In defence of the 19th Amendment

• A comparative jurisdictional response to the critiques on the system of governance in Sri Lanka under the 19th Amendment to the Constitution

The 19th Amendment to the Constitution of the Democratic Socialist Republic of Sri Lanka (hereinafter referred to as ‘the 19th Amendment’) has given rise to a lot of controversies which led to the calls for its abrogation even from the founders of this amendment, especially from former President Maithripala Sirisena whose main election promise was to adopt the 19th Amendment within 100 days should he become the president of Sri Lanka during the Presidential Election held in 2015.

Despite the ample criticism it has received, this piece of legislation can be regarded as undoubtedly one of the most progressive constitutional amendments which has ever been passed by the Parliament of Sri Lanka. Even though 212 out of 225 Members of Parliament voted in favour of the 19th Amendment, later on it drew a lot of criticism not only from the politicians but also from academics and members of civil society. These critiques got sharpened during the Presidential Election held in November 2019 and the General Election has brought this topic to the limelight again. 

Prime Minister Mahinda Rajapaksa has asserted at several election rallies that his party would repeal the 19th Amendment if it secures a majority in the Parliament after the General Election. Most of these critiques are based on the argument that some of the provisions in the 19th Amendment, particularly those which are aimed at curtailing the arbitrary powers of the president, can lead to an inefficient and unstable system of governance.      

But if those contentious constitutional provisions are analysed carefully, a lot of similarities can be seen between them and the constitutional practices of the other jurisdictions which are considered as the ideals of efficient governance and political stability. Hence this article does not provide a doctrinal defence to 19th Amendment; it rather focuses on responding to the arguments levelled against the 19th Amendment by drawing a comparative jurisdictional analysis. Thus I will be focusing on three of the most controversial provisions of the Constitution of Sri Lanka as amended by the 19th Amendment (hereinafter refers to as ‘the Constitution’) namely Article 46, 41A and 70 and analyse them in light of the constitutional practices followed by France, United Kingdom and United States of America. 

Accordingly I will be elaborating my arguments under three topics which deal with the office of the Prime Minister and Cabinet of Ministers, functions of the Constitutional Council and the President’s power to dissolve the Parliament respectively. 

Position of PM and Cabinet of Ministers

The office of the prime minister under the 19th Amendment became extremely controversial after the 2018 constitutional crisis in Sri Lanka which began with the removal of Ranil Wickremesinghe from the office of the prime minister by the then President Maithripala Sirisena in a surprise move. This constitutional paradox became exacerbated when Wickremesinghe refused to step down from the premiership claiming that his removal was unconstitutional. 

Under Article 46(2) of the Constitution the Prime Minister cannot be removed from the office till the Cabinet of Ministers functions and the Cabinet of Ministers can only be dissolved by the Parliament. Thus the Prime Minister cannot be removed from the office by the President in normal circumstances. Furthermore Article 46(3) of the Constitution provides that a Minister or a Deputy Minister cannot be sacked by the President without the advice of the Prime Minister.

The critiques against these provisions are based on the argument that the country can end up in a deadlock if the President and the Prime Minister are elected from two different political parties since the President does not have the power to remove the Prime Minister or any member of the Cabinet. I hope to respond to this argument by drawing attention to the constitution of France from which the founders of Sri Lankan Constitution seemed to borrow the concept of executive presidency.

Achieving the political stability was the fundamental objective behind the adoption of French Constitution which ended up creating one of the most powerful presidents in the world. It was a response to the inefficiency which wearied up the French people under the previous constitutions. Even though the French Constitution aimed at reducing the powers of the legislature as the preliminary measure to gain the political stability, it does not confer the power to the President to remove the Prime Minister. Article 50 of the French constitution explicitly states that the Prime Minister can only be removed by the National Assembly which is the legislature under the French Constitution and Article 8 of the Constitution emphasises that ministers can be removed by the President only on the recommendation of the Prime Minister. 

Despite having such Constitutional provisions which strengthen the position of the Prime Minister and the Council of Ministers in a semi-Presidential system where the President acquires an ample amount of power over all three branches of the government, France has gained a rapid growth in political stability since the commencement of its current Constitution. French citizens have the privilege of having one of the most efficient governments in Europe thanks to their constitution which not only gives the utmost importance to the President in the system of government but also guarantees that the Prime Minister and Ministers are not removed arbitrarily by the President from their respective offices. 

Thus the argument that strengthening the position of the Prime Minister who commands the confidence of the Parliament can lead to the creation of two power centres in government is completely invalid since such Constitutional practices are successfully and efficiently being followed in the other countries particularly in France which was considered as the ideal model of stable governance in the process of adopting the current Constitution of Sri Lanka.    

