Chapter 1: The Process of Constitutional Reform: January to May 2015

Aruni Jayakody

Introduction

One of common opposition candidate Maithripala Sirisena’s core campaign promises was to abolish the executive presidency, and repeal the Eighteenth Amendment during his first one hundred days in office. Once elected, it was thought that an expedited process of constitutional reforms, followed closely by parliamentary elections, would allow a new government to take hold on a more durable mandate, and at the same time, limit the space available for opposition forces to re-group. Prior to the official release of the draft Nineteenth Amendment Bill, a number of discussion papers, and un-official drafts were leaked online. These initial drafts were far-reaching, requiring the President to always act on the advice of the Prime Minister, and proposed to make the latter the head of government. On 12th March 2015, an official draft was tabled before Cabinet, which included the provisions requiring the President to always act on the advice of the Prime Minister. However, prior to being published in the Gazette, the draft was discussed later at a party leaders’ meeting on 15th March. At this meeting objections were raised against the advice clause. An official draft was published in the Gazette, removing the advice clause but retained the provisions allowing the Prime Minister to be the head of Cabinet. Once released, the Jathika Hela Urumaya (JHU) objected to the limitations on presidential power, and vowed to defeat the Nineteenth Amendment. The JHU’s opposition was not unexpected but given their limited presence in Parliament it was thought their opposition could be overcome. However, the government did not seem to have foreseen that factions of the President’s own party would revolt against the Nineteenth Amendment. The government, conscious of the fast approaching deadline, engaged in a series of closed door negotiations hoping to enlist the support of the opposition.  The resulting process was extremely opaque and confusing, with frequent changes and re-changes to the draft bill. Even after offering ministries to Sri Lanka Freedom Party (SLFP) members, and agreeing to enact concomitant electoral reforms, only a significantly weakened version of the Nineteenth Amendment was able to garner the necessary two-thirds majority in Parliament.

Initial Drafts

The origins of the Nineteenth Amendment lay in a draft prepared by the National Movement for Social Justice (NMSJ) led by the late Maduluwawe Sobitha Thero.[1] Once Maithripala Sirisena emerged as the common opposition candidate, one of his core promises was to ‘abolish’ the executive presidency and to restore the independence of government institutions within the first one hundred days of taking office. It is important to note that the Sinhala version of the Maithri manifesto consistently refers to “changing the executive presidency”[2] whereas the English manifesto inter-changeably promises to both “change” and “abolish” the executive presidency.[3] The manifesto promised to introduce a new constitutional structure that would “essentially be an executive allied with parliament through the cabinet.”[4] A core component of its promise to reform the constitution was also to repeal the Eighteenth Amendment, and restore the independence of governance oversight commissions. A number of additional reforms were also promised, including the removal of presidential legal immunities; determining the number and composition of cabinet ministers according to a “scientific basis”; “reinforcing” the parliamentary committee system; and enacting a binding code of ethics on all representatives including at the provincial level.[5]

Early on in the Sirisena administration, Prime Minister and Minister in charge of Constitutional Affairs, Ranil Wickremesinghe appointed a political committee on constitutional reforms, consisting of representatives from all parties in government, as well as Dr Jayampathy Wickramaratne, who is also a member of the NMSJ, and two senior retired legal draughtspersons.[6] Based on decisions reached by the political committee, an initial draft Nineteenth Amendment Bill was prepared, and was submitted to the government legal draughtsperson for further drafting. Dr Wickramaratne has publicly stated that preliminary drafts prepared by the committee provided for the abolition of the executive presidency, and at the same time allowed the President to retain certain limited powers.[7]

A document titled ‘Discussion Paper on Constitutional Reform’ was leaked in early February, containing a proposal to make the Prime Minister the head of government and requiring the President to always act on the advice of the Prime Minister.[8] The President could ask the Prime Minister to reconsider his advice; however, the President was to always act on the re-considered advice. The Paper also suggested that a Council of State was being considered to make recommendations to government on implementation of matters contained in the Statement of Government Policy. The Discussion Paper further included a proposal to establish Consultative Committees for each Ministry. The Seventeenth Amendment was to be largely reintroduced with some modifications, and two new commissions were to be established: the Audit Service Commission and a National Procurement Commission. A draft bill containing these provisions was leaked and published online in early March.[9] However, this document appeared to be an unofficial draft, as it used different stylistic conventions, including gender neutral language, from the language that is generally employed by government legal draftspersons.

