The 19th Amendment, & The Dangers Ahead

By Rajiva Wijesingha

Prof. Rajiva Wijesinha MP

The Supreme Court has given an excellent ruling on the gazette draft 19thAmendment to the Constitution. But I fear there is some danger that its verdict might be subverted, and it is essential that Parliament be vigilant.

It may also be necessary to seek clarification as possible from the Court. Its intentions may be perverted, because it very properly looked essentially atthe Amendment as gazetted. There may be claims however that it also considered the amendments that were smuggled in as it were into its deliberations. But it has not ruled on these.

With regard to the text before it, it was categorical in rejecting efforts to transfer the power of the President to the Prime Minister. The clauses it has dealt with clearly were what Jayampathy Wickremaratne had claimed were included through human error. These were the changes to the Chapter on The Executive, Chapter VIII, which made the Prime Minister the head of the Cabinet of Ministers and allowed him to determine the number of Ministers and the assignment of subjects and functions.

The meeting of Party Leaders, held on March 15th, had agreed that the attempt to make the President act only on the advice of the Prime Minister (through a new 33A) be rejected. That section in the original draft was removed, and one would have assumed that the changes to Chapter VIII also would have gone. But Jayampathy described these as consequential provisions which he did not bother to check.

Maithri-Ranil-ChandrikaHe did say, in admitting the error, that they would be removed, but instead what we found was that 33A was brought back in the amendments he subsequently gave to the Supreme Court. The Supreme Court was not required to look into these, and it did not do so in its judgment, except to refer to an amendment that it thought would satisfy objections raised to one of the provisions in the gazette.

The way Ranil referred to this in his speech in Parliament made me realize however that he would try to claim that the subsequent amendments had been looked at by the Court, and had not been rejected. This would be casuistry of the highest order. After all the Court made clear its views on the authority of the President when it wrote ‘If the people have conferred such power on the President, it must be either exercised by the President directly or someone who derives authority from the President….If the inalienable sovereignty of the people which they reposed on the President is trust is exercised by any other agency or instrument who do not have any authority from the President, then such exercise would necessarily affect the sovereignty of the People. It is in this backdrop the Court in the Nineteenth Amendment Determination came to a conclusion that the transfer, relinquishment of removal of a power attributed to one organ of government to another organ or body would be inconsistent with Article 3 read with Article 4 of the Constitution. Though Article 4 provides the form and manner of exercise of the sovereignty of the people, the ultimate act or decision of his executive functions must be retained by the President. So long as the President remains the Head of the Executive, the exercise of his powers remain supreme of sovereign in the executive field and others to whom such power is given must derive the authority from the President or exercise the Executive power vested in the President as a delegation of the President.’

The smuggled in 33A subverts this principle, but I suspect Ranil will try to claim that it has been approved by the Court. Certainly so substantial an amendment, which clearly transfers a power attributed to one organ of government to another, cannot come in siply as an amendment. But Ranil will try to skate over this, and how he will do this was apparent from his claim that this virtual usurpation of powers will not apply to the currently elected President. But that was not accurate, since the gazette draft makes clear that the President loses much authority after the next General Election.

The country cannot leave such important issues to the subterfuges Ranil will employ. I hope it will be possible for the matter to be canvassed in the Court, which should be asked to rule on whether the smuggled in 33A can be passed without a referendum. The wording of the judgment, as quoted above, makes clear that there can be no such derogation of power. But it may be best to get a clear ruling from the Court if possible, otherwise the Amendment may well be smuggled in to Parliament.

It was agreed at the meeting to decide on when the Bill would be taken up that only the gazetted version could be voted on at the 2nd reading, which is standard practice. I suspect there will be a lot of amendments, including my own, which will try to introduce specific Cabinet portfolios. But it will be necessary to discuss these at length, and also to disallow anything that contradicts the very clear opinion of the Court regarding the continuing Executive authority of the President. I trust the Speaker will receive legal advice to this effect, consulting the Court if necessary, and rule out of order any amendments that go against the clear ruling of the Court.