Constitutional Council and President 

The current model of Constitutional Council was set up under the Article 41A of the Constitution and its main two functions are the recommendation of appointments to independent commissions and the approval of recommendations made by the President to several high offices. However, it has been contended that the functions of this body can lead to a gridlock between the President and the members of the Constitutional Council. The gist of this argument is that if the President’s nomination to a high office gets rejected by the Constitutional Council, he can keep that post vacant without nominating another person and hence that will lead to unstable and inefficient system of governance.

I hope to discredit this argument by referring to the way in which Ambassadors, public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States are appointed in the United States. Article II, Section 2 of the United States Constitution states that such executive and judicial branch posts shall be filled by the President only with the Advice and Consent of the Senate. Accordingly the Senate has always jealously guarded its power to review and approve or reject presidential nominees to such high offices.

However despite the fact that President must seek the approval of the Senate even to appoint his own Cabinet members, there is a little doubt on the efficiency of the governing system in United States. In fact since President Gerald Ford, all the Presidents of the United States had to work with a Senate controlled by the opposite party at least for half of their terms. Even in such circumstances where the President and the Senate were sharply divided on the party lines, this Constitutional practice had not shaken the political and economic stability of the United States. Thus although the conflicts between the President and Constitutional Council are unpreventable as the President’s nominations get reviewed by the members of another body, the mere fact that President’s nominations to the high offices in the country are subject to the recommendation of the Constitutional Council does amount to a break down in an  efficient system of  governance.  

Curtailing President’s power to dissolve the Parliament 

The growing criticism against the 19th Amendment came to its peak after 13 December 2019, when the Supreme Court quashed the then President Maithripala Sirisena’s act to dissolve the Parliament unconstitutionally. Before the 19th Amendment came into operation the president had the power to dissolve the Parliament after one year from the date of the General Election. But this time period was extended to four-and-a-half years under the 19th Amendment unless the Parliament decides to be dissolved by itself.

The main argument levelled against this provision is that under this Article status of the Parliament becomes static and placing the Parliament in such a steady position will lead the country in to an anarchy in a context of a hung Parliament given the fact that the dissolution of Parliament before four and half years from its first meeting becomes impossible as it requires a two-thirds of the Parliamentarians to vote in favour of such dissolution.

This argument can clearly be rebutted in light of the constitutional practice followed in the United Kingdom. Section two and three of the Fixed-term Parliaments Act 2011 of the United Kingdom state that the Parliament cannot be dissolved before its term ends, unless two thirds of the Members of Parliament pass a motion to hold an early general election. The contention that the Parliament becomes immovable if its term is fixed has been proven completely invalid after this legislation came into force. In 2015, a General Election was held in United Kingdom and the next election was due in 2020 in terms of the said provisions in the Fixed-term Parliaments Act.

But the Parliament of United Kingdom was dissolved twice before 2020. In other words, within the last five years, United Kingdom witnessed three general elections. Thus it is crystallised that a Parliament does not become static because of the mere fact the constitution ensures that the legislature not being dissolved by one individual in an arbitrary fashion. A special attention is needed here with regard to the problems which can be arisen if no party enjoys a clear majority in the Parliament after a general election. United Kingdom voted for such a hung Parliament in 2017. However Conservative party managed to form a government in a way of a coalition and amid various setbacks, the government functioned till September 2019. On 3 September 2019, the government lost its working majority and on 29 October 2019, Parliament voted for an early general election after being persuaded that no party can command the confidence of the Parliament. This very clearly shows that even if a Parliament cannot be dissolved by one individual before it term ends, in practice when no party is able to form a stable government, Parliament has no choice but to be dissolved by itself in order to defend its legitimacy. This again proves that critiques against Article 70 of the constitution are baseless and fictitious.

This article has responded to the arguments which claim that the adoption of the 19th Amendment to the constitution resulted in inefficient governance and political instability in Sri Lanka by using a comparative jurisdictional approach. In light of such a comparison between the provisions of the 19th Amendment and the constitutions of other jurisdictions I not only tried to rebut the argument brought against the 19th Amendment but also build the argument that the said Constitutional provisions are intended to curtail the arbitrary powers of the President and preserve the integrity of the other two branches of the government. 

Even though various critiques have been levelled against those provisions based on the assumption that such a constitutional framework will lead the country to an inefficient system of governance, the countries which follow the same constitutional practices have become the champions of economic and political stability. 

Thus it is irrational to come in to the conclusion that these safeguards against the President’s arbitrary powers will not work on the ground underlining some isolated incidents which occurred under extraordinary circumstances. Therefore the 19th Amendment to the Constitution is capable of not only ensuring that the rule of law is being prevailed in Sri Lanka but also establishing an efficient system of governance.

(The writer is a student at the Faculty of Law, University of Colombo. Prior to entering the university, he worked in one of the leading law firms in Sri Lanka.)