Impact of the 19th Amendment One Year On

This post is about the 19th Amendment to the Sri Lankan Constitution which occurred a little over a year ago when it was passed on the 27th of April 2015. Before I mention the 19th Amendment, I will give some background to Sri Lankan Politics of the current decade that relates to it.

In 2010, Sri Lanka’s then President Mahinda Rajapaksa passed the 18th Amendment to the Sri Lankan Constitution which made the President far too powerful and leading Sri Lanka towards dictatorship. The biggest problems of the 18th Amendment were its removal of the two-term limit for Presidents allowing him/her to contest indefinitely and bringing independent commissions under the President. Sri Lanka’s current Government led by President Maithripala Sirisena introduced and passed the 19th Amendment. Its changes include restoring the two-term limit & the power of independent commissions as well as further reducing presidential powers & increasing the power of the Prime Minister.

When Sri Lanka received independence from Britain in 1948, Sri Lanka, then known as Ceylon had a Parliamentary system of Government with the Prime Minister being the Head of Government and the Queen as the Head of State. This changed in 1972 when Sri Lanka became a Republic with the President replacing the Queen as Head of State. The President’s role was a ceremonial one. This changed in 1978 when Prime Minister J.R. Jayewardene introduced a new constitution combining both the Head of Government and the Head of State in an Executive Presidency, which he then assumed. The Prime Minister’s power became significantly less, at times appearing to be a ceremonial role. The role of the Prime Minister since the Executive Presidency in Sri Lanka, especially relating to each of those Prime Ministers is a complicated issue deserving of an article of its own. However, what I am interested in is how the 19th Amendment changed the role of the President and the Prime Minister as well as its impact on the country.

The 19th Amendment was originally intended to abolish the Executive Presidency, but it seemed less likely that it would be carried out after the election of President Maithripala Sirisena. Prior to the 19th Amendment’s passing, there was a report that the 19th Amendment would create a dual executive system. Since the 19th Amendment reduced the powers of the President and increased the powers of the Prime Minister, there is a possibility that the 19th Amendment did in fact result in Sri Lanka having a dual executive system. I hope that this article will give information on this topic via people’s contributions on whether this is the case allowing us to make our own conclusions.

I decided to ask several notable people in Sri Lanka about this to get information on the subject and to present differing perspectives on the same issue. I thought that doing so would allow us to learn about the impact of the 19th Amendment, giving us the ability to think about this issue ourselves. I will be providing quotes from 6 Sri Lankans as well as from the paper “19th Amendment - The Wins, the Losses and the In-betweens” written 1 year ago in June 2015 by Nishan de Mel and Gehan Gunatilleke of Verité Research. The question I asked these 6 Sri Lankans is: "In the year since the 19th Amendment was passed, how do you think it changed the role of the President & Prime Minister and what impact do you think it had on Sri Lanka?"

On the issue of the current roles of the President and Prime Minister, Attorney at law and founder of the Citizens’ Movement for Good Governance (CIMOGG) Elmore Perera says “Without seeking the total abolition of the Executive Presidency, the 19th Amendment sought an arrangement for the coexistence of an Executive President and a Prime Minister. In a welcome display of Judicial Independence, the Supreme Court held that several provisions in the proposed 19th Amendment required the approval of the people at a referendum. Without seeking such approval, all such amendments were dropped and a mere shadow of the original Bill was presented to Parliament.” Economist and former Deputy Governor of the Central Bank of Sri Lanka W.A Wijewardena says on the Presidency, “President is still the Executive President in the interim period and therefore there is no real feeling about the dilution of the powers of the President.” Jehan Perera, Director of the National Peace Council in his thoughts on the President’s role as well as that of the Prime Minister is more positive as he says “Prior to the 19th Amendment, the power of the President was overwhelming in relation to the Prime Minister, which is what prompted R Premadasa to say that when he was Prime Minister he was like a peon. Prior to the 19th Amendment the President had the power to appoint the Cabinet on his own, and also to dissolve Parliament at his will after one year. The 19th Amendment has permitted the President and Prime Minister to work together on a basis of equality. This has been helpful to the sustenance of the coalition Government in which the two main parties are working together.”

Journalist and Media Personality Savithri Rodrigo says on the President’s role that “while the 19th Amendment ensures the elimination of authoritarian dictatorships, there still remains almost a tacit power that the post of President implies. The general citizen is unaware that the President is not 'God' anymore, a sentiment that will take some time to dissipate.” Regarding the joint role of the President and the Prime Minister she adds “However, on the footing of practical governance, there's much more discussion and even a process of 'agreeing to disagree' in governance decisions as was seen in the recent appointment of the Central Bank Governor, which again is a refreshing change.” Dhananath Fernando, Chief Operating Officer of public policy think tank Advocata Institute says “The role of the President and Prime Minister I am not very convinced. But personally I feel at least PM is somewhat responsible for the Parliament compared to previous Government. The composition and the calibre of the Parliament comes secondary regardless of what political flags they host.”

