- Removal of the Prime Minister: Revisiting 19A
- Can the President remove Prime Minister?
The 19th Amendment (19A) to the Constitution of Sri Lanka was passed by the 225 member Parliament on 28 April 2015 (Three years ago) 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)
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.
The breakaway group of the UPFA that supported the President was in fact also loyal to the deposed President.
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.
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!
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.
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 acted on his advice in appointment and dismissal of Ministers.
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.
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.
Immunity of the Supreme Court on Fundamental Rights will not apply to official acts of the President.
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.
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.
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.
These clauses were introduced in line with cohabitation of democratic principles which was new to Sri Lanka.
- In 19A the sitting President can seek re-election in four years in the first term.
- Parliament’s term is also reduced to five years and the President cannot dissolve Parliament until the expiration of four and a half years
- The present Cabinet is top heavy with overlapping functions among the members.
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 “.
CHANGES ENVISAGED IN 19A AND FUTURE POLITICAL REFORMS
I have taken the liberty to quote from a research paper published by Dr Asanga Welikala (ref. given at the end)
Page 8 of the above under reference states:
“Even though the Presidential campaign of 2014/15 endangered a remarkable societal discourse on democracy and good governance, public involvement in the process of Constitutional reform stopped abruptly on the day of the election. No effort was even made to share evolving documents with the public, let alone to put in place a framework of public consultation, maintaining the elitist nature of Sri Lankan constitution-making.”
“Secondly, while a wide political consensus was built for democratic reforms, the consensus is unlikely to extend to the state restructuring required to address Tamil and other minority demands for devolution of power sharing. To address these issues in the new constitution the government seeks to promulgate in the next Parliament, it will need to spearhead a far more rigorous consensus building process across the ethnic communities.
“Thirdly, the significance of personalities in Sri Lankan politics continues to extend to Constitutional change while deeper philosophical differences about Presidentialism and Parliamentarism between abolitionists and reformists played a part, it is clear that the eventual compromise was decided more in light of how Sirisena and Wickremesinghe might work together in the future.”
I have attempted to analyze the present status of the 19A to the Constitution and the powers of the President in relation to the PM and the Cabinet.
It must be stated that there are a number of grey areas in relation to the aspirations of power between the President, PM and the Cabinet.
A member of the Law Faculty of the University of Colombo states that the PM can be removed, when he sends a letter to the President or if the PM is not a Member of Parliament.
However, Clause 46 (2) of the Constitution states that the PM shall continue to hold office throughout the period, which the Cabinet of Ministers continues to function under the provisions of the Constitution.
It was also reported that a group of civic organizations as far back as February 2018 had gone to Court in response to the Supreme Court ruling with regard to the President removing the PM.
It is evident that from media reports the President was planning to remove the PM, six days after the Local Government elections.
However with the dilution of the 19A, as explained in this article, it is possible for the PM to resign if he loses the confidence of Parliament.
The above provision is what the legal eagles of the Opposition argue will help in ousting the PM by a simple majority of 113.
It is a coincidence that April 4, 2018, is the 50th Death Anniversary of Martin Luther King, which is also the Day of the NCM against PM.
I do hope that eliminating the PM from active politics will not end the campaign for human rights and minority rights in Sri Lanka or bring a totalitarian regime of the former leader.
In this context, I am sad to state the President has become a pawn in the power hungry and greedy politicians who are waiting to grab power as soon as possible.
The recent statements by SLFP/UPFA Ministers some of whom were even rejected by the people at the last election are the most vociferous in removing the PM.
Further, if the President was convinced that the PM collaborated with the perpetrators of the CBSL on the Bond Scam as stated by his own Ministers from the SLFP/UPFA, he could have removed the PM under the Constitution before 19A, which entered into force only in May 15, 2015 as the Bond Scam was exposed in February 2015.
This action would have brought Mahinda Rajapaksa as the PM at the August elections in 2015.
However, I am of the view that even if the NCM is a success it may result in legal issues where the Judiciary may be involved for the final determination unless the PM resigns on his own.
Dr Asanga Welikala ESRC teaching Fellow in Public Law at Edinburgh Law School and Associate Director of the Edinburgh Centre for Constitutional Law and Senior research fellow CPA Sri Lanka -“Sri Lanka :The Ninetieth Amendment to the Constitution -from start to finish”- Journal of the International Institution for democracy and Electoral Assistance (International IDEA)
(The writer is retired Economic Affairs Officer United Nations ESCAP and can be reached at email@example.com)