From the outset a decision was made to expedite the process of drafting the Nineteenth Amendment, and complete the entire process by April. It was also agreed that only changes that does not require a referendum would be enacted. Fortunately, despite these extremely short time constraints, at a February meeting of the National Executive Committee, it was decided that the Nineteenth Amendment would not be rushed through as an ‘urgent bill.’[10] Ostensibly this was done with a view to facilitate at least some public discussion of the proposed amendment. Yet, well into early March, no official draft was released by the government.

A draft Nineteenth Amendment Bill was tabled before Cabinet on 12th March.[11] The draft bill much like the earlier unofficial leaked version provided that the President shall be Head of State but not the Head of Government. Except “in case of the appointment of the Prime Minister or as otherwise provided by the Constitution” the President was to always act on the advice of the Prime Minister.[12] The President could ask the Prime Minister to reconsider his advice; however the President must act on such reconsidered advice. The Prime Minister was to be the head of Cabinet. On the advice of the Prime Minister, the President could appoint a Deputy Prime Minister from among the members of Cabinet. The Prime Minister was to determine the number of Cabinet Ministers, as well as the Ministries and the assignment of subjects and functions to such Ministers. Similar to the leaked version, the draft bill also provided for a Council of State.

Media reports indicate that at the meeting Champika Ranawaka, Rajitha Seneratne, Duminda Dissanayake, and M.K.A.D.S. Gunawardena had raised strong objections to the contents of the bill.[13] Owing to the disagreements, a meeting was scheduled among party leaders on the morning of Sunday 15th March with a view to reaching a consensus.[14] The decision to share the draft bill with the party leaders may have been strongly influenced by the fact that without opposition support, there was no possibility of the government securing the required two-third majority to effect constitutional change.

The party leaders’ meeting was attended by the Prime Minister, Nimal Siripala De Silva, Anura Priyadharshana Yapa, G. L. Peiris, Champika Ranawaka, Rauff Hakeem, Rishad Bathiudeen, and Vasudeva Nanayakkara.[15] Interestingly, leaders of the Tamil National Alliance (TNA) and the Janatha Vimukthi Peramuna (JVP), who had strongly supported abolition of the executive presidency, had not participated in the meeting.[16] Subsequent media reports indicate that at the meeting there was disagreement among party leaders on who should be the Head of the Government, and the advice clause requiring the President to always act on the advice of the Prime Minister.[17]

Following the party leaders meeting, the provisions containing the advice clause, the appointment of a Deputy Prime Minister, and the Council of State were deleted. Instead of re-drafting the bill, a bill edited by hand, crossing-out the provisions to be deleted was re-submitted for Cabinet approval, later that afternoon. Late into Sunday 15th March, the draft Nineteenth Amendment Bill was sent to be published in the government Gazette.      

The Gazetted Bill

The Nineteenth Amendment Bill was officially published in the Gazette on 16th March, and it appeared to be substantively different from earlier, leaked drafts. Most importantly the advice clause requiring the President to always act on the advice of the Prime Minister had been deleted. Additionally, the provisions relating to a Council of State had been omitted.

The President was to be the Head of Government, but the Prime Minister was to be the Head of Cabinet.[18] The Cabinet of Ministers was charged with the direction and control of the government and was both collectively responsible and answerable only to Parliament.[19] The Prime Minister was given substantive powers to determine the composition of Cabinet. He determined the number of Cabinet Ministers as well as their subjects and functions.[20] All ministers were to appointed be by the President on the advice of the Prime Minister.[21] The Prime Minister recommended to the President any changes to the composition of the Cabinet.[22]

The President was to now be the “symbol of national unity.”[23] The President’s functions were limited to promoting national reconciliation; facilitating preservation of religious and ethnic harmony; and ensuring the proper functioning of the Constitutional Council and independent commissions.[24] The term of the President was reduced to five years,[25] and the two-term limit was re-introduced.[26] The Seventeenth Amendment was re-introduced, with some changes. The Constitutional Council was to be appointed with the reference to the “pluralist character of Sri Lanka, including professional and social diversity.” Amendments were also made to address loopholes from the past, including that appointments are deemed to be made, if the President does not appoint the nominated individuals. Additional provisions included granting powers to the Election Commission to issue guidelines to media institutions in the midst of election campaigns, and to appoint a Competent Authority when such guidelines are not followed.