The 19th Amendment did change the relationship between the President and the Prime Minister. Elmore Perera says “One year after the 19th Amendment was passed, one of the few things that is clear is that the President and Prime Minister cannot survive, one without the other.” As the President and Prime Minister come from different political parties with different ideologies A.C. Visvalingam, President of CIMOGG says “The "cooperative(?)" tug-of-war between the President and the PM is also something in the nature of a safety feature.” The Verité Research paper said the following on the President’s and Prime Minister's role in Cabinet appointments: “While the President is constitutionally bound to obtain the advice of the Prime Minister when appointing Cabinet Ministers, he may change the composition of Cabinet portfolios without any advice or consultation. Under Article 43(3), the President is free to make changes to the composition of Cabinet portfolios as he sees fit. For instance, it is possible for the President to remove a Cabinet Minister’s portfolio and reassign that particular portfolio to another Minister without consulting the Prime Minister. The President is, however, bound under Article 46(3)(a) to obtain the advice of the Prime Minister when removing any particular Minister from office.” (Nishan de Mel and Gehan Gunatilleke, “19th Amendment - The Wins, the Losses and the In-betweens”, Verité: 2015)

On positive issues of the 19th Amendment, W.A Wijewardena mentions the following “The independent commissions have been appointed and they have already started to show their colours. For instance, the HR Commission and Police Commission on a number of occasions have shown that they are really independent and stood by people through their action.” and “The leadership in COPE has been given to Opposition with 10 Opposition members as against 7 Government party members.” Jehan Perera says the following on the positive issues “Due to the 19th Amendment's restriction of the power of the Executive, and the setting up of independent commissions to overlook key state institutions, the abuse of power is less, and with it the polarisation in society is less.” A.C. Visvalingam says “There is no question in my mind that the election of President Sirisena, the abandonment of the monstrous provisions of the 18th Amendment, and the passing of a few important articles that constitute the 19th Amendment have given us a goodly quantum of freedom from the fear of terrible reprisals.”

Regarding negative issues of the 19th Amendment, W.A Wijewardena says “The size of the Cabinet has swelled beyond imagination raising costs for the citizens.” A common criticism of this amendment I’ve heard is the issue of the Constitutional Council. Dr. A.C. Visvalingam says “Probably the worst feature of 19A is the composition of the Constitutional Council, which is packed with strong politicians and weak civilians.” Elmore Perera’s thoughts on this issue is “Rather than restoring the independence of the several nominally independent commissions, the stranglehold of the politicians was strengthened by increasing the number of Parliamentarians in the Constitutional Council from 3 to 7, whilst reducing the Civil Society representation from 7 to 3.” It seems that there is a risk of the 7 MPs on the Constitutional Council making politically motivated decisions which could lead to political appointments that are unsuitable.

On the amendment’s impact to the citizens of Sri Lanka, Dhananath Fernando says the “actual impact for the citizens is zero. The priority of the people was not this. It is true the 19th Amendment was a promise under 100 day programme and many more yet the impact is zero for a citizen. It does not mean 19th is a bad move. The real impact could have been made by making the independent commissions more dynamic.” Savithri Rodrigo’s thoughts on the citizen's impact are “the regular citizen is yet to understand, realise and acknowledge the cascading impact the 19th Amendment will have on the country's citizenry, eventually.”

It’s worth noting that the full effects of an amendment like this takes time. Dhananath Fernando says “It was a wise move undoubtably with a long term thinking. The benefits of such amendments cannot be seen over night. But dilution of Executive Powers and establishment of independent commissions are strengthening the individual freedom and it is an assurance for some extent that the rule and law is equal for everyone.” Savithri Rodrigo echoes a similar sentiment saying “One year on is yet too early for any tangible ramifications to permeate to the people, although the very fact that the 19th Amendment was passed with an overwhelming majority in Parliament was surely a relief and a sure sign that the Members of Parliament themselves had had enough of the misuse of power, which lay primarily in the Executive Presidency.” Dr. A.C. Visvalingam says “On the whole, there seems to be an improvement, but we shall have to wait for one or two more years to make a reliable judgment.”

I will give my thoughts on one of the issues discussed so far. Regarding W.A Wijewardena’s comment on the swelling of the Cabinet, I think that this is one of the problems of the 19th Amendment. The 19th Amendment did limit the size of the Cabinet Ministers to 30 and Deputy & State Ministers to 40, but included a clause allowing a larger number of Ministers in case a National Government is formed, which this Government used due to forming one. It’s possible that more Ministers might be needed for a National Government, but I do think there are definitely too many Ministers. It seems to me that this reflects a common weakness among successive Sri Lankan Governments of their wish to have more Ministers than necessary. The 19th Amendment intended to restrict the number of Ministers, but ended up being used to accommodate a larger number of Ministers which is doing the opposite of what it set out to do.

There is one issue that hasn’t been mentioned so far which is the 19th Amendment’s impact on the Right to Information Bill. The 19th Amendment acknowledged the Right to Information as a fundamental right in the constitution, and thus the Right to Information Bill was passed recently in June 2016.

So, we had a variety of views on this subject from people born in a diverse range of decades spanning the 1930s to the 1980s. A special thank you to W.A Wijewardena, Jehan Perera, A.C. Visvalingam, Elmore Perera, Dhananath Fernando, Savithri Rodrigo and to Nishan de Mel & Gehan Gunatilleke who were authors of the Verité Research paper for their contributions. It can be seen that the Prime Minister’s influence has been increased, but it seems to me that it was done without making significant changes to the roles of both the President and the Prime Minister. The 19th Amendment wasn’t the bill it was originally intended to be which included the plan to abolish the Executive Presidency. Admittedly, it has some weaknesses, but even with them this was a significant moment in Sri Lankan Politics as it not only reversed the damage done by the 18th Amendment, but further reduced Presidential Powers. It is a noteworthy achievement as it was the President himself who was campaigning for this bill to be passed.