CONCEPT – SRI LANKA NEW CONSTITUTION 2015

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CONCEPT – SRI LANKA NEW CONSTITUTION 2015

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• The 19th Amendment (19A) to the Constitution of Sri Lanka was passed by the 225 member Parliament on 28 April 2015 with 215 voting in favour, one against and seven absent. However, due to a large number of Committee Stage Amendments, it could be certified into law by the Speaker only on 15 May 2015.
• The above amendment was a result of promise made by the President at the January 8, 2015 Presidential Election which he won by 6, 217 162 votes (51.28% ) as against Mahinda Rajapaksa who polled 5,768, 090 votes (47.58% ) from the UPFA and it is ironical that now the present leader of the UPFA /SLFP is the sitting President himself. President Sirisena appointed Ranil Wickremesinghe as Prime Minister who was the Leader of the Opposition as Head of a minority Government.
• However, the President and his Unity Government did not achieve punishing wrongdoers of the former Government and was also bogged down in curbing the present members of the Unity Government following the footsteps of the former regime.

• THE DRAFTING OF THE 19TH AMENDMENT (19A):

1. The drafting commenced under the above scenario with the ruling coalition as well as the Opposition that held a Parliamentary majority deliberating on major issues.
2. The breakaway group of the UPFA that supported the President was in fact also loyal to the deposed President.
3. Accordingly, the sitting President had to persuade his former party colleagues to support his reforms and eventually the UPFA/SLFP executive committee elected President Sirisena as Leader, which is still disputed by Rajapaksa.
4. The 19 A envisage to return to a more democratic form of governance as compared to the draconian 18A, which abolished the two-term limit for a President and passed within ten days!
5. However, the 19A disappointed people who wanted the abolition of the Executive Presidency but this was more like a compromise possible within the present balance of political power.

• THE MAIN CHANGES OF 19A:  The presidential term is reduced from 6 to 5 years with the restoration of the two-term limit, which was changed by the previous regime to unlimited terms as in 18A. In 19A the sitting President can seek re-election in four years in the first term.

1. Parliament’s term is also reduced to five years and the President cannot dissolve Parliament until the expiration of four and a half years from 1 September 2015 (by 1 March 2020) unless the MPs request dissolution with a two-thirds majority. These provisions restrict the President in his ability to act on his own and have established fixed terms with separation of powers.
2. Immunity of the Supreme Court on Fundamental Rights will not apply to official acts of the President.
3. The 19 A restricts the number of Cabinet Ministers to thirty and number of other Ministers. However, on the ground that the two largest parties represented in the present Parliament have formed the Yahapalanaya Government, there was provision made to enlarge the Cabinet by an Act of Parliament.
4. Accordingly, the present Cabinet is top heavy with overlapping functions among  the members. It must also be mentioned that such an enlarged Cabinet is a great burden on the people who have to maintain these representatives elected as their servants with perks such as duty-free cars, free accommodation, payment for their utilities, security and allowances for the attendance of Parliamentary sessions.
5. The 19A also removed political patronage of law enforcement as was done during the Rajapaksa regime by categorically providing that the Attorney General and the Inspector General of Police should retire on reaching the age of 60 years.

• CHANGES TO THE GAZETTED BILL OF 19A: The above bill was released on 16 .3. 2015, on the orders of the Prime Minister. This Bill saw an important reduction of the powers of the President and included that the PM was the head of the Cabinet and provided that the President act on his advice in appointment and dismissal of Ministers.
• THE SUPREME COURT (SC) DETERMINATION ON 19A: A number of petitions were filed stating the 19A was unconstitutional taking executive power from the President as enshrined in the Constitution. The SC disagreed with the above and determined that the executive power exercised by the President and the Cabinet was fundamentally the sovereignty of the people and not something exclusive to and personal to individuals holding the office of President. Accordingly, the 19A provides to make the PM and Cabinet, and exercising powers without the consent of the President is unconstitutional and will need a referendum.
• The SC also determined that as long as the President was the final authority the execution of executive power on the advice of the PM or cabinet would be constitutional.
• On the above determinations by the SC, the earlier provisions contained in the 19A Bill referring to the PM and the Cabinet had to be removed at the committee stage when the Bill was sent to Parliament and the changes were effected mainly to avoid a referendum.
• THE FINAL TEXT OF THE 19 A:  With the above changes, the President is the head of State, Head of the Executive and the Government, and the Commander-in-Chief. He is also a member of the Cabinet, which is responsible to Parliament for the issue of Presidential orders and control of the Government.  The President has to appoint the MP most likely to command the confidence and trust of Parliament as the PM. The President has to determine the number of Cabinet Ministers, the assignment of subjects to Ministers and retains the power to appoint and dismiss Ministers.  In connection with all these powers, the President needs to only consult the PM which he thinks necessary and the advice clause in the original 19A is very weak where it was categorically stated that “where the President is required to act on the advice of the PM “.

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