Full revival of the 19th Amendment is on the cards

After the flight of President Gotabaya Rajapaksa from Sri Lanka, and given the possibility of parliament’s electing Ranil Wickremesinghe as the Lankan President, chances of the 19 th. Constitutional Amendment (19A) being restored have brightened.

The 19(A), which was enacted in 2015 but repealed in 2020, had enhanced the powers of parliament and pruned the powers of the Executive President. But the 20 th. Amendment (20A), which replaced it, brought back the powers of the President with a bang. However, now, the scenario has completely changed. With the ignominious exit of Gotabaya Rajapaksa, there is no one to fight for the retention of the draconian powers of the Executive Presidency. Acting President Wickremesinghe is a strong votary of parliament’s supremacy over the Presidency. In fact, he was the originator and author of the 19 (A) when it was mooted and passed.

In his address to parliament on July 15, as Acting President, Wickremesinghe spoke about his plan to re-enact the 19 (A). He said: “The people of the country expect a change in the political system. An important factor for this change is the full implementation of the 19th Amendment to the Constitution. Therefore, I have started a program to bring forth the necessary drafts to Parliament to fully re-implement the 19th Amendment.”

Earlier, on May 29, he had highlighted the flaws in parliament’s functioning to make a case for the return of the 19A. He said: “The functioning of parliament has been paralyzed due to the weakening of parliamentary powers by the 20th Amendment. The Executive has been given more powers. The main allegation today is that parliament has not acted to prevent the economic crisis.  There is an allegation that even though the ruling party had a majority in parliament they neglected the work of parliament. Everything was systematically controlled by the Cabinet Ministers.”

“We need to change the structure of parliament and create a new system by combining the existing system of parliament or the Westminster system and the system of State Councils. Parliament can participate in governing the country. First of all, the existing laws need to be strengthened in order to give those powers to parliament in the exercise of monetary powers. At present, there are three Committees on government finance. The three Committees are the Public Finance Committee, the Accounts Committee and the Committee on Public Enterprises. The Leader of the House, Dinesh Gunawardena, has made several proposals to strengthen the powers of these three Committees.”

Wickremesinghe then went on to suggest that “subject experts”, the youth, including the agitating youth of the ‘Gota Go Gama’ movement, should also be included in the 15 planned committees.

Draft 22(A)

Subsequently, a draft designated as the 22 nd. Amendment (22A), prepared jointly by President Gotabaya Rajapaksa, Prime Minister Wickremesinghe and Justice Minister Wijedasa Rajapakshe, was gazetted. When passed it was to be entered into the constitution as the 21(A). But the political turmoil which followed prevented the government from taking further steps in this regard.

Under the changed circumstances, the draft will undergo changes. And more drafts will be called for, as Wickremesinghe hinted on July 15.

The Executive Presidential system, with a powerful President, cannot be changed without a referendum, as the Supreme Court has ruled. But there is no difference of opinion on the need to curtail the powers of the Executive President and increase those of parliament. Even though he is the Acting President, Wickremesinghe is keen on establishing a diluted Presidency. Therefore, a revival of 19A as 21 (A) is a distinct possibility.

The gazetted draft titled 22 (A) would give some idea of what the new 19 (A) will look like.

Draft 22 (A)

As per draft 22(A) an independent Constitutional Council (CC) will replace the Parliamentary Council of the 20 (A). The CC’s nominations will be necessary for high offices such as the Attorney General, the Governor of the Central Bank, the Auditor General, the Ombudsman, and the Secretary General of parliament. The CC will appoint the Chairmen and members of the various Independent Commissions (ICs) which would make key appointments and oversee the work of sectors assigned to each.

The Independent Commissions are the Elections Commission, Public Service Commission, Police Commission, Judicial Commission, Finance Commission, Bribery and Corruption Commission, Delimitation Commission, Human Rights Commission, Audit Service Commission and  National Procurement Commission.

The CC comprises the parliament Speaker (who will be its chairperson), the Prime Minister, the  Leader of the Opposition, one Member of Parliament (MP) appointed by the President, 5 MPs, comprising one ruling party MP, one MP from the party of the Leader of the Opposition, three non-MPs appointed by the Speaker in consultation with the Prime Minister and the Leader of the Opposition and approved by a majority of MPs in parliament, and one MP from a party other than the one represented by the Prime Minister and the Leader of the Opposition.

However, in the proposed 21(A) – the revived 19 (A) – the Speaker’s power to appoint three non-MPs will be handed over to the Prime Minister and the Leader of the Opposition.

The 22 (A) draft says that all appointments should reflect the pluralistic character of Sri Lankan society. And the non-MPs should be persons of repute and integrity. CC members will serve for three years. Vacancies will have to be filled in 14 days. The draft 22A enjoins the President to make the appointments suggested by the CC within 14 days of receiving recommendations from the CC. If he fails to do that, the appointments will be deemed to have been made as recommended by the CC.

President’s Powers  

The draft says that the President will take his decisions on appointments to the Council of Ministers and the distribution of portfolios among the Ministers “on the advice of the Prime Minister” and not in “consultation with the Prime Minister, where he considers such consultation is necessary,” as in the case under 20 (A). The President shall be entitled to hold the Defense portfolio. In the case of the absence or exit of a minister, the President can take over that ministry, but only for 14 days.

However, draft 22 (A) has one overriding provision as regards the President’s powers: He is authorised to retain most of the powers bestowed on him by 20 (A) for the duration of the current (the ninth) parliament. This was done to placate President Gotabaya Rajapaksa, to win them over to the side of constitutional reform. But now that he is no longer President, such a provision would have to basis and is likely to be discarded.

Prime Minister’s Term of Office

The draft 22A says that the Prime Minister shall stay in office throughout the period the cabinet is in office unless he resigns or ceases to be a Member of Parliament. The President’s power to sack the Prime Minister which exists under 20 (A) will go. Secretaries to the ministries would also not be required to quit upon the dissolution of the cabinet.