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Wednesday, April 24, 2024

The 19th Amendment: Supreme Court Throws a Lifeline to Save Yahapalanaya

by Rajan Philips.

The government could not have hoped for a better gift for the traditional April New Year than the Supreme Court ruling on the 19th Amendment that was read out in parliament on Thursday. I was all set to write my piece under the title, “YahaPalanaya in trouble: Ranil’s arrogance, Maithri’s silence, and Opposition confusion,” to meet my earlier than usual deadline in view of the New Year holidays. Then came the Supreme Court ruling and I was gladly forced to change the tone and substance of my articlefor the week. Prime Minister Wickremesinghe has promptly and cleverly announced that the sections (six paragraphs in Clause 11 and one paragraph in Clause 26) of the Bill that will require the people’s approval at a referendum, as determined by the Court, will be dropped from the Bill so that the rest of the Amendment can be passed with the requisite two-thirds majority. And breaking his ‘silence’ in Polonnaruwa, President Sirisena has assured that the 19th Amendment will be passed on April 20 and parliament will be dissolved soon after. “The confusion and political uncertainty will end after we have a fresh parliamentary election”, said the President.

As I say in the title, the Court has only thrown a lifeline. It could not have done anything more, and it is now up to the ‘troika’, or the “democratic junta” – to borrow Ranil Wickremesinghe’s reported moniker, to corral the numbers in parliament to secure the two-thirds majority for passage of the Amendment, and face the people at the hustings for a renewed mandate. One must not be unmindful of the uncertainties of an election, but the movement for good governance has more than a fighting chance to ensure that the project gets back on track by keeping out of parliament not only the bad fruits of the old regime but also the rotten fruits of the new government. In my view, the Supreme Court’s balanced, but not wholly unexceptionable ruling has changed the political landscape in favour of the political forces that stand for reforming the country’s system of government.

We need to welcome and acknowledge that the Sripavan Court is bringing back the decency and the decorum that has sadly gone missing from the court precincts for nearly two decades. The government also desisted from using the notorious “Urgent Bill” route for enacting constitutional amendments that had become the norm under the current constitution. The new amendment will close that route permanently. And the Attorney General showed principled flexibility in offering changes to the Bill to address legitimate concerns raised during the hearing. Inadvertently or deliberately, the Court struck almost a perfect balance between the contentions as to whether it is the President or the Prime Minister who should be the head of cabinet government. The Court seems to have given each of the two sides something to cheer about.

A balanced ruling

First, the Court quite convincingly reiterated that (1) the President is not “the sole repository of Executive Power”, or, “an unfettered repository of Executive Power unconstrained by other organs of governance; (2) “the Cabinet of Ministers collectively, and not the President alone, which is charged with the direction and control of government”; and (3) the President as well as the Cabinet of Ministers are answerable to parliament. These assertions are important statements that if any previous incumbents have exercised unfettered power without checks or balances by other organs of government, it is not because of the Constitution but because of its violation. It is also an admonition to future Presidents that under the Sri Lankan Constitution a President should have no more executive power than a Prime Minister should have in a parliamentary system. The main difference is that the President is directly elected by the People, while the Prime Minister is the leader of the largest group among the Parliamentarians elected by the people.

These are not empty assertions, for the Court ruling highlights the argument of Mr. MA Sumanthiran that the 1978 (Presidential) Constitution and the 1972 (Parliamentary) Constitution have identical provisions in regard to the exercise of Presidential powers; namely (the words in brackets are in the 1972 Constitution): “The President shall be responsible to Parliament (the National State Assembly) for the due exercise, performance and discharge of his powers, duties and functions under the Constitution and any written law (for the due execution and performance of the powers and functions under the Constitution and under other law), including the law for the time being relating to public security.”

The second aspect of the Court’s ruling deals with the main thrust of the 19th Amendment, namely, to make the Prime Minister (as in the 1972 Constitution), and not the President (as in the current, 1978 Constitution), the Head of the Cabinet of Ministers with attendant powers and functions. The Court held that this specific change in the 19th Amendment Bill will require people’s direct approval in a referendum because it is in contravention of Article 3 of the Constitution. To my mind, the Court’s reasoning to justify this determination is illogical and is inconsistent with the arguments in the first part of the Court’s ruling. The proposed change to make the PM, and not the President, the Head of the Cabinet, involves Article 4 and Article 43 of the 1978 Constitution, neither of which requires a referendum approval by the people for amendment. However, the Court’s reasoning appears to be that Article 4 (relating to the exercise of sovereignty) should be read as part of Article 3 (relating to the inalienability of sovereignty from the people).