Additionally, the bill sought to address one of the excesses of the Rajapaksa regime by limiting the number of Cabinet Ministers to thirty, and other ministers to forty.[27] If there was to be a national government following the next general election, then the number of Cabinet Ministers could be increased to forty five, and other ministers to fifty five.[28] A right to information was also introduced subject to a number of restrictions.[29]  

Political Backdrop

In his manifesto, the President claimed he could deliver on the promise to change the constitution within the first hundred days, as the United National Party (UNP) and the JVP had entered into an agreement with him to support constitutional change.[30] He further promised that once elected, he could “obtain the support of the SLFP” to enact constitutional reform.[31] Once elected, President Sirisena appointed the leader of the UNP, Ranil Wickremesinghe, as the Prime Minister and a Cabinet largely consisting of members of the UNP. However, despite these changes, the new government faced a Parliament that was overwhelmingly constituted of the United People’s Freedom Alliance (UPFA).

As the debate surrounding the Nineteenth Amendment evolved, Minister Ranawaka emerged as a prominent opponent of the draft, supported by the Mahinda faction of the UPFA. Along with the Mahinda faction, Minister Ranawaka objected to there not being accompanying electoral reforms. Relying on assurances made by the Election Commissioner, the SLFP argued that it was possible to complete delimitation of constituencies, within three months.[32] Second, Ranawaka objected to the Prime Minister heading the Cabinet, arguing that such a change required a referendum. Ranawaka argued that the bill reduced the role of the President to a mere figurehead, similar to the position of the President under the 1972 Constitution.[33] The amendment amounted to an ‘abolition’ of the executive presidency; whereas the President had only received a mandate to ‘reform’ the executive presidency.

Ranawaka’s argument is plainly disingenuous as President Sirisena’s campaign, had promised to abolish the executive presidency. Despite the contradictory language in the English and Sinhala manifestos, the rhetoric used during the campaign and other campaign documents, for example the ‘100 Day Work Programme’ promised to abolish the executive presidency.[34] Additionally, the other coalition partners of the National Democratic Front (the common opposition led by Sirisena in the presidential election), including the UNP, TNA, and the Sirisena faction of the SLFP, all campaigned promising to abolish the executive presidency.

However, Ranawaka is partially correct in that the JHU’s conditional support for candidate Sirisena was based on a commitment to ‘reform the executive presidency.’[35] At the time, JHU’s legal advisor, Udaya Gammanpila quit the party, allegedly over the disparities in the promises made by the Sirisena campaign to the UNP and to the JHU. Gammanpila pointed out that Sirisena’s agreement with the UNP agreed to ‘abolish the executive presidency’ whereas the memorandum of understanding with the JHU promised to ‘reform the executive presidency.’[36] Ranawaka’s opposition was not unexpected, given the JHU’s long-standing views on constitutional reform. Since its inception, the JHU has supported the unitary constitution and the centralisation of power as a means to preserve the supremacy of the Sinhala-Buddhist polity. In particular, the JHU has strenuously opposed any meaningful devolution of power to minorities.  Viewed within this lens, a President directly elected by the majority Sinhala-Buddhist community, is essential to preserving its nationalist ideology.

An additional objection raised by Ranawaka was the process used to enact constitutional reform.  Ranawaka complained that on various occasions the Prime Minister attempted to ‘hoodwink’ the alliance members.[37] In particular, Ranawaka repeatedly alleged that at the party leaders meeting on Sunday 15th March, a consensus was reached to retain the President as Head of the Cabinet, whereas the bill that was published in the Gazette continued to provide that the Prime Minister shall be the Head of the Cabinet.[38] The Prime Minister denied claims of subterfuge, and pointed out that the final version had been considered by the Cabinet, which included the JHU.[39]

Aside from the legal and constitutional considerations, some of the arguments were predicated on personal attacks on the Prime Minister. Both factions of the SLFP and the JHU sought to cast the provisions granting enhanced powers to the Prime Minister, as a coup by Wickremesinghe to create an ‘Executive Prime Minister’ position for himself.[40] Ranawaka claimed that the “19th Amendment presented in parliament was a constitutional coup to allow a person who is unable to win at an election to retain power.”[41] Additionally, some quarters speculated that Minister Ranawaka objected to reductions of the President’s powers, as he had his own presidential ambitions.[42]  In particular, a report was widely repeated in the media that Ranawaka’s astrologer had informed him that he could become President in 2020, and as a consequence, he did not wish to curtail the powers of the Executive President.[43] 

