Presidentialism in Sri Lanka and the 19th Amendment – Some reflections

The Bill introducing the 19th Amendment was consequent upon the election of President Sirisena in January 2015 and his appointment of Wickremesinghe as PM

President Sirisena on 26 October dismissed Ranil Wickremesinghe as Prime Minister (PM) and his Cabinet1 and appointed Mahinda Rajapaksa as PM2. Thereafter the President dissolved Parliament on 9 November 20183 and fixed a date for a General Election after initially proroguing Parliament and summoning it to meet on 16 November4 which was subsequently advanced to 14 November 20185.

The appointment of a new PM and the subsequent dissolution of Parliament constitute in law two separate and distinct issues. Thus far, there has been no legal challenge on the appointment of a new PM and pronouncements from the leadership of the UNP is that they intend resolving it in Parliament.

However, the UNP and its allies in several Fundamental Rights Applications have challenged the constitutionality of the dissolution of Parliament and the Supreme Court on 13 November 2018 granted Leave to Proceed and interim relief staying the operation of the dissolution and restraining the Elections Commission from acting in terms of that Gazette operative until 7 December 2018.

Presidential powers prior to the 19th Amendment

The 2nd Republican Constitution 1978 although like the preceding 1st Republican Constitution 1972 vested sovereignty in the people nevertheless was a radical departure. Whilst it reintroduced the concept of a Separation of Powers, it also introduced an Executive Presidential system of government which was superimposed on a parliamentary system. 

The pre-eminent position of the Executive President in this hybrid system was constructed on the following bases: 

Being directly elected the President was immune from the vagaries of the change of parliamentary majorities. In effect cohabitation between a President and a Prime Minister/ Cabinet from different parties became a reality;

The President was Head of State and the Executive and Government and Commander in Chief of the armed forces; 

A sweeping legal immunity Article 35 was introduced except in relation to any portfolio the President assigned to himself; proceedings in the Supreme Court on the President seeking an Opinion from that Court and a challenge to a presidential election;

The power to appoint and remove the Prime Minister and the Cabinet or other Ministers (Articles 43(3) read with 44, 45, 46 and 47);

Appointment of Judges to the Supreme Court and Court of Appeal;

Empowered from time to time to summon, prorogue and dissolve Parliament subject to the limitations of Article 70(1) of the Constitution. 

The apparent unlimited powers of the President were circumscribed by praxis. Cohabitation did in fact take place between President Wijetunga and Prime Minister C.B. Kumaratunga consequent upon the general election of 1994. Thereafter it took place between President Kumaratunga and PM Wickremesinghe between 2001 and 2004 until she removed certain Ministers and subsequently dissolved Parliament in February 20046. 

As regards the power to appoint superior Court Judges the Supreme Court determined that the President’s powers were not unfettered that there should be cooperation between the Executive and the Judiciary in order to fulfil the objects of the Constitution which in practice required consultation with the Chief Justice7. The power of dissolution of Parliament which Kumaratunga exercised was however never challenged rendering it axiomatic that such a power was immune from review. 

Dissatisfaction with the over-concentration of powers and minimal accountability of the President led to the 17th Amendment (2001) which established the Constitutional Council which in effect restricted the presidential powers of appointment in relation to a number of Commissions and the superior Judiciary and other posts. This was however negated by the subsequent 18th Amendment (2010) which also removed the original two term restriction on a President’s term of office. 

19th Amendment to the Constitution 

The Bill introducing the 19th Amendment was consequent upon the election of President Sirisena in January 2015 and his appointment of Wickremesinghe as PM despite the latter leading a minority in Parliament. The supersession by the President of D.M. Jayaratne the existing PM in order to appoint Wickremesinghe was a manifestation of the unfettered power of appointment and removal of a PM and Cabinet. 

This Bill sought to reset the constitutional relationship between the President and PM and essentially vest the President’s powers in the PM and also curtail the powers of the President as regards the dissolution of Parliament. The immunity conferred on the President was also restricted and a challenge by way of a Fundamental Rights Application against an official act was rendered permissible. 

As such the Bill sought to make the PM as “Head of the Cabinet” and empower him to determine in lieu of the President, who instead had to act on the advice of the PM, the composition and appointment of the Cabinet and other Ministers and even changes thereto. It also provided for a limitation on the total number of Cabinet Ministers except where there was “a Government of national unity”. The two term restriction on holding the office of President was reintroduced. It also sought to empower the Speaker to act for the President in the event the latter was unable to discharge the functions of his office8.

As regards the removal of the PM the Bill sought to delete Article 47 which empowered the President to appoint and remove the PM/ Ministers. Nevertheless no specific Article was introduced as to the tenure of office and when the PM ceased to hold office which existed hitherto although several Articles referred to his “removal from office”.

As regards the dissolution of Parliament a fresh Article 33(3)(c) was proposed which empowered the President to summon, prorogue and dissolve Parliament. Nevertheless an amended Article 70prevented the President from dissolving Parliament for 4½ years from the date of its first meeting unless Parliament by Resolution passed by a 2/3 majority requested the President to do so. 

