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The 19th Amendment

The amending of Constitutions is a rare and serious activity. For

example, the Constitution of the United States of America has had
only 27 amendments for about 225 years. In Sri Lanka the 1978
Constitution has had 18 Amendments already; the 19th has been
Gazetted as a Bill. It would augur well for the countrys future if more
Sri Lankan citizens, will offer constructive ideas to further refine and
improve the 19th Amendment, and its framers would accept useful
feedback with an open mind. Peoples participation is especially
important for it is they who would either enjoy the impact of a good
Constitution or suffer the consequences of ill conceived amendments.

I am not a legal or constitutional expert; but considered it a national

duty to review the Gazetted Bill based on knowledge gained by reading
as well as learning from experiences while working in a number of
countries with different constitutional and political systems. It is the
thesis of this article that the draft 19th amendment would lead to the
creation of dual centres of power within the executive, and hence may
affect maintenance of national security in the country.

Dr. N.M. Perera who is no more with us, but who is still acknowledged as
an expert on Constitutions, commenting on the attempt made by the
Government of Mr. J.R. Jayewardene to move a second Amendment to
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the 1972 Constitution, (before finally dropping it to introduce a new

Constitution in 1978,) referred to the unhindered functioning of a
Constitution as a key criteria for its acceptance by the people. He
wrote - "An amendment to a Constitution should receive wide discussion
and deep consideration by all sections of the people..A Constitution
must evoke the unstinted loyalty of the people by its acceptability and
its capacity to respond to the needs of the people. It is not the letter
of the law of the Constitution that can earn the respect and evoke this
loyalty. Its the spirit that animates its effective functioning." He was
also of view that amendments to Constitutions should not be rushed
through as it results in inclusion of loose, imprecise and or conflicting
Articles and clauses which only benefit the legal community, as they
would be called upon to sort out the ensuing ambiguities. (Ref: N.M.
Perera: Critical Analysis of the New Constitution of the Sri Lanka
Government promulgated on 31.08.1978. Reprint of Original by
Dr.N.M.Perera Trust, Sept. 1991)

According to my understanding, the main purpose of a democratic

Constitution is to establish systems, processes and guidelines to
balance powers of the three key branches of government, namely, the
legislature, the executive, and the judiciary. The legislature creates
laws; the executive administers laws; the judiciary enforces laws. Too
much power in one branch of the government could adversely affect
peoples freedom. Although the powers of the three branches should
be delineated and mechanisms designed to keep the powers in some
kind of equilibrium, it is also vital to ensure that mechanisms are in
place to enable the three organs to also work in co-operation, if the
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business of governing or running a country is to proceed smoothly and

efficiently.

Everyone accepts that a Constitution is primarily a legal document as it

is the supreme law of the country; but very few give thought to the
fact that its contents are influenced by a countrys social, cultural, and
economic situation; fundamental political philosophy; national security
situation including external and internal threats; human rights and
freedoms enjoyed by the citizens; inclusiveness and social cohesion etc.
Amendments to Constitutions should be based on a current situation
analysis linked to a future projection, so that the amendments would
help a country to achieve a better future for its people in the long-
term, while removing weaknesses in the existing Constitution, and
strengthening positive aspects of governance.

The Constitution as the supreme law of the country should also be

neutral to needs and wants of current and potential future leaders,
current and future political power configurations, as well as overseas
lobbyists with extremist ideology. Hence when framing amendments
the Framers may not think, -OK, Person A, or the current power
configuration X, is acceptable so we will amend some constitutional
parameters for the time being and watch the developments.
Constitutions are for the long haul. The framers of amendments should
have a long-term view of the country, and have as their goals, the
promotion of good and effective governance, well being of citizens, and
national security. The short term political perspectives should be kept
out of the equation, although there could be pressure to take that line.
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Thus, it is vital to move the current public debate on the 19th

Amendment away from concepts of good and bad persons, ideal
legalistic models, and political party motivations. The debate should be
moved to a higher ground so that many people are encouraged to study
and offer ideas on issues such as the following: the effectiveness of
separation of powers; advantages and disadvantages of an executive
presidential system vis-a- vis a parliamentary (executive) system;
abolishing the executive presidency vs reducing its power, and pitfalls
to watch for, in such a venture; the constitutional experiences of
various other countries in using the two systems; reviewing national
experiences in the use of the proportional representation and
preferential system of voting; mechanism for promoting good
governance; and last but not least the Constitutional powers endowed
to the executive authority to protect national security and territorial
integrity of the country.

