Is the 19A Unconstitutional ?

3 April 2018 12:00 am - 0     - {{hitsCtrl.values.hits}}

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  • Expert Views Sought
  • Constitutions are serious business. They cannot be the playthings of self-serving politicians.


This brief note will focus exclusively on the Constitutional Propriety of the 19th Amendment to the 1978 Constitution. It will not dwell on its pros and cons.


The people of Sri Lanka went to the polls on January 8, 2015 on the explicit understanding that: 


(i) They were going to elect a powerful ‘Executive President’ under the 1978 Constitution 

(ii) The ‘Executive Presidency’ was to be subsequently abolished

(iii) Its abolition and the concomitant new dispensation was to be presented to the ‘People’ for their approval.

Its mere weakening was never on the radar.


President Maithripala Sirisena who was elected on this basis had no mandate to allow the weakening of the Executive Presidency through the 19th Amendment without the prior approval of the people at a Referendum.


Its approval at a Referendum is compulsory since as per Article 3 (Untouched by 19th Amendment) which is ‘Entrenched’ in the Constitution:


“In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise. “


The key takeaways are:


1) Article 3 is ‘Entrenched’ in the Constitution

2) “Sovereignty is in the People and is inalienable”

3) “Sovereignty includes the powers of government, fundamental rights and the franchise. “

 

Another facet to the premise that a referendum is needed is:


Article 4 (b) (Post 19th Amendment):


“The executive power of the People, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People;”
The 19th Amendment has undeniably weakened “The executive power of the People” which “shall be exercised by the President of the Republic elected by the People;”


The key words are: “President of the Republic elected by the People”. This must be viewed in the context of:


“The franchise” of the “People” being “inalienable” (Article 3 ‘Entrenched’ in the Constitution)


Nevertheless, with all due respect to the constitutional expert Dr. Nihal Jayawickrama, it is difficult to subscribe to his assertion in his learned article ‘The Illusory Executive Presidency’ in the ‘Daily Mirror’ of March 19 that the 19th Amendment has diluted the powers of the Executive President under the 1978 Constitution to such an extent that the holder is now virtually reduced to what existed under the 1972 Constitution, where the President was largely a ‘Ceremonial’ Head of State.
Conclusion: It is the view of this writer who has no pretence for any expertise in Constitutional affairs that the 19th Amendment is inimical to the Sovereignty and Franchise of the people, which is inalienable and hence compulsorily demands the approval of the people at a Referendum.


This is in addition to not less than two-thirds of the total membership of Parliament approving the same.


Under the circumstances, is not the 19th Amendment unconstitutional? 


The learned views of constitutional experts such as Drs Nihal Jayawickrama, Lakshman Marasinghe and others will be appreciated.


Constitutions are serious business. They cannot be the playthings of self-serving politicians.


It is crucial to ensure that the abolition of the Executive Presidency will not lead to the creation of an ‘Executive Prime Minister’ through the back door without the consent of the people. 

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