The real difficulty for the drafters of the 19th Amendment would appear to have been in Article 30(2): “The President of the Republic shall be elected by people, and shall hold office for a term of six years” which specifically requires a referendum for its repeal and replacement, or its amendment. Curiously, Article 30(1) which establishes the Presidency and defines its powers does not require a referendum approval for its repeal. Further, the known political purpose of Article 30(2) was to prevent parliament extending the President’s and its own terms of office beyond six years without a referendum. This another instance of the sloppy terminology of the 1978 Constitution that Dr. NM Perera railed against.

Even though the ruling on Clause 11 is a significant setback to those who were hoping for a swift return to the pre-1978 parliamentary system, there are other aspects of the Amendment that would and should help facilitate the project of good governance. Most notably, the two-term limit on the presidency is now restored. There should be no surprise at the Court’s ruling that Paragraph 104(B)(5)(C) in Clause 26 will also require approval in a referendum. The purpose of this provision is to empower the Election Commission to appoint a Competent Authority to take over the management of “political broadcasts” of any (state or private) broadcasting or telecasting enterprise that contravenes the guidelines issued by the Election Commission. The subject provision, which should not have been in the Bill anyway, will also be removed before the final vote in parliament.

New debates and new possibilities

The political effect of the Court’s ruling is a balancing effect, not unusual in other instances of constitutional rulings where, deliberately or otherwise, apex courts have tried to achieve balance and consensus at the expense of logic and consistent reasoning. In my view, the alternative ruling that the relevant paragraphs in Clause 11 of the Amendment do not require approval in a referendum would only have exacerbated the political debate between the defenders of the executive presidential system the advocates for its abolition. There cannot be constitutional changes without political debates but the debate in Sri Lanka has degenerated into inconclusive absurdity predicated on short-term partisan advantages. Nothing more needs to be said on this than to point out that the political party that brought in the presidential system wants it abolished, while the party that vowed to throw it out now wants to preserve at least most of it. The Court’s ruling will hopefully put an end to this debate at least for now.

At the same time, the ruling opens the field for other debates and other possibilities in this politically eventful year. These will become clearer after the Amendment, as expected, is passed in parliament and elections are called soon after. Although some of us thought that things would develop differently under the current parliament, there is no question that this parliament needs to be put out of its misery as soon as possible. The silly debate over the Leader of the Opposition shows the ignorance in spite of experience among most of our parliamentarians. There is no recognized Leader of the Opposition in India’s Lok Sabha at present because no political party obtained the minimum 10% of the total number seats required for such recognition. And this is not the first time that the Indian parliament has been without a recognized Leader of the Opposition. In the British Parliament, there was no official Leader of the Opposition for five years (1940-45), when the three major parties were included in the war time cabinet government. The members of the Labour Party who were not in the cabinet sat in the opposition and functioned as opposition MPs under a group leader even though that group leader was not recognized as the official Leader of Opposition for statutory salary payment. So what is the big deal in the SLFP being both in cabinet and in opposition for a measly few months?

The Court ruling also throws an interesting spanner in the wheel of Mahinda Rajapaksa’s political fortunes. Will he still be interested in running for a parliamentary seat to become Prime Minister, now that the Prime Minister is not going to have any of the presidential powers as envisaged in the original 19th Amendment Bill? If you did not notice, some of the Rajapaksa supporters, who want Mahinda Rajapaksa to return to politics as the first Executive Prime Minister, were also in the forefront in appealing against Clause 11 of 19A! Now that they have succeeded in their litigation, what have they to offer to their hero in politics? And can the SLFP avoid a suicidal split and face the election as a revamped non-family Party for the second time (it was not a family Party under SWRD Bandaranaike) in its history?

Looked at it another way, the Court ruling is also a lifeline to the UNP that was getting tied up in all kinds of knots within and outside parliament. Although the UNP may fancy itself as being in the best position among all the parties to face the next election, it will not take too much arrogance and too many mistakes to end up on logs one more time. Among the others, perhaps only the TNA can afford to count its chickens before the vote. The JVP and the JHU may like their chances, but they will be in unchartered waters on their own in the next election unlike in the past. The real opportunity is for the reform movement for good governance to activate and assert itself and intervene in the selection of candidates by the major political parties, to ensure adequate representation for women and minorities, and to prevent the bad and the rotten fruits of the old parliament from slipping through the electoral cracks into the new parliament.


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