Legal lacuna, thy name is 19th Amendment | Daily News


 

Legal lacuna, thy name is 19th Amendment

The 19th Amendment to the 1978 Constitution was adopted on April 28, 2015 and it was hailed as a key policy achievements of President Maithripala Sirisena as he took pains to ensure its passing in the Parliament with 212 ‘Aye’s and only a single member opposing it.

Three and a half years later, the President, the Parliament as well as the entire nation is in utter confusion due to imprecise clauses in the 19th Amendment with regard to certain powers vested with the Executive President.

Recent exercise of powers by President Sirisena to remove Prime Minister Ranil Wickremesinghe, appoint Mahinda Rajapaksa as Prime Minister and finally issue a Gazette Notification to dissolve the Parliament has resulted in much confusion as there is an uncertainty as to what is actually in the 19th Amendment in relation with the relevant clauses of the Constitution.

While trying to interpret the Constitutional validity of recent political developments, one has to understand that the removal of Prime Minister and appointment of a new Prime Minister and the subsequent dissolution of Parliament constitute in law two separate and distinct issues. Thus far, there has been no legal challenge in the Supreme Court on the appointment of a new Prime Minister and pronouncements from the leadership of the Unite National Party (UNP) is that they intend resolving it in Parliament. Although a writ application has been filed in the Court of Appeal, only the Supreme Court has the power to interpret the Constitutional clauses.

Executive Presidential system

The UNP and its allies in several Fundamental Rights Applications have challenged the constitutionality of the dissolution of Parliament and the Supreme Court on November 13, 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 December 7, 2018. The hearing will take place in the first week of December and the verdict is expected on December 7 or in the following week.

The Republican Constitution of vested sovereignty in the people and introduced an Executive Presidential system of government which was superimposed on a parliamentary system.

President Sirisena, introduced the 19th Amendment to curtail some of his Executive Powers and devolve them to Parliament in order to fulfill his promise during the election campaign. Apart from reducing the number of years in a Presidential term from six to five, a clause was added to prevent the President from dissolving the Parliament until the completion of four and a half years of the Parliament’s term of five years. However the 19th Amendment failed to refer to the Presidential powers in different sections in the 1978 Constitution, thus creating many a lacuna.

On an earlier interpretation of the draft of 19th Amendment, the Supreme Court made it clear that the President was the ultimate repository for the executive power of people, and any amendments changing this structure would render the amendment inconsistent with articles 3 and 4 of the Constitution. If the amendment had replaced the prior office of President with a new office, this would have to be noted by the Supreme Court, who would have to declare the amendment inconsistent with articles 3 and 4.

Similarly, the 19th Amendment changed the powers of the office of the President, rather than creating a new office. As several constitutional experts pointed out in addition to the reduction of the duration of the presidential term certain other powers were vested with the Constitution Council and other Commissions.

Appointment of superior Court Judges was earlier vested with the President and the Supreme Court determined that the President’s powers were not unfettered and there should be cooperation between the Executive and the Judiciary in order to fulfill the objects of the Constitution.

The power to dissolve Parliament is currently challenged in the Supreme Court and a verdict is expected early next month. The power of dissolution of Parliament which Kumaratunga exercised in 2004 was however never challenged.

On January 9, 2015 President Sirisena decided to remove D.M. Jayaratne the existing PM in order to appoint Ranil Wickremesinghe. It was a manifestation of the unfettered power of the President to appoint and remove Prime Minister and Cabinet.

The 19th Amendment sought to reset the constitutional relationship between the President and Prime Minister and essentially vest some of the powers of the President in the PM and also curtail the powers of the President as regards the dissolution of Parliament. Although the first draft 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 the Supreme Court clarified that such fundamental amendments require a two/third majority in Parliament and approval at a National referendum.

Supreme Court determination

The draft bill proposed a fresh Article 33(3)(c) on powers that empowered the President to summon, prorogue and dissolve Parliament. The constitutionality of this Bill was challenged before the Supreme Court. 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.

After the Supreme Court determination, the 19th Amendment was diluted what was in fact ultimately enacted 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.

The hurriedly drafted 19th Amendment contains many ambiguities and anomalies. 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. The incompetent drafting in the 19th Amendment resulted in many lacunas and loopholes and it will be a tough task for the Supreme Court to interpret some of the clauses that are contradictory to some others.

Whatever the verdict of the Supreme Court on dissolution of Parliament, the authorities, either this Parliament or the next one to be elected, must seriously consider effective measures to rectify the glaring anomalies in 19th Amendment by carefully drafting a new Amendment to the Constitution.

 


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