The 19th Amendment: Supreme Court throws

a lifeline to save Yahapalanaya

by Rajan Philips-April 11, 2015, 1:35 pm

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: Ranils arrogance, Maithris 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 peoples 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 Wickremesinghes 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 Courts balanced, but not wholly
unexceptionable ruling has changed the political landscape in favour of the
political forces that stand for reforming the countrys 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 Courts 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 peoples direct approval in a referendum because it is in
contravention of Article 3 of the Constitution. To my mind, the Courts
reasoning to justify this determination is illogical and is inconsistent with
the arguments in the first part of the Courts 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 Courts
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 Presidents 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 Courts
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 Courts 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
Courts 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 Indias 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 Rajapaksas 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.
Posted by Thavam