An analysis of the draft 19th amendment shows that it has desirable

features, such as the section on access to information commencing with
Article 14A; reducing the term of a President to two five year terms,
Articles 30(2) and 31 (2); and strengthening independent Commissions
(Articles 41B) etc. However, there are substantial gaps and conceptual
problems with regard to some of the Articles in chapters VII and
VIII. In this analysis I wish to comment on the inherent contradictions
of some articles in Chapters VII and VIII, and the possible impact
these weaknesses would exert on the national security of the country.
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A striking weakness of the draft 19th Amendment (the Bill as

published in the government Gazette) is the opening of doors for the
creation of two executive centers of power within the government. A
critical analysis of some of the Articles in the draft Bill reveal the
opportunities presented for the subtle generation of dual power-
centers leading to possible friction between the President who is the
Head of State and Head of the Executive and the Prime Minister who
is the Head of the Cabinet. The splitting of the executive authority in
the country may lead in the very extreme situations, to episodes of
paralysis in governmental decision-making, and or delay in government
decision-making. These outcomes could affect the sovereignty of the
people and their well being.

The key articles under discussion and analysis are:-

Article 30 (1) " There shall be a President of the Republic of Sri Lanka,
who is the Head of the State, Head of the Executive and of the
Government and the Commander in Chief of the Armed Forces". (The
writer has marked some clauses in bold letters to help the readers to
focus on key issues under discussion.)

Article 33A "The President shall be responsible to Parliament for the

due exercise, performance and discharge of his or her powers, duties
and functions under the Constitution and any written law, including the
law for the time being relating to public security"
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Article 42(1) "There shall be a Cabinet of Ministers charged with the

direction and control of the Government of the republic".

Article 42(3) "The Prime Minister shall be the Head of the Cabinet of
Ministers".

Articles 43 (3) "The Prime Minister may at any time change the
assignment of the subjects and functions and recommend to the
President changes in the composition of the Cabinet of Ministers".

Article 44 (5) "At the request of the Prime Minister any Minister of
the Cabinet of Ministers, may by notification published in the Gazette,
delegate to any Minister who is not a member of the Cabinet of
Ministers any power or duty conferred or imposed on him or her by any
written law"

The President although anointed as the Head of the State, the

Executive and of the Government (as per Article 30(1)) is check-mated
brilliantly by the provisions of Articles 42 to 44. The Prime Minister
(PM) according to powers vested in him or her by virtue of Article
42(3) is the Head of the Cabinet of Ministers. It is this Cabinet of
Ministers (headed by the Prime Minister,) that is charged with the
direction and control of the Government of the Republic as per Article
42(1). The PM is also given powers to change any Minister in the
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Cabinet, and also change the subjects given to Ministers as per Article
42(3). The PM can on his own request a Cabinet Minister to hand over
part of his assignment to a Member of Parliament who is not in the
Cabinet by virtue of powers vested in him by Article 44(5).

Therefore, the President appear to have no role in directing the

Cabinet of Ministers according to Articles 42 (3), 43 (3) and 44(5)
although he is designated as the Head of the Government in Article
30(1). Conversely it is mentioned that the President, has to be
responsible to the Parliament in discharge of all his duties, including
public security. But how the President is expected to achieve this or
the mechanism through which the president becomes responsible to
the Parliament is left unsaid, leading to ambiguity and guess-work. Is
the Prime Minister the medium through which the President become
responsible to the Parliament? The silence appears to be deafening.
Whatever it is, the hidden duality is fairly obvious to the critical
reader, and therefore would need to be sorted out in the interest of
effective governance.

