next President is required to be held between 8 November and 8 December this year. Since, the incumbent President has recently stated that he might not be seeking re-election, Sri Lanka’s next President will assume that office as soon as the result of that election is declared by the Commissioner of Elections. Quite a number of hopeful candidates have already emerged. Any Sri Lankan citizen, who has attained the age of 35 years, who does not hold the citizenship of any other country, has not been twice elected to the office of President by the people, and is not disqualified from being elected to Parliament, is eligible to be a candidate, provided if such person is nominated by a recognised political party, or such person has been an elected member of Parliament, by any other political party or by an elector.

Some of the candidates have already begun announcing their policies and plans for the future of the country at well-attended meetings, in five-star hotels, while others have posted in social media, to achieve their objective. These policies and plans deal mostly with economic, social, national security, and other similar issues crucial to the governance of Sri Lanka. 

Even the text of a new Constitution has been suggested by one such candidate. However, it is to be noted that under the 19th Amendment, the process of replacing presidential government with parliamentary government could be realised only on the day that President Sirisena ceases to hold office.  On and after that date, it will be the policies and plans of the political party securing a majority in Parliament that will be implemented throughout the country.

Article 42 of the 19th Amendment to the Constitution states that the Cabinet of Ministers is charged with the direction and control of the Government. It is the Cabinet that is collectively responsible and answerable to Parliament. Under Article 45, only a Member of Parliament may be appointed a Minister. It was an unprecedented transitional provision in the 19th Amendment that enabled President Sirisena to initially assign to himself the Ministries of Defence, Mahaweli and Environment. 

That transitional provision ceases to operate when President Sirisena ceases to hold the office of President. The next President will not be entitled to assign to himself any Ministry or any subject or function of government; not even the subject of Defence.

Next President

The next President, under the 19th Amendment will be the Head of State, the Head of the Executive (that is, the Government), and the Commander-in-Chief of the Armed Forces. That is also the role played by then President William Gopallawa, under the 1972 Constitution. It may be recalled that even under the 1946 Constitution, executive power was vested in the Governor-General. The Governors General, including Sir Henry Monck-Mason Moore, Lord Soulbury and Sir Oliver Goonetilleke, were weekly informed of the Cabinet decisions by the Prime Minister. 

The only recorded instance of a Governor-General attending a Cabinet meeting is of Sir Oliver during the 1958 Emergency. The next President will continue to be the Head of the Cabinet of Ministers.” This probably means that the next President too may chair meetings of the Cabinet, as the Speaker does meetings of Parliament. Such President may offer his opinion on Cabinet Memoranda and even initiate a discussion on a subject that such President considers to be important. What such President will be unable to do is seek to implement his decision in respect of a particular subject, as President Sirisena wanted to reduce the powers of the Executive President found in the Constitution, the 19th Amendment has removed many such powers, including legal immunity enjoyed by the President.

In conclusion, the next President appointed under the 19th Amendment will be of a purely ceremonial nature. It may be better, if as President Sirisena has suggested to repeal both 18th and 19th Amendments, and to introduce a new Amendment which enables a national-minded person to be appointed as next President, with appropriate powers to be used in the advancement of the country.

About the writer:

The writer is an Attorney-at-Law with LLB, LLM, MPhil (Colombo)

Email: keerthisinghel@yahoo.co.uk