The constitutionality of this Bill was challenged before the Supreme Court in accordance with the procedure of pre-legislative scrutiny of the constitutionality of Bills first introduced in 1972. This modality was to explicitly remove the power of the Supreme Court to strike down enacted legislation which was recognised by judicial determination in the Independence Constitution from 1947 to 1972 albeit there being no specific power to do so9. 

In its Determination on the 19th Amendment the Supreme Court held that the transfer of power from the President to the PM including inter alia the PM being Head of the Cabinet and the President acting on the advice of the PM as regards appointment of the Cabinet was unconstitutional and required both a two-thirds majority in Parliament and a referendum. Curiously no argument appeared to have been addressed and hence there was no pronouncement on the changes to the presidential power of dissolution of Parliament10.   

What ensued was that Parliament debated the 19th Amendment Bill in light of the Supreme Courtdetermination11. The minority Government of Wickremesinghe did not want a referendum and resultantly amendments were required to the Bill for compliance with the Court determination. 

Thus what was in fact ultimately enacted as the 19th Amendment was ambiguous as regards the powers and authority of the President and the PM/ Cabinet as regards appointment and dismissal. The reference to the PM being Head of the Cabinet was deleted and the transfer of power to the PM to determine the composition of the Cabinet which was to be appointed by the President on his advice was deleted. 

Instead what was in fact enacted was whilst the President determined the number of Cabinet Ministers and their assignment of subjects in consultation with the PM “where he considers such consultation necessary”, the President had no discretion on whom to actually appoint but was required to appoint Members of Parliament (MP) to the Ministries on the advice of the PM. Paradoxically the President could change the assignment of subjects and functions and composition of the Cabinet without any consultation with the PM12. 

Thus whilst the President’s Executive powers in this regard remained subject to some curtailment the anomalous position of the removal of the PM remained unresolved in the 19th Amendment. Article 46(2) provided that the PM shall continue to hold Office throughout the period when the Cabinet continues to function unless he resigns or ceases to be an MP. However, inconsistently Articles 47(2) and 48(1) contemplated the “removal from office” of the PM. The clarity that had originally existed was lost. 

Moreover, the limitation on the President’s power to dissolve Parliament when a Resolution for the impeachment of the President has been entertained by the Speaker under Article 38(2) was also removed. The poor drafting in the 19th Amendment in certain important areas has led to one political commentator observing that its draftsman was incompetent and that it had more holes than Swiss cheese13.

This ambiguity is in fact what the President’s advisors relied on in removing Wickremesinghe and appointing Rajapaksa as PM. They coupled it with Article 46(4) which contemplated a “National Government”. Thus according to this line of argument no sooner the UPFA as junior partner quit the National Government coalition with Wickremesinghe on 26 October that triggered a constitutional chain reaction which enabled the President to change the PM and Cabinet. 

The President himself in his address to the nation on 28 October 2018 had a litany of complaints as to why he could not work with Wickremesinghe including sharp policy and personality differences. There was a blanket denial that he had violated the Constitution although there was no reference to specific provisions of the Constitution in support of his action. 

At a public rally held on 5 November 2018 at which the new PM was present the President declared that his new Government enjoyed a parliamentary majority. But, he subsequently dissolved Parliament on 9 November.

The power of the President to dissolve Parliament has in the author’s view greater constitutional clarity. With the enactment of the 19th Amendment the general power of the President to summon, prorogue and dissolve Parliament in terms of Article 33(3)(c) must be read in conjunction with Article 70(1) which as aforesaid prevented the President from dissolving Parliament for 4½ years from the date of its first meeting unless Parliament by Resolution passed by a 2/3 majority requested the President to do so. The President’s power in this regard was thus not absolute.

Significantly when the proposed amendment to Article 70 was debated in Parliament the opposition inadvertently failed to move an amendment. Subsequently Dinesh Gunawardena MP speaking for the opposition stated that they were opposed to an extension restricting the President’s powers of dissolution for four years given that originally it was only one. He presciently pointed out that there could be economic turmoil or a crisis in Parliament so that the President must be empowered to dissolve Parliament earlier14.

There is precedent for this in the Commonwealth. Article 58(2)(b) of the Pakistan Constitution (1973)empowers the Non-Executive President in his discretion to dissolve the National Assembly where in his opinion a situation has arisen in which Government cannot be carried on in accordance with the provisions of the Constitution and an appeal to the Electorate is necessary. This Article is independent of the President having to act on the advice of the PM where he recommends dissolution. Under Article 58(3) when he so dissolves he must within fifteen days refer the matter to the Supreme Court. 

Clearly in Sri Lanka there was no Resolution forwarded by Parliament to the President requesting its dissolution and prima facie there was a serious constitutional issue to be looked at by the Supreme Court. Resultantly the issuance of interim relief was also justified. However the reported position of the Attorney General where he submitted that the Supreme Court lacked jurisdiction is simply baffling. Clearly the hitherto wide immunity conferred on the President was circumscribed by the 19th Amendment and the Supreme Court vested with jurisdiction in this regard.  

