By Shivanthi Ranasinghe Courtesy Ceylon Today

It came up after the surprise change of Government on 26.10.2018 when Maithripala Sirisena tried to get rid of Ranil Wickremesinghe; it popped up again after the Easter Sunday Massacres.

  And here it is once again as we face a Presidential Election. It is none other than the 19th Amendment to the Constitution, which is perhaps the most controversial piece of legislation that Sri Lanka has ever passed.

Ironically it was brought to nullify the 18th Amendment, which threw away the bar on the term limits one may serve as the President of the country. 

The 18th Amendment was accused of allowing one person to stay in power indefinitely – even though presidential elections were to be held every six years.

 In that context, as was witnessed by the aforementioned incidents, the 19th Amendment can be said to allow someone to enjoy absolute power without responsibility.

The 19th Amendment is obviously a hasty and a shoddy cut and paste job. As a piece of legislation that was brought to prevent one person from clinging to power indefinitely, it ends up doing just that – disallowing one from getting terminated from position, even after events discredits that person’s capability. 

t was revealed in the aftermath of 26/10, when Ranil Wickremesinghe was unceremoniously chucked out of his job as Premier, that the Prime Minister can only be replaced if,
the sitting PM resigns
Or
the sitting PM ceases to be a Member of Parliament.
Therefore, even after Maithripala Sirisena as the President declared that he had lost all confidence in his PM and therefore can no longer work with him, the 19th Amendment saved Wickremesinghe his job.

 It took less than five months for the grave consequences to manifest itself for allowing a fractured government where the head and the deputy do not see eye-to-eye.

 Every single one of the tragedies of the Easter Sunday massacres could have been avoided had Sirisena been allowed to form a stable government where he could have worked with a new deputy. Thus, it was the 19th Amendment that effectively stopped Sirisena from forming a strong, stable government.

The investigations into the Easter Sunday massacres exposed the full extent of the 19th Amendment’s corrosiveness.

 Though this legislation reinstated Wickremesinghe back on the Prime Minister’s saddle, it did not ensure a harmonious relationship between the President and his Prime Minister. At the very least the 19th Amendment did not ensure that Wickremesinghe did his job well as Prime Minister.

Due to the strain between the President and the Prime Minister, the latter was not included in the National Security Council’s sessions for months. It is apparent that Wickremesinghe too enjoyed the “break” for he never took up the matter in Parliament.

The 19th Amendment takes great care in more than one way to safeguard the Premier’s job.

 Besides revoking the right of the President to terminate his Prime Minister, this legislation also ensures that Parliament cannot be dissolved until four and half years of a five-year term has been completed. This is indeed a most absurd stipulation.

 If a failed Government was allowed to exist up until the last six months of its term, then you might as well let that Government complete its full term.

The tragedy is that this legislation, that safeguards persons their positions, does not guarantee that those persons actually do their job.

 It has been revealed that from 2016 up until the 21 April terror attacks, the Sri Lankan authorities had been warned of Zahran Hashim and rising Muslim extremism 347 times.

 Of this figure, IGP Pujith Jayasundara had received 131 reports and the then Defence Secretary Hemasiri Fernando 94. 

Yet, neither the IGP nor the then Defence Secretary nor any other authority in the security establishment or at the very least the President of the country took any action regarding these reports.

The architects of the 19th Amendment are still patting themselves on the back for whittling away the powers of the President. 

They are yet to acknowledge the confusion that has arisen by splitting responsibilities between the President and his Prime Minister. By doing so, the officers in the lower ranks do not know who they should hold themselves accountable to.

The so-called independent Constitutional Councils that were created to prevent the President from acting arbitrarily had been outmanoeuvred by IGP Jayasundara, who simply refuses to resign. Therefore, we now have an IGP who had been sent on compulsory leave and an acting IGP to do his job.

Recently, Maithripala Sirisena dropped a bombshell of sorts when he exclaimed that the 19th Amendment had ensured that the Presidents succeeding him will not be allowed to hold a portfolio – not even the Defence Ministry. 

The question being asked now is if the President is to be a mere figurehead. Despite the fiasco this legislation has created and the hype surrounding it, this is really a toothless piece of legislation.

 When the 19th Amendment was conceived, the idea was to reduce the powers of the President. As such the President was no longer to be the leader of the State and was even to be removed from the Cabinet.

The Supreme Court, however, pointed out that if the Executive Powers that the President is presently entrusted with are to be transferred to another entity, it will affect the sovereignty of the people. Therefore, only the people can decide, via a referendum, if such a transfer of their executive power is permissible. 

It was the Supreme Court’s decision that without such a referendum, the Executive Powers of the President shall remain intact.

Therefore in the end, the 19th Amendment, that was brought forth to whittle the powers of the President, ended getting itself whittled to a toothpick. As such, the constraints this legislation places on the President are:

to place a two-term limit for a President to hold office;
reduced the term from six years to five years;

a Presidential candidate must be over 35 years of age;
only a Sri Lankan citizen may contest as a Presidential candidate. Even those with dual citizenship will not be legible;

earlier it was possible to dissolve the Parliament if it had completed a year in office. However, after the Amendment, the Parliament cannot be dissolved until it had completed four and half years;
the President can no longer sack his Prime Minister;

before the Amendment, the President could appoint any number of ministers.

 After the Amendment, the President can only appoint ministers in consultation with his Prime Minister and the number of ministers that could be appointed is restricted to 30;

Presidents succeeding President Sirisena cannot hold any ministerial portfolios
the President is no longer the sole authority in filling key positions. 

The Constitutional Council that is comprised with a representative of the President, the Prime Minister and the Opposition Leader will nominate three possible candidates to the President. He in turn must make his selection from the three recommendations;

the President may now be sued over fundamental rights violations;
the President is now answerable to Parliament; if the Prime Minister vacates his position, the Parliament will be automatically dissolved.

However, during the political discussion forum “Aluth Parlimenthuwa”, when the Supreme Court rules that the Executive Powers of the President cannot be touched without a referendum, the Supreme Court will not specify again to list the items the President can and cannot do.

 As President’s Counsel Ali Sabri noted the 19th Amendment is not a hindrance to anyone committed to his job.

This just goes to prove that at the end of the day it is the personality that counts. For the able, legislations such as the 19th Amendment are not conditions and constraints are really not issues.

(ranasingheshivanthi@gmail.com)