Supreme Court Hearing

On 6th April 2015, the Supreme Court heard thirteen petitions on the constitutionality of the Nineteenth Amendment Bill. The Supreme Court ruled that a number of provisions be struck down so that the bill does not require approval at a referendum. A number of petitioners argued that the provisions giving enhanced powers to the Prime Minister alter the basic structure of the constitution, as it diminishes the “discretionary authority of the President to make decisions concerning executive governance.” The Supreme Court held that executive power can be distributed to others via the President. However, in such situations, “the President must be in a position to monitor or to give directions to others who derive authority from the President in relation to the exercise of his Executive Power.”[44] Applying this reasoning, the Court held that a number of provisions be struck down including ones that provided the Prime Minister to be the Head of the Cabinet; the power of the Prime Minister to determine the composition of the Cabinet, as well to assign and reshuffle Ministries.[45] It is important to note that the Court did not object to the Prime Minister exercising these functions per se. Rather the Prime Minister could exercise these powers, provided the President had the power to “monitor or give directions” to the Prime Minister. Additionally, the Court ordered that draft article 33(1) which provided that the President shall be the symbol of national unity be struck down as the national flag had long been recognised as the symbol of national unity.[46]

During the hearing the Attorney General introduced new amendments that were later leaked but was never formally released by the government. This highly secretive move by the government further attracted criticism from opposition groups about the process being used to enact constitutional reform. Ranawaka argued that the attempt to introduce new amendments before the Supreme Court, in principle violates Article 78 of the constitution, which provides that every bill must be published in the Gazette seven days before it is placed on the order paper of Parliament.[47] The Attorney General’s memorandum proposed a number of substantive as well as procedural changes to the version that was published in the Gazette. The right to access information was amended to limit the right of access to information “as provided by law.”[48]  Clause 14(1)(d) was amended to limit the range of persons that would be under an obligation to provide information to persons who possessed information in relation to one of the specified government bodies.[49] Additionally, the prevention of contempt of court, the protection of parliamentary privilege, and the prevention of disclosure of information communicated in confidence, were inserted as bases for limiting the right to information.

Importantly, the Attorney General’s memorandum provided for the powers of the President to be modified with an advice clause where the President shall act on the advice of the Prime Minister except when appointing the Prime Minister or when the constitution provides otherwise.[50] The President could ask the Prime Minister to reconsider such advice. If the Prime Minister does not change his advice, then he must inform Parliament and seek Parliament’s views. In such instances, the President must act on the advice of Parliament, or when Parliament does not express any views, the President shall act in accordance with the advice of the Prime Minister.  An additional clause was inserted to provide an exception to instances where privately owned media institutions would not have to follow guidelines from the Election Commissioner, provided they inform the Commission that it is their policy to support a specific candidate, party or position.  

Period leading up to Committee Stage

In response to the Supreme Court determination, the Prime Minister announced that the government would not re-draft the bill but would seek to introduce the necessary changes during the committee stage.[51] The UNP was eager to dissolve Parliament and rush to the polls within the timetable stipulated in the 100 Day Programme. However, at the same time, President Sirisena was increasingly losing control of his own party. The ‘troika’ consisting of the Prime Minister, former President Chandrika Bandaranaike Kumaratunga, and President Sirisena, attempted through closed-door meetings to offer concessions and enlist support from SLFP members. Prior to sending the bill to the Supreme Court, in a move calculated to win over factions of the SLFP, the President appointed a new round of Ministers, including eleven Cabinet Ministers, five Minister of State, and ten Deputy Ministers. Additionally, the President agreed to enact electoral reforms, in the form of a Twentieth Amendment, alongside the Nineteenth Amendment. The task of drawing up the reforms was also given to Opposition Leader Niman Siripala de Silva, side-lining UNP proposals for an electoral commission to draft changes to the electoral system.

Despite these concessions, the JHU and the Mahinda loyalists among the UPFA continued to vow to defeat the Nineteenth Amendment in Parliament. In particular, with the prospect of looming parliamentary elections, former President Mahinda Rajapaksa and his allies commenced a grassroots campaign with the hope of restoring him to the post of Prime Minister.  Additionally, a number of former UPFA Ministers who been side-lined in the Sirisena administration, whose prospect of gaining nomination from the SLFP looked slim, agitated for Rajapaksa and became increasingly vocal in their opposition to the Nineteenth Amendment Bill. Signs of a possible split within the UPFA emerged when on 7th April, when a UNP resolution to raise the upper limit of a treasury bill issue for borrowing rupees 400 billion was defeated.  Despite assurances by Opposition Leader de Silva that it would not oppose the resolution, large numbers of UPFA members voted against the resolution. Matters came to a head when UPFA members called on the Speaker to appoint Dinesh Gunawardena, a Rajapaksa loyalist, as Leader of the Opposition.[52]

The UNP on the other hand had promised its rank and file that Parliament would be dissolved on 23rd April.[53] The UNP had to either muster a constitutional amendment or break the alliance and go back to opposition. This could also mean a considerable wait, and losing out on the advantage of going into an election as an incumbent government. Additionally, it could also have faced a backlash from the voters that it had failed to fulfil one of the core promises contained in the 100 Day Programme. The UNP’s credibility was also being undermined by its failure to pursue corruption allegations against those in the previous administration. In particular, the scandal surrounding the Central Bank Governor Arjuna Mahendran, was further adding to the perception that the UNP was no better than its predecessor.  

