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19A – Chaos or nepotism?

22 June 2019 12:00 am - 0     - {{hitsCtrl.values.hits}}

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The declared aim of the 19th Amendment was to curb executive powers of the President with the lofty ideal of creating better governance to achieve the ultimate goal of “Good Governance.” 


However, in view of the judgment of the Supreme Court with regard to the 13th Amendment, which stated a federal structure would automatically be created if the executive presidency were abolished while retaining the Provincial Councils, the executive presidency itself had to be retained. 


Public opinion created against executive presidency since its inception prevented our policymakers from engaging in any form of objective evaluation of the benefits of a system where executive and legislative powers were separated with suitable checks and balances before undertaking “Project 19A.” 


As a result, the 19th Amendment which was touted as a panacea for all ailments of the country saw the light of day without any attempt to reform the system based on clear separation of powers. 


Many good souls believed the undemocratic features in the Constitution were solely due to executive powers being vested in the office of the president. Thus, they were blind to the fact that the malady may have been due to the executive power and the ability of bringing laws both being vested in a group of politically aligned individuals. 


Based on the notion that spreading out executive power was the means of curing the defects in the system, executive power was spread out to multiple institutions under 19A. 
The resultant “better democracy” at least in the minds of the genuinely convinced was the messiah for achieving effective, efficient, corrupt-free and smooth governance while preserving all of what the country had achieved previously. 


They thought by diluting certain executive powers vested in the President and spreading them out, even to the extent of allowing certain “unelectable” persons to exercise executive powers, would create this magical formula of governance which could autopilot the country into an “enlightened” one. 


They in their wisdom would have thought “mundane” matters such as national security and economic development would take care of them once such a society was created. 
However, several argued that the hidden aim of the 19th Amendment was to prevent some of those who were in power prior to January 8, 2015 from returning to such clout or having anything to do with the reins of power. 


Nevertheless, if one takes an objective view of 19A after experimenting with it, one gets the feeling that these aims, namely the declared and allegedly hidden, are both not achieved. 
Instead, the 19th Amendment has primarily created a dichotomous power structure preventing any form of meaningful governance unless there is complete unity of purpose at least in the President and the Prime Minister. 


The scheme in 19A can only take off if the President and the Prime Minister work in absolute harmony without any difference whatsoever. 


In two recent but separate articles by Dr. Nihal Jayawickrama and Prof. G.H. Peris, reference has been drawn to certain provisions of the 19th Amendment which demonstrate the removal of certain powers vested with the President after his successor is appointed (in view of transitional provision of 19A) and the continued existence of certain powers in the executive after he is succeeded. 


Prof. Peiris explains how the next President would also wield executive power to an extent that would influence the day-to-day running of affairs of the country while Dr. Jayawickrama elaborates on how the President would be unable to exercise any meaningful power.  Against this backdrop, the purpose of this article is to discuss whatever the declared or hidden intention may have been, the actual effect of the 19th Amendment in the day-to-day governance of the country. This also seeks to suggest certain remedial measures to be in line with the declared objective of creating good governance leading to effective, efficient and corrupt-free administration. 


If one were to look at the 19th Amendment in a holistic perspective, what it had done was scattered executive powers the President was in control of and made governance impossible without the absolute coordination and cooperation of at least the Prime Minister. 


In effect, what this amendment has done was weaken the nation by preventing meaningful governance. After 19A, the institutions of the President and the Prime Minister can make the other redundant by non-cooperation. Let me demonstrate the reasons for saying so with reference to the various articles in the 19th Amendment:  


Article 30 makes the President the head of state, head of the executive and of the government and the Commander in Chief of the armed forces. He also declares war and peace. 
However, as Dr. Jayawickrama has pointed out in view of transitional provision (Section 51 of the 19th Amendment), it is only the incumbent President who will continue to hold the Defence Ministry. 


Any future President, though being the Commander in Chief of the armed forces, head of the executive and of the government will not be able to hold a specific ministry including that of defence. Thus he may declare war but would not be able to fight it without the support of the Defence Minister who is appointed on the recommendation of the Prime Minister. 


On the other hand, the Defence Minister cannot be directed by the Prime Minister to fight a war without the President declaring one and giving orders as the Commander in Chief. 
As correctly pointed out by Dr. Jayawickrama, in terms of Article 43 (2), the President can only appoint as ministers, persons from among the Members of Parliament on the advice of the Prime Minister. This means, as the President is not an MP, he would not be able to hold any ministry. 


However, though the President has to seek the opinion of the Prime Minister in appointing specific ministers, he still decides on the number of ministers (subject to restrictions placed by Article 46(1)) and their subjects and functions in terms of Article 43(1). 


Also, the President may at any time change the functions, subjects and composition of the Cabinet of Ministers without the sanction of the Prime Minister in terms of Article 43(3). The President appoints all secretaries to ministries; Vide. Article 50(1). 


Thus we have a situation where though the Prime Minister may decide who should be a minister, the subjects and functions of such ministers would be decided by the President. The assignment of secretaries to those ministries would also be by the President. 


Therefore, without the absolute cooperation of both the Prime Minister and the President, no ministry will be able to function. 


Furthermore, Article 42(3) states that the President shall be a member of the Cabinet and head of the Cabinet of Ministers. This means the holding of Cabinet meetings have to be facilitated by the President. 