Even with regard to the composition of the Constitutional Council (CC),

the Presidents authority to nominate members has been downgraded.
Please read Article 41A (1), clauses (a) to (f) which cover the
nomination of the CC. Out of a total of 10 members recommended to be
appointed to the CC, the President who is elected by the direct vote of
the people is authorized to nominate only one member. He does not, (in
theory as per the relevant Articles) even have the power to raise an
objection with regard to the suitability of any of the balance five non-
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ex-officio members proposed to be nominated as per Article 41 (6). On

the other hand, the Prime Minister with the Leader of the Opposition
together, can nominate five members in addition to both of them
becoming ex-officio members in the CC. That is between the Prime
Minister and the Leader of the Opposition, they can hypothetically
control 07 members of the Constitutional Council out of a total of 10
members. At every opportune stage, the draft 19th amendment seeks
to constrain the power of the President, despite the fact that the
President exercises the sovereignty of the people through direct
franchise, in all of the nine Provinces in Sri Lanka.

The draft 19th amendment either wittingly or unwittingly weakens the

executive authority of the country by creating a mechanism for dual
control of executive authority. Some of the powers (i.e. Head of
Executive and Head of Government) vested in the Office of the
President by virtue of Article 30(1) appears to be placed under
challenge by powers vested in the Office of the Prime Minister via
Articles 42(1) and 42(3). The powers vested in the office of Prime
Minister by virtue of Article 42(3) to be the Head of the Cabinet of
Ministers and by virtue of Article 42 (1) to direct and control the
Government through the Cabinet of Ministers appear to be challenged
by some phrases in Article 30 (1). This weakens the Sri Lankan State
at a time when the State of Sri Lanka needs to stay strong.

There can certainly be no reason for any person to object to the

reduction of the power of the President, if the purpose of the
exercise is to establish requisite checks and balances among the three
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main branches of the government, the executive, the legislature, and

the judiciary, without depleting executive power of the Sri Lankan
State. However, in my humble opinion, the effect of the above
amendments contained in chapters VII and VIII of the 19th
amendment Bill would lead to truncating of the powers of the
executive. Rather than attempting to balance the power between the
executive and the legislature, the practical implications of the draft
19th amendment is the depletion of the power of the executive of the
State of Sri Lanka. It is akin to the rudder of the Ship of State being
put under the control of two captains.

The result is that the executive decision-making of the State may be

deadlocked, or at the very least be delayed. In such a scenario the
biggest concern is on defense, national security and territorial
integrity of the country. For the defense of a country, executive
decision-making must be untrammeled and rapid. Any dilly-dallying on
the part of the executive, due to differences of opinion between the
two created power centers of the Prime Minister and the President,
would be detrimental. A country at all times should be prepared to
defend itself, whether there are any threat on the horizon or not.
That is what India, the USA, China, or Japan would do, as well as Nepal
or the Maldives. But in Sri Lanka, the concept of dual- executive
power is sought to be introduced, through the draft 19th amendment
at a time of transition from conflict to peace and reconciliation, and
when the concept of separatism to win rights has still not been totally
disavowed by many key stakeholders in and outside the country.
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The country is still in a stage of consolidating the peace gained in

2009, and promoting national reconciliation. The new government is
beginning to take more measured steps towards promoting greater
reconciliation. Simultaneously, a gradual increase of political
belligerence is being noticed in the northern provincial council
(NPC).This, to say the least, is unhelpful. It appears that many Sri
Lankans including fair thinking Tamil citizens are perturbed over the
politically belligerent line taken by the NPC under its Chief Minister
(CM). Some Sri Lankans do believe that these unpalatable posturing
mark the beginning of a cycle of belligerent demands for greater
devolution of power to the north. The examples that gives rise to such
perceptions are: - the genocide resolution passed by the NPC alleging
that all Sinhala governments since 1948 engaged in genocide against
the Tamils; the CMs statements made some time back to the effect
that they need to look for a more "dynamic" solution to the question of
power devolution; and also the oft-bandied statements about a `beyond
the 13th amendment solution. Even some of the so-called moderates
within the TNA have mentioned that the 13th Amendment would not be
a solution. These developments indicate that the situation is still fluid
in this regard, and the country should not put its guard down.