The aftermath of events in Parliament has however been extremely disturbing due to the disorder and violence. With the interim relief granted by the Supreme Court there was no impediment to Parliament convening on 14 November 2018.

With the resumption of Parliament two No Confidence Motions (NCM) against the new PM and Cabinet were reported to have been passed with a voice vote on 14 and 16 November 2018. The Standing Order of 14 November prescribing the business of the House as being the reading out by the Secretary – General of Parliament of the Proclamations issued by the President proroguing Parliament and summoning the meeting to be followed by an adjournment. An MP from the TNA moved that Standing Orders be suspended under Clause 135 which was seconded. Immediately an MP from the JVP handed over the NCM15. 

The Government had no prior notice of this NCM and the Speaker acting on what he perceived to be the approval of the majority in Parliament suspended Standing Orders and put that NCM to a voice vote despite objection by the Government and calls for a division by name. The Speaker stated that a division by name could not be effected due to the commotion and stated that the NCM was carried by a majority and that the new Cabinet did not have a majority in the House.

A second NCM was also said to have been passed by Parliament on 16 November 2018 by voice vote despite an agreement apparently reached between the UNP and its allies with the President the previous night that the original NCM would be represented with the excision of a Clause that the appointment of the PM/ Cabinet was unconstitutional; and that due process would be followed in Parliament in deliberating on it including a division by name. This NCM was preceded by the Speaker announcing on 15 November that he does not recognise the new PM and Cabinet. 

The issue arises as to whether an important constitutional issue like a No Confidence Motion against the PM/ Cabinet can be taken up on the same day by the simple expedient of suspending Standing Orders unless there is agreement between the Government and Opposition. Standing Order 135 enables the suspension of any one or more Standing Orders on a Motion made after Notice to enable any special business to be considered or disposed of. However such a Motion unless proposed by a Cabinet Minister shall be decided by a division and shall be declared lost if less than twenty Members voted in the majority in support of the Motion. Standing Order 43 sets out how voting takes place in Parliament. Ordinarily a voice vote maybe determinative unless the decision of the question is challenged by any Member and then there has to be a vote taken by name under Standing Order 43.

The divergence between the Government and Opposition and the unrest in Parliament that ensued after the suspension of Standing Orders was proposed casts some doubt on what took place. In constitutional law and practice means are as important as ends. As such there is credence in the complaint of the new Cabinet that due process has not been followed in passing either NCM.

In Pakistan the power of the President to dissolve the National Assembly in his discretion under Article 58(2)(b) has been legally challenged on several occasions. The superior Courts of Pakistan have held that the discretionary power of the President was circumscribed and not unlimited. The Courts have examined the reasons advanced for dissolving the National Assembly. Even grounds such as the breakdown of law and order have been judicially scrutinised and it has been determined that the reasons given are too wide, general, vague and non-specific. Nevertheless the Courts in Pakistan despite declaring an impugned order of dissolution as being unconstitutional have in some decisions declined the relief of restoration of the National Assembly. Instead they have pragmatically held that “the dead cannot come to life and let the ghosts go and leave the people of Pakistan to choose their own representatives”16. However in the Nawaz Sharif Case the Supreme Court restored the dissolved National Assembly17.

Footnotes

1 Gazette Extraordinary (GE) No. 2094/43 dated 26-10-2018

2 GE No. 2094/44 dated 26-10-2018 

3 GE No. 2096/70 dated 09-11-2018

4 GE No. 2094/45 dated 27-10-2018 

5 GE No. 2095/50 dated 04-11-2018

6 The author was Legal Advisor to the then President from mid-2003till her term ended in 2005

7 Silva V. Shirani Bandaranayake (1997) 1 SLR 92

8 However this amendment was not proceeded with

9 Bribery Commissioner v. Ranasinghe (1964) 66 NLR 73 (PC) and Liyanage v. The Queen (1965) 68 NLR 265 (PC)

10 Determinations of the Supreme Court in SD/04/2015 to SD/19/2015 – Hansard of 09-04-2015

11 Hansards of 27th and 28th April 2015

12 Articles 42 to 45

13 Malinda Seneviratne “Sri Lanka’s Democracy Deficit” Daily Mirror 15-11-2018 at pg. A8

14 Hansard 28-04-2015; Cols. 945/946

15 This NCM was published as a paid advertisement in the Daily Mirror of 15-11-2018

16 Decision of the Chief Justice of the Lahore High Court in the Mohamed Sharif Case approved by the SC in PLD 1989 at 166 cited in “Constitutional Law of Pakistan” by Justice Syed Rizvi (2nd Revised Edition) – Vol I, 2005 at pg. 392

17 Muhammed Nawaz Sharif V. President of Pakistan PLD 1993 SC 639