In what was a startling and eye-opening statement President Maithripala Sirisena this week criticised the 19th Amendment to the Constitution, saying that it created political instability and suggested that it should be repealed.
The President’s sentiments were expressed at the 40th-anniversary celebrations of the National Housing Development Authority in Colombo on Sunday, in the presence of Prime Minister Ranil Wickremesinghe and Housing, Construction and Cultural Affairs Minister Sajith Premadasa.
The President emphasised the fact that the 19th Amendment created two centres of power within the government, leading to instability. “With the Presidency and Premiership pulling in different directions and without a single political leadership, it is impossible for the country to move forward. And it is harmful,” President Sirisena noted.
“People accuse us of running an unstable government. They say that the Prime Minister and I are pulling in different directions. The reason is the 19th Amendment,” the President said. He acknowledged that the 18th Amendment- which was repealed when the 19th Amendment was introduced- was “monarchical and dictatorial in nature” but argued that the 19th Amendment was destabilising.
19th Amendment
“Achieving the objectives of good governance proved futile under the 19th Amendment. If not for the 19th Amendment, the last four and half years of this government would have been more successful,” President Sirisena declared. He also called for the abolition of both the 18th and 19th Amendments to the Constitution to strengthen freedom, democracy and ensure good governance in the future.
The President’s declaration came as a surprise to many as he was instrumental in ensuring its difficult passage through Parliament which eventually endorsed it resoundingly, with 215 parliamentarians in the 225-member legislature voting for it and only a solitary parliamentarian, Sarath Weerasekera, voting against it.
When the 19th Amendment was first introduced in Parliament, dozens of changes were suggested by the Opposition. Because its passage required a two-thirds majority whereas the government headed by Prime Minister Ranil Wickremesinghe was still in a minority, it required the support of parliamentarians of the United Peoples’ Freedom Alliance (UPFA) which was led by the President.
It was well known that President Sirisena remained at his office in Parliament and toiled night and day, working around the clock to lobby and canvass his own parliamentarians. He acted as an intermediary between them and the ruling party, assisting in incorporating the changes suggested by the opposition into the 19th Amendment. He succeeded in the end which is why the 19th Amendment was endorsed with an overwhelming majority.
Parliamentarians and officials familiar with the workings of the government readily acknowledge the stellar role played by President Sirisena in ensuring that the 19th Amendment became a reality. Without his support, it wouldn’t have been enacted for the lack of a two-thirds majority. This is what makes the President’s announcement on Sunday all the more surprising.
It will also be recalled that President Maithripala Sirisena when he was campaigning against Mahinda Rajapaksa for the Presidency in late 2014 and in the first week of 2015, pledged to abolish the Executive Presidency. He declared that he would be a ‘one term’ President and would not run for office again.
The main theme of his campaign- which was supported overtly or tacitly by the United National Party (UNP), the Sri Lanka Muslim Congress (SLMC), the Janatha Vimukthi Peramuna (JVP) and the Tamil National Alliance (TNA), was the dictatorial nature of Rajapaksa’s Presidency which introduced the 18th Amendment to the Constitution.
A key feature of the 18th Amendment was the abolition of the two-term limit on an individual holding the office of President. It was this which enabled Rajapaksa to run for an unprecedented third term in 2015, having previously been elected twice in 2005 and 2010.
The two-term limit was re-introduced with the introduction of the 19th Amendment. That is a key factor in the current political scenario where the Sri Lanka Podujana Peramuna (SLPP) is having some difficulties in fielding a candidate for the upcoming presidential elections. Had the 19th Amendment not been in force, the SLPP’s candidate would have undoubtedly been Mahinda Rajapaksa. However, since he is barred from contesting, the party has been compelled to look at alternatives. Gotabaya Rajapaksa is the definite frontrunner but he is handicapped by his United States citizenship, outstanding legal issues both in that country and in Sri Lanka and most recently, by health concerns.