Committee Stage

As the parliamentary debate on the Nineteenth Amendment approached, significant uncertainty remained over whether the bill would in fact be successfully enacted. On the eve of the parliamentary debate, two teams were appointed to address the continuing opposition to the Nineteenth Amendment. The government team included M. A. Sumanthiran, Ajith Perera, and Rauff Hakeem, and the SLFP team constituted of Anura Priyadarshana Yapa, Faizer Musthapa, and Rajiva Wijesinha.[54] Among the key issues negotiated included demands to limit the instances where the President would have to act on the advice of the Prime Minister and a demand to alter the composition of the Constitutional Council to allow increased participation by Members of Parliament. Ultimately these demands were met and a number of important provisions that curtailed the powers of the President and provided an enhanced role for the Prime Minister were weakened.

At the beginning of the parliamentary debate, the Prime Minister conceded that the Nineteenth Amendment was not what the government had originally envisaged, but that it was better than no reform.[55] Throughout the process, there was also a view among the UNP members that after the next parliamentary election, there would be an additional opportunity to enact further reforms.[56]  During the committee stage a number of SLFP members led by Dinesh Gunawardena, Vasudeva Nanayakkara, and Wimal Weerawansa made a series of interventions, and succeeded in adding a number of additional amendments to the final text. Among the changes made included removing appointments to the University Grants Commission and the Official Languages Commission from the purview of the Constitutional Council.[57] Additionally, the clause in the official draft requiring the Constitutional Council to consult the views of the Attorney General, Minister of Justice, and President of the Bar Association, when appointing judges to the Supreme Court and the Court of Appeal was removed.[58] Further a clause only affording the Supreme Court the jurisdiction to hear matters related to disciplinary action taken by political parties over MPs was removed.[59]

The final text of the Nineteenth Amendment provides that the President shall be a member and Head of the Cabinet. The President may consult the Prime Minister “where he consider such consultation to be necessary” when determining the number of Cabinet Ministers, other Ministers, and their subjects and functions.[60] As Anura Priyadarshana Yapa explained, the rationale for diluting the advice clause was that a President should only have to take advice from the Prime Minister, when both are not from the same party.[61] Additionally, according to the final text, the President could without consulting the Prime Minister, at any time reshuffle Cabinet or other Ministers.[62]

The composition of the Constitutional Council was altered to allow greater participation by Members of Parliament. The Council now consists of three ex officio members – the Speaker, the Prime Minister, and the Leader of the Opposition – as well as one MP appointed by the President, two MPs nominated by the Prime Minister and the Leader of the Opposition, and one MP nominated by agreement of MPs belonging to political parties other than the parties of the Prime Minister and the Leader of the Opposition. This only leaves three non-MPs to be nominated by the Prime Minister and the Leader of the Opposition. Yapa explained that the reason behind the change was that civil society representatives were not accountable to anyone, unlike MPs who must answer to Parliament.[63]

The parliamentary procedure is that once any final amendments are made during the third reading of the bill, a final draft text is not presented to members prior to approving the amendments. The final text of the amendment is based on the government legal draughtsperson’s understanding of the debate as recorded on an audio file and on Hansard. In this case, it took more than two weeks for the final Nineteenth Amendment Act to be published, as the legal draughtsperson had to review the record of proceedings and compile the final amendments. The debate on the floor of the House is fast paced, and often no additional legal advice is sought prior to agreeing to amendments. In the case of the Nineteenth Amendment, provisions relating to the formation of a national government, and whether independent institutions should be answerable to Parliament, were amended causing some ambiguity and allowing superfluous provisions to be inserted. For example, Tissa Vitharana insisted that an amendment be included requiring all independent commissions mentioned in the schedule of Article 41B, except the Election Commission shall be “responsible and answerable” to Parliament.[64] However, the constitution already provides that the Election Commission, along with a number of other commissions, are answerable to parliament.[65]