Mr. Neville Ladduwahetty in an insightful comparison of the Indian

Constitution with the 13th Amendment of the Sri Lankan Constitution
in an article published in the Island newspaper of 28 March, 2015,
showed how the Sri Lankan 13th Amendment gives identical power to
the Provincial Councils in Sri Lanka as the Indian Constitution does to
its State governments, although the Sri Lankan provinces are much
smaller than the Indian states. Therefore, the snowballing of
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statements on the need to go beyond the 13th Amendment, or to look

for a more dynamic solution is worrying.

In classical theory, the move to promote national reconciliation and a

move to provide greater devolution of power could be considered to be
inter-dependent and mutually supportive. However, there is tension
between the two in that any undue weight placed on increased
devolution of power could unleash centripetal forces which a small Sri
Lanka placed at fishing boat distance from Tamil Nadu would find hard
put to counter. The former statement is the so-called theory. The
latter statement is the practical and locality- specific situation given,
the geographic location of Sri Lanka. The latter situation mandates a
tight balance between the two concepts. And as Mr. Laduawahetty has
clearly shown in the above article in the Island, the Indian Constitution
has stipulated the absolute outer limits of devolution. Sri Lanka can opt
to select the degree of devolution from within the Indian model, which
is suitable for the country taking into consideration the transitional
conditions as it move from post-conflict situation to consolidating
peace and reconciliation. Mr. K. Godage, a respected foreign service
officer of Sri Lanka, in an article titled Devolution in India and Sri
Lanka published in the Island of 01 April 2015, while commending Mr.
Ladduwahetty for the comparison, informs us of possible options:
"Malaysia has almost 150,00sq.km. comprising 11 States .. In that
country police are a central function". The degree of smoothness of
developing peace and reconciliation would generally match peoples
perceptions of assurance of national security and territorial integrity.
This is one of the fundamental reasons why the Sri Lankan Constitution
should continue to endow as well as repose legally unchallengeable
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executive authority within the central government of Sri Lanka for

defense, national security, and protection of her territorial integrity.

This view by no means vitiate the central understanding of the vast

majority of Lankans that the new government should wholeheartedly
support all measures to enhance the quality of life, the livelihoods, and
the basic human rights of all Lankans, while making an extra-effort to
enable Tamil people to enjoy these needs and rights as they suffered
substantially due to the terrorist war inflicted upon the country by
LTTE. All citizens of this country want genuine grievances of the
people of the north and east resolved as stated in the Presidential
Commissions on Lessons Learned and Reconciliation Report. The
previous administration had begun a substantial amount of work in this
regard; the current administration has begun to accelerate and
enhance the process. While all this is being done the vast majority of
Lankans also believe that the country and the people should not provide
even a smallest window of opportunity for any kind of terrorism or
separatist doctrine to arise gain. Some of them also seem to be
fighting an internal battle within their conscience about the nagging
fears they have of the real (hidden) intensions of some of the northern
and eastern politicians, the western international community, the hard-
core LTTE diaspora, and of UNHCHRs stance on Sri Lanka. This should
not be dismissed as mere sloganeering. These are genuine dilemmas
confronting the majority of our people.

The Constitution of the United States of America was born due to the
strong-felt needs of citizens, some State leaders as well as the
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majority of National leaders to strengthen the power of the central

government in the aftermath of the Independence war in order to
protect the country from any threat of disintegration or break-up. The
19th amendment as currently drafted, perhaps unknowingly, is paving
the way for a weakening of the executive authority of the State of Sri
Lanka by attempting to create dual centers of executive authority. It
may be wise to take a leaf out of USAs book and re-fashion the draft
19th amendment to ensure that the executive power and authority of
the State of Sri Lanka is not divided nor diluted.

It is hoped that views such as these are also considered in finalizing

the 19th amendment.