Most people have forgotten that there is no power higher than the people’s sovereignty. With the 19th Amendment, the checks and balances between the Executive, Legislative and Judiciary had been disregarded, said President of the National Alliance for Lawyers Associations and the former Director of the National Livestock Development Board and the Industrial Technology Institute R. Manoj Gamage (Attorney-at-Law), in an interview with the Daily News.
“As a result, even the Speaker is acting as he has supreme powers, more than the President. Hence, there is a requirement to amend all clauses related to the Executive and Legislative powers that had created a conflict under the 19th Amendment,” he said.
Here are some excerpts from the interview:
Q: Why was the 19th Amendment introduced?
 R. Manoj Gamage |
A – The 19th Amendment is not a necessity of the people. It was a necessity of foreign countries, NGOs and the Tamil Diaspora. The Amendment was proposed to the government of former Prime Minister Ranil Wickremesinghe and his supporters as a way of controlling the country, hiding behind the Presidential powers of President Maithripala Sirisena who was elected by the votes of sixty two hundred thousand people.
Indeed, the need for the abolition of the Executive Powers of the President was not in the 19th Amendment. By bringing in the 19th Amendment, the former Prime Minister’s purpose was to use President Sirisena according to his requirements and manipulate the country.
Also, the 19th Amendment was virtually aimed at the Rajapaksa family and abolishing the right of former President Mahinda Rajapaksa, his sons and brothers to compete in a Presidential election. This was another hidden agenda. Because of this personal agenda, and intention to protect its political power, the 19th Amendment to the Constitution became impractical and incomplete.
Q: How was the 19th Amendment drafted?
A - Foreign countries and Non-Governmental Organizations were behind drafting the 19th Amendment. Those who contributed to the Constitutional Amendment had a personal agenda and were not interested in the welfare of the country. Therefore, they were unable to carry out this task in a proper manner.
Twelve parties submitted petitions against the 19th Amendment Bill. Fortunately, when the 19th Amendment to the Constitution was forwarded for the consideration of the Supreme Court - as it was brought to the notice that certain clauses restricted the powers of the President in violation of the Constitution – it was demanded that it be referred to a referendum.
But these Constitutional lawmakers did not go for a referendum to amend those clauses in accordance to the Supreme Court ruling. Therefore, the 19th amendment to the Constitution remained an incomplete mess.
Q:What are the powers of the Executive President which had been removed and limited by the 19th Amendment?
A – Clause 33 on “Duties, powers, and functions of the President” from the initial Constitution of 1978 was completely removed and replaced.
According to Article 33 (2) (c) and Article 62 (2) of the 19th Amendment, the power to summon, prorogue and dissolve Parliament was given to the President. But there were no specific limitations given on how to use these powers.
Due to these reasons, a conflict was created between Articles 33 (2) (c), Article 62 (2) and Article 70 (1). If a referendum was held during the time of the amendment to clarify the limitations of the powers of the President, the current crises may not have arisen. However, the Supreme Court will give a clear judgement in this regard, on December 7.
According to the Constitution of 1978, Article 35 (1), there was no provision to file a case under Fundamental Rights against the President. But according to the 19th Amendment, Article 35 (1) of the Constitution was amended that under Article 126, it enables to file a Fundamental Rights case against the President, subject that the case is filed against the Attorney General. I think it is a good approach.
Q: What are the parts that need approval with a referendum?
A – According to the Supreme Court decision on the Bill on the 19th Amendment to the Constitution, in terms of the provisions of Article 83 of the Constitution, paragraphs 42(3), 43(1), 43(3), 44(2), 44(3) and 44(5) in clause 11 and paragraph 104B (5) (c) in clause 26 require the approval of the people at a referendum.
Q: How can the 19th Amendment be abolished?
A - The answer is simple. The 19th Amendment was passed by a two-thirds majority in Parliament. No referendum was held for that. So it is easy to repeal any of the provisions of the 19th Amendment by obtaining a two-thirds majority in Parliament.
Q: What type of Amendments can be proposed to further strengthen the powers of the Executive President?
A – According to my observation, removing Article 85 (2) related to the referendums from the Constitution is the most inappropriate decision made by the constitutionalists. By this amendment, the right of the people in the involvement in the Constitutional crisis had been completely neglected. My opinion is that Article 85(2) should be included again to the Constitution.
Most people have forgotten that there is no power higher than the people’s sovereignty. With the 19th Amendment, the checks and balances between the Executive, Legislative and Judiciary had been disregarded. As a result, even the Speaker is acting as he has supreme powers, more than the President. Hence, there is a requirement to amend all clauses related to the Executive and Legislative powers that had created a conflict under the 19th Amendment.
We have witnessed the disaster that was made by the government of the former Prime Minister during the past three and a half years. They have destroyed the economy of the country completely and made decisions risking national security. National resources were sold and used according to their own will. They used the country’s law to take political revenge. If such a government rules the nation for five years, we cannot think even where it would end up. In such situations, the President should have a clear provision and powers to dissolve Parliament.
Q: Many are of the view that according to the 19th Amendment, the President has only ceremonial powers. What is your view?
A – That is a completely wrong interpretation. According to the Constitution 4(b) the executive power of the people is given to the President. No one can take over it. Also, the Chief of the Police and three forces is the President. The head of Parliament is also the President. Even though constitutionalists who drafted the 19th Amendment intended to limit the powers of the President only for ceremonial aspects, they failed to do so. Still, the power to appoint the Prime Minister and Cabinet lies only with the President. The Speaker or any other person cannot make a decision on the above appointments.
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