18th Amendment
The 18th Amendment also abolished the independent commissions governing key state sectors which were set up under the 17th Amendment to the Constitution. These commissions were restored under the 19th Amendment. They include the Elections Commission, the Public Service Commission, the National Police Commission, the Audit Service Commission, the Human Rights Commission, the Commission to Investigate Allegations of Bribery or Corruption, the Finance Commission, the Delimitation Commission, the National Procurement Commission and the University Grants Commission. The 19th Amendment also reactivated the Constitutional Council.
The 19th Amendment also has other key features which reduce the powers of the Executive Presidency, apart from restoring the two-term limit on an individual. These include the reduction of the term of office of the President from six years to five years and the restrictions imposed on the President against dissolving Parliament. Both these issues were in the limelight recently.
In January 2018, President Sirisena sought an opinion from the Supreme Court as to whether his term of office was six years or five years. It was stated that this was done because the 19th Amendment was certified into law only on May 15, 2015, and there were differences of opinion as to whether it would apply to President Sirisena as well, as he was elected prior to that, on January 8, 2015, ostensibly for a six-year term. This argument was put forward by then-Attorney General- and now Chief Justice- Jayantha Jayasuriya.
The Supreme Court however held otherwise and ruled that the President Sirisena’s term of office too fell under the ambit of the 19th Amendment and was, therefore, five years. Recently, there has been a public discussion as to whether this term of office began only in May 2015, which would enable President Sirisena to remain in office until May 2020 and there was speculation as to whether this question too would be referred to the Supreme Court but such a reference has not been made so far.
Perhaps the most noteworthy restriction imposed on the President by the 19th Amendment was not allowing the President to dissolve Parliament before the expiration of four and a half years. This was put to the test during the Constitutional crisis in October and November last year.
That was when President Sirisena sacked Prime Minister Ranil Wickremesinghe and appointed Mahinda Rajapaksa to that position. Rajapaksa was repeatedly unable to demonstrate support from a majority of parliamentarians because the TNA and the JVP stood with Wickremesinghe and the UNP. Thereafter, President Sirisena dissolved Parliament, hoping to call for a general election.
The opposition canvassed the issue in the Supreme Court, citing the 19th Amendment and its restriction on the ability of the President to dissolve Parliament. The Supreme Court upheld this argument, compelling President Sirisena to re-instate Prime Minister Wickremesinghe and his government. Many saw this as a system of checks and balances between the Executive and the Legislature which allowed neither to exceed its limits in the exercise of its powers.
Dual citizens
Yet another aspect of the 19th Amendment that has undergone scrutiny is its bar on dual citizens from running for Parliament or the Presidency. Critics have argued that the imposition of this disability within the 19th Amendment has been done with the objective of targeting specific individuals. However, it can be argued that, as demonstrated in the case of former Central Bank Governor Arjuna Mahendran who is a Singaporean citizen, there are inherent risks involved in having dual citizens in positions of power and authority.
Already the UPFA’s Geetha Kumarasinghe has been unseated for this reason. Former actress Kumarasinghe was elected to Parliament at the August 2015 general election but it was proved in court that her renunciation of citizenship in Switzerland had not been complete at the time. The verdict in Kumarasinghe’s case was upheld in the Supreme Court in November 2017.
The issue has come to the fore again as the SLPP’s frontrunner to be presidential candidate, Gotabaya Rajapaksa, has been a United States citizen. While no formal announcement has been made, it is widely believed that Rajapaksa has submitted documents to renounce his United States citizenship but it is unclear whether this process has been duly completed. Compounding the issue further is a case filed against him in the United States alleging complicity in the murder of The Sunday Leader editor Lasantha Wickrematunge.
It is therefore quite evident that the 19th Amendment has widespread ramifications that encroach on several vital aspects of the country’s political landscape. The President’s assertion that it should be repealed has elicited interesting responses, with Opposition Leader Mahinda Rajapaksa saying that he was glad that the President has realised, even after the lapse of four and a half years, that this legislation is counterproductive.
In terms of the practical implications of the 19th Amendment, however, it will remain. This is an election year and there is no possibility of the legislation being repealed in the foreseeable future. As such, although there will be much political rhetoric resulting from the President’s thoughts on the 19th Amendment, it is here to stay, at least for now.
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