The question of whether the number of Ministers should be capped under a national government came under much debate. Members argued over whether there should be a limit on the maximum number of Ministers or whether it should be left at the sole discretion of Parliament; and over whether ad how a ‘national government’ should be defined. Some members wanted it left open so that a national government could be formed between the party that wins the largest number of seats and any other party. The amendment was verbally re-phrased by the Minister for Justice, Wijayadasa Rajapakshe, as follows: “Not withstanding Article 46(1) in an instance where a government is formed between the party winning the highest number of seats and the party winning the second highest number of seats, the number of Cabinet positions shall be determined by Parliament.”[66] However, immediately afterwards Dinesh Gunawardena intervened and suggested that the provision should read as, “…whenever the main party forms a government with another party” and that matter should be “…determined by Parliament.”[67] To which the Minister for Justice responded by saying, “We agree, Parliament should decide”.[68] The final text of Article 46(4), as formulated by the government legal draughtsperson provides as follows: “…where the recognized political party or the independent group which obtains highest number of seats in Parliament forms a National Government” the number of Ministers shall be determined by Parliament.[69] ‘National Government’ is further defined in Article 46(5) as “…a Government formed by the recognized political party or the independent group which obtains the highest number of seats in Parliament together with the other recognized political parties or the independent groups.” [70] Unlike in the gazetted bill, this clause was no longer merely a transitional provision that was to apply only to the period following the August 2015 general election. Under its current formulation, national governments can be formed in the future, and in such situations, the number of Cabinet Ministers, other Ministers, and Deputy Ministers can be increased at the discretion of Parliament.

Once the general election was over, a question was raised whether the UNP and the SLFP could in fact come within the definition of the ‘National Unity Government’ under the Nineteenth Amendment.  JVP leader Anura Kumara Dissanayake raised a point of order, arguing that Article 46 (4) and (5) required a national government to “comprise of all parties” and that “just because a couple of parties entered into an agreement it could not be called a National Government.”[71]  In particular he pointed out that Article 46(5) does not state that a “certain number of parties” or “some parties” could join the party with the highest number of seats to form a national government.[72] The matter was resolved with the Speaker determining that the agreement between the UNP and the SLFP did amount to a national government. However, the confusion raised by Article 46, underscores a larger problem whereby at the committee stage, members verbally propose and agree to constitutional amendments without in fact sighting the written amendment. 

Conclusion

The idea of constitutional reform via a Nineteenth Amendment had been in public discourse at least two years prior to its enactment. The initial draft presented a genuine opportunity for reform. The advice clause requiring the President to always act on the advice of the Prime Minister, had it been enacted in its original form, would have significantly contributed to curtailing the excesses of the executive presidency. However, during the entire process of drafting, negotiating, and enacting the Nineteenth Amendment, a series of countervailing political forces served to weaken the final text. The political wrangling during the negotiations of the Nineteenth Amendment serves as a cautionary tale for the new government. The allies that had entered into a formal agreement with the President promising to support constitutional reform at the outset of the elections, turned spoilers once the process began in earnest. No doubt the parliamentary arithmetic is now in new the government’s favour, and importantly, the President has far greater control over his own party. However, all stakeholders must give pause to consider why elite-driven progressive reform moments are not sustained in the longer term.

As the government moves forward with plans to transform Parliament into a ‘Constitutional Assembly’ to enact further reform, serious thought must be given to improving the quality of the process of constitutional reform. Genuine participation in a constitutional reform process requires that members of the public participate at all stages of the process, from setting the agenda, determining the content, to final ratification. The extent and quality of the participation in a constitution-making process has a direct correlation to the strength of the final text, as well as its legitimacy and level of acceptance among the citizenry. A broader, more consultative, constitutional reform process may also serve to protect against political spoilers, who seek to advance narrow, nationalist, or otherwise self-serving interests.

[1] New Democratic Front [Common Opposition] (2014) Manifesto: A Compassionate Maithri Governance: A Stable Country: p.14.  See also Parliamentary Debates, 234 (8) (Part I), 28th April 2015: Col.725, where M.A. Sumanthiran MP refers to early efforts by civil society stakeholders, including the National Movement for Social Justice (NMSJ) to abolish the executive presidency and repeal the Eighteenth Amendment.

[2] New Democratic Front (2014) (translated from Sinhala): pp.14-15.

[3] Ibid: pp.13-15.  For e.g., in the first chapter titled ‘A Constitutional Amendment Guaranteeing Democracy,’ the first subheading reads as, ‘Abolishing the Executive Presidential System with Unlimited Powers.’ However, in the text following the subheading, the manifesto proposes to ‘change the Executive Presidential System.’

[4] New Democratic Front (2014): p.14.

[5] Ibid.

[6] C. Kuruppu, ‘Jayampathi on the 19th A, electoral reforms and 100-day program’, DailyFT, 31st March 2015, http://www.ft.lk/article/401653/Jayampathy-on-19th-A–electoral-reforms-and-100-day-program (accessed 5th September 2015).

[7] Ibid.

[8]Maithri Proposals on Constitutional Reforms: Full Text’, Colombo Telegraph, 9th February 2015, https://www.colombotelegraph.com/index.php/maithri-proposals-on-constitutional-reforms-full-text/ (accessed 5th September 2015).

[9]Exclusive: Full Text of Sirisena’s 19th Amendment’, Colombo Telegraph, 7th March 2015, https://www.colombotelegraph.com/index.php/exclusive-full-text-of-sirisenas-19th-amendment/ (accessed 5th September 2015).

[10]Additionally in late January, a prohibition order was sought in the Court of Appeal to prevent constitutional changes as an ‘urgent bill.’ See ‘Appeal Court Prohibitory Order sought on passing constitutional changes as an “urgent bill”’, The Island, 31st January 2015, http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=118738 (accessed 5th September 2015).

[11]Cabinet in emergency meeting tomorrow to solve crisis over 19-A’, Ceylon Today, 14th March 2015, https://www.ceylontoday.lk/51-87298-news-detail-cabinet-in-emergency-meeting-tomorrow-to-solve-crisis-over-19-a.html  (accessed 5th September 2015).  See also Office of the Cabinet of Ministers, ‘Proposed Amendments to the Constitution’, Cabinet Paper No 15/0237/602/021.

[12] See Article 33A(2) of the Bill annexed to Cabinet Paper No15/0237/602/021.

[13] Political Editor, ‘Premier presents 62-page constitutional amendment, but deadlock over deadline’, The Sunday Times, 15th March 2015, http://www.sundaytimes.lk/150315/columns/premier-presents-62-page-constitutional-amendment-but-deadlock-over-deadline-139982.html (accessed 5th September 2015); ‘19th A and electoral reforms run into a storm’, Ceylon Today, 22th March 2015, http://www.ceylontoday.lk/51-87914-news-detail-19a-and-electoral-reforms-run-into-a-storm.html (accessed 5th September 2015).

[14] Ibid.

[15]19th Amendment Approved by Cabinet’, http://laska.asia/buzzzz-247/19th-amendment-approved-by-cabinet/ (accessed 5th September 2015).

[16] Ibid.

[17] Kuruppu (2015).

[18] Nineteenth Amendment to the Constitution: A Bill, 16th  March 2015: Cl.30(1), 42(3).

[19] Ibid: Cl.42(1), (2).

[20] Ibid: Cl.43(1).

[21] Ibid: Cl.43(2), 44(1).

[22] Ibid: Cl.43(3).

[23] Ibid: Cl.33(1).

[24] Ibid: Cl.33(2).

[25] Ibid: Cl.30(1).

[26] Ibid: Cl.35(1).

[27] Ibid: Cl.46.

[28] Ibid: Cl.46(3).

[29] Ibid: Cl.14A.

[30] New Democratic Front (2014): p.15.

[31] Ibid.  See also L. Ockersz, ‘19th Amendment seeing its final touches’, The Island, 5th February 2015, http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=119003s (accessed 5th September), where Presidential Advisor on Constitutional Affairs Dr Jayampathy Wickramaratne PC stated in an interview, “The government does not have a majority in Parliament, but since the President is also the leader of the SLFP, which is the largest party in Parliament, I do not see any obstacles being posed to the implementation of the 100 day programme.”

[32] Political Editor, ‘Premier presents 62-page constitutional amendment, but deadlock over deadline’, The Sunday Times, 15th March 2015.

[33] H. Gunaratna, ‘Ranil runs into brick wall in Ranawaka’, The Island, 7th April 2015, http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=122756 (accessed 5th September 2015).

[34] See e.g., Sirisena’s first media conference announcing his candidacy, where he promised (speaking in Sinhala) to abolish the executive presidency and remove the Eighteenth Amendment: ‘I will contest as the Common Candidate – Maithripala Sirisena’, Adaderana, 21st November 2014, https://www.youtube.com/watch?v=f7VgUw7PMnE (accessed 5th September 2015);  See also the 100 Day Programme, where he promised to begin the process of ‘abolishing’ the executive presidency and repeal the Eighteenth Amendment, on 21 January 2015.  ‘Maithripala Sirisena’s 100 day work program’, News.lk, 12th January 2015, http://www.news.lk/fetures/item/5665-maithripala-sirisena-s-100-day-work-programme (accessed 5th September 2015).

[35] M. Mudugamuwa, ‘Jathika Hela Urumaya Extends Conditional Support to Maithripala Sirisena after signing a 9 point MOU’, The Island, 2nd December 2014, http://island.lk/index.php?page_cat=article-details&page=article-details&code_title=115258 (accessed 5th September 2015).

[36] C. Weerasinghe, ‘Obviously Sirisena Lied’, Daily News, 2nd December 2014, http://www.dailynews.lk/?q=local/obviously-sirisena-lied (accessed 5th September 2015).

[37] Gunaratna (2015).

[38] See e.g., N. Ariyawansha, ‘JHU rejects 19th Amendment’, Ceylon Today, 20th March 2015, https://www.ceylontoday.lk/51-87755-news-detail-jhu-rejects-19th-amendment.html (accessed 5th September 2015); Gunaratna (2015).

[39]JHU threatens to block 19A’, The Sunday Times, 5th April 2015, http://www.sundaytimes.lk/150405/news/jhu-threatens-to-block-19a-143674.html (accessed 5th September 2015).

[40] Gunaratna (2015).

[41] L. Pothmulla, ‘19a “Constitutional Coup – JHU’, Daily Mirror, 24th March 2015, http://www.dailymirror.lk/67077/stitutional-coup-jhu (accessed 5th September 2015).

[42] See C. Nathaniel, ‘Champika Stands His Ground’, The Sunday Leader, 12th April 2015, http://www.thesundayleader.lk/2015/04/12/champika-stands-his-ground/ (accessed 5th September 2015); C. Gunawardana, ‘JHU defends Ranawaka; says he is more suitable for presidency’, DailyFT, 2nd April 2015, http://www.ft.lk/article/402877/JHU-defends-Ranawaka–says-he-is-more-suitable-for-presidency- (accessed 5th September 2015); ‘Viyangoda says Champika Ranawaka Wants To Be Prime Minister By 2020’, Asian Mirror, 31st March 2015, http://www.asianmirror.lk/news/item/7928-viyangoda-says-champika-ranawaka-wants-to-be-prime-minister-by-2020 (accessed 5th September 2015).

[44] Supreme Court Determination on the Nineteenth Amendment to the Constitution (2014) SD No 04/2015, SCM 9th April 2015: p. 10, per Sripavan CJ, Ekanayaka J, and Dep J.,

[45] Court held that Clauses 42(3), (43(1), 43(3), 44(2), (44(3), (44(5) of the Bill should be struck down: SD No 04/2015: p.11.

[46] Ibid: p.14.

[47] Nathaniel (2015).

[48] Attorney General (2015)‘Amendments proposed to the 19th Amendment to the Constitution Bill’: p.1.

[49] Ibid.

[50] Ibid: p.5.

[51] Political Editor, ‘Sirisena, Ranil struggling for good governance with backs to the wall’, The Sunday Times, 12th April 2015, http://www.sundaytimes.lk/150412/columns/144396-144396.html (accessed 5th September 2015).

[52] C. Kirinde, ‘National Govt. on the rocks as 19 A hangs over dissolution of House’, The Sunday Times, 12th April 2015, http://www.sundaytimes.lk/150412/columns/national-govt-on-the-rocks-as-19a-hangs-over-dissolution-of-house-144425.html (accessed 5th September 2015).

[53] This intention is also clear from the version published in the Gazette, which indicates that certain provisions shall come in to force on 22nd April 2015.

[54] Political Editor, ‘President’s diplomacy brings about win-win solution to 19 A’, The Sunday Times, 3rd May 2015, http://www.sundaytimes.lk/150503/columns/presidents-diplomacy-brings-about-win-win-solution-to-19a-147635.html (accessed 5th September 2015).

[55] Parliamentary Debates, 234 (8) (Part I), 28th April 2015: Col.869.

[56] For example, Eran Wickramaratne MP, in his speech to Parliament during the debate on the Nineteenth Amendment, noted that following the next parliamentary election, it was hoped to turn Parliament into a Constituent Assembly, to re-examine the entire constitution. See Parliamentary Debates, 234 (7), 27th April 2015: Cols.551-552.  The Prime Minister himself had made a similar statement to The Sunday Times following the Supreme Court ruling: see Political Editor, ‘Sirisena, Ranil struggling for good governance with backs to the wall’, The Sunday Times, 12th April 2015.

[57] Parliamentary Debates, 234 (8) (Part II), 28th