‘A constitution, is anything more than a formal sense, is only an organisation of men and women. Its character depends upon the character of the people engaged in governing and being governed. In this respect it is a transient thing, changing like the colours of the kaleidoscope; and an examination of its working involves an examination of the social and political forces which make for changes in the ideas and desires and habits of the population and its various social strata. ………….For though the constitution consists of men and not of laws, the complexity of political organisation demands that if is to function at all it must function according to rule’. (W. Ivor Jennings -The Law and the Constitution)
In this sense the new rule, the 19th Amendment, the piece of legislation brought forward by the present government to diffuse the wide powers enjoyed by the Executive President under the present (1978-J. R. Jayewardene Constitution) constitution can be regarded as a revolutionary step of the legislators who master minded this change into the blood vessels of the ‘out-dated’ constitution.
Executive presidency
Here, I would like to include the precise analysis and the sound judgement arrived by the illustrious diplomat and author T.D.S.A. Dissanayake on the 1978 Constitution. ‘In my judgement that constitution was not so much geared to give Sri Lanka a sound government but geared to give legal authority to Prime Minister J.R. Jayewardene to be a benevolent dictator as President of Sri Lanka…………….’ By that time I was ambassador-designate of Sri Lanka to Indonesia. Before I assumed office in Jakarta, I was invited to Washington for a seminar on the General Elections of 1977 in India, Pakistan and Sri Lanka. I made it a point to visit Harvard University, where I had studied, to get their opinion on the draft constitution. They were horrified and predicted that with such a Constitution, Sri Lanka will end up like the Philippines under President Marcos’. (The Politics of Sri Lanka (Volume 111) by T.D.S.A. Dissanayaka) Therefore, changing the dictatorial powers vested in the all powerful executive presidency is not an easy task and we should appreciate the legislators involved in the present parliament who have done a marvelous job and an uphill task to make this change a reality as far as they can, although the abolition of the whole constitution is on the way.
The following are the main changes that have been adopted under the 19th Amendment.
(a) It has reduced the term of office of the President to 05 years, instead of 06 years which was the rule under the 18th Amendment;
(b) A person who has been elected by the political electorate, as President of the Republic can serve only 02 terms and not 03 terms as stipulated by the 18th Amendment;
(c) President’s authority to dissolve parliament is also curtailed. Under the provisions provided in the 19th Amendment, President is empowered to dissolve parliament only after a lapse 04 ½ years and NOT before that;
(d) The establishment of the Constitutional Council has also taken away the enormous powers the President was entitled to under the provisions of the 18th Amendment to appoint members to the independent commissions. The constitutional council, established under the 19th Amendment shall consist of 10 members. The Speaker, the Prime Minister and the leader of the opposition are its ex-officio members; four additional members of parliament will be nominated to serve on it. Out of the four members, three members will be selected by the President, the Prime Minister and the leader of the opposition respectively. Minority parties in the house are also entitled to appoint a member to the constitutional council. The remaining 03 slots, will be selected by the High Post Committee of the Parliament, giving preference to professional experts in different fields. The 19th Amendment has empowered the constitutional council to nominate members to the Police Commission, Bribery Commission, Human Rights Commission, University Grants Commission and Public Service Commission;
(e) Number of Ministers who can be appointed to the cabinet is limited to 30. The total number of deputy and state ministers is restricted to 40;
(f) In consultation with the Constitutional Council, the President is empowered to appoint judges to the Supreme Court in Sri Lanka;
(g) Under this new enactment, citizens who have dual citizenships are prohibited to get elected as members of parliament;
(h) The 19th Amendment has also imposed a restriction on bringing forward ‘urgent’ bills in the parliament. The bills are allowed to be presented in keeping with the regular procedures and not otherwise;
(i) The President is entitled to appointment a member of parliament, as Prime Minister who can command the majority support of the house;
Regarding the significance of the 19th Amendment, I would like to insert here the considered opinion of Dr. Nihal Jayawickrema who is regarded as an authority on constitutional law. He is of the view, that the office of President today is not that which was established by President J.R. Jayewardene in 1978. Nor are the powers of that office the same or similar. The 19th Amendment (19-A) stripped the Presidency of nearly all the executive powers which President Jayewardene invested himself with. The President today is in many respects, a constitutional Head of State who is required to act on the advice of the Prime Minister, similar to the Presidency under the 1972 constitution.
Independence of the judiciary
Defending the considered objectives of the 19th Amendment, the Supreme Court, the highest in the judicial hierarchy that serves as a constitutional court has acted boldly and independently, highlighting the independence of the judiciary. On November 13, 2018 a three-member bench of the Supreme Court, issued a stay order on the dissolution of Parliament. After the proclamation of the stay-order, an extended seven-member bench of the Supreme Court led by Chief Justice Nalin Perera unanimously ruled that President Sirisena’s proclamation dissolving Parliament was unconstitutional. Further, Justice Sisira de Abrew in a four-page judgement with reference to a petition from the Tamil National Alliance declared ‘For the above reasons, I hold that the Proclamation issued by the President of the Republic ………..published in the Government Gazette ……………..dissolving Parliament has violated fundamental rights of the Petitioner guaranteed by Article 12(1) of the constitution. I have earlier held that the Proclamation issued by the President of the Republic…………..published……….dissolving Parliament, is contrary to Article 70(1) and 70(3) of the Constitution: is therefore null and void ab initio, and of no force and effect in law. For the above-mentioned reasons, I made order quashing the proclamation issued by the President of the Republic………….published in Government Gazette …………dissolving Parliament and declaring the said Proclamation null and void ab initio and of no force and effect in law’.
There are some lunatics among us who defend the 1978 Constitution, declaring that it has helped us in defeating the LTTE. This is an argument mainly used by the communal elements in the country to achieve their own selfish ends. There is absolutely no truth in these arguments, when you analyze the ugly events of July (Black July) 1983 and the mass massacres that took place all over the island in 1988-89. Enormous arbitrary powers, vested in the 1978 Constitution were unleashed through-out the ‘Dharmadeepaya’ to commit these atrocities.
Therefore, what is necessary today is to abolish the Executive Presidency in toto and go for a home-grown, brand new constitution in keeping with the modern trends in the world. Of course, it should be a unitary constitution.
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