 

19A saw the light of day without any attempt to reform the  system based on clear separation of powers

19A has created a dichotomous power  structure preventing any form of meaningful governance

Any future President will not be able to  hold a specific ministry including that of defence

 

Also in terms of Article 33(2)(a), the President makes a statement of government policy in Parliament at the commencement of a session and that function is not with the Prime Minister. 
Therefore, if the President and Prime Minister do not agree on the government policy, the government will have to function without one declared. The President can keep on appointing secretaries whom he wants and ministers will have to carry out their programme of work through these secretaries whose appointment and removal is with the President. 


The Cabinet of Ministers can be shifted at the whims and fancies of the President if he does not agree with the Prime Minister, similar to the shifting of secretaries. 


The President’s immunity is only assailed in terms of the provision to Article 35(1) and that is by an application to the Supreme Court under the chapter which protects fundamental rights. 
Such application would be against the Attorney General (AG) and each time the Prime Minister feels the President has violated his fundamental rights, he may go to the Supreme Court. 
It is only if the Supreme Court considers such act of the President as a violation of a fundamental right of the Prime Minister or other individual, a direction can be made to the AG to rectify the same. 


Thus absolute chaos would reign due to 19A unless there is perfect understanding and mutual respect between the President and the Prime Minister. 


Nevertheless, there is some merit in the argument that some benefit has accrued to the country that the creation of the Constitutional Council(CC) whose responsibility is the appointment of certain commissions and individuals to posts given in the schedule. 


However, the CC is expected to formulate rules as to how these appointments are to be done; Vide, Articles 41B and 41C. Up to now, no such rules have been devised by the CC to the knowledge of the public. 


Whether the CC creates such systems and procedures or not, there is nothing anybody can do about it. Therefore, if the CC rejects the nominee of the President without any valid reason, the President can keep on sending names and the CC can keep on rejecting them. The President can also keep on sending names to the CC knowing it might not approve them. This again creates a situation where the country becomes ungovernable. 


If one peruses the articles in relation to the exercise of powers of the President, one can see that most of those powers are curbed and in exercising them, the President is answerable to Parliament. For instance, S6 of the 19th Amendment states the President is responsible to Parliament when exercising, performing and discharging duties under any written law including in relation to public security. 


On the other hand, the CC is immune from any sort of legal action by any court and no person or institution can question the decision of the CC; Vide. Article 41. Thus in theory, 19A makes the executive answerable to Parliament while making Parliament not answerable to any authority whatsoever. 


Had there been a harmonious separation of powers between the institutions; Parliament would not have been vested with such authority. An authoritarian institution in whatever form, be it the President or Parliament, is a clear violation of the principles of separation of powers. 

While the framers of 19A made sure in exercising presidential powers the President is answerable to Parliament, they have also made sure the Prime Minister is not subjected to any sort of review by any institution. 


Nowhere in the 19th Amendment has it been mentioned that the Prime Minister’s powers are subjected to any form of limitation. However, as Article 42(3) states, the President shall be the head of the Cabinet of Ministers. The Prime Minister cannot carry out the functions of governance without the cooperation of the President. 


Cooperation of those who would be politically-opposed to each other would be an impossibility and even if politically-similar views are held, if there were personality clashes between the Prime Minister and the President as is there now, the country becomes ungovernable. 


This is not to say abilities of individuals holding these offices ought to be discounted and individuals holding these offices can make a convenient excuse of the nature of their office to cover up their incapability. However, what would be essential is for the individuals who hold offices of the Prime Minister and the President would be to agree on every aspect of governance for the country to function smoothly. 


These being some of the glaring shortcomings of the 19th Amendment, it is suggested that the system of checks and balances between the executive arm without scattering the powers to various parts and giving the entire executive power to the President would have created a better system. 


For instance, the rules for the selection to posts could have been formulated and given statutorily to the CC. The CC could have been directed to call upon citizens of the country either on their own or for the citizens themselves to apply to be appointed to these high posts and the selection process could be done based on criteria provided statutorily while several names 
(may be three) could have been sent to the President. 


The President could have made his selection from out of those nominated. This would have been a far better method of getting the best person appointed. 


Executive power of the President, like in the American Constitution, could have been given entirely to the President where he decides on the best individuals to run the executive (as ministers). The type of ministries could have been decided by Parliament and could have been fixed in terms of the Constitution itself. 


The control of public finance could have continued to be with Parliament and the executive while legislative functions could have been separated creating a more efficient form of government which would be conducive for good governance rather than what has been created now. 


The legislature itself could have had two houses where the fashionable demand for “educated” individuals being in Parliament could have been met by reserving one house for individuals with certain educational qualifications along with certain ex-officio posts to represent different interests. 


However, if one were adamant on continuing with 19A as it is, then the only hope is that two individuals who would see eye to eye in respect of every act of governance would be appointed as the President and the Prime Minister in the future. 


If this cannot be done, governance would be far worse than what it is today. Ultimately, though the hidden aim may have been to prevent certain elements of the previous dispensation holding governmental office, or may be perhaps for defeating nepotism, the framers of the 19th Amendment quite unwittingly may have created a situation where only members of a very close family unit would be able to run this country without violating the provisions of 19A. 


This is a sad indictment on the citizens of this country for allowing a declared intention to be hijacked by the hidden intentions of a few who have unwittingly created a situation for the inevitable return of “family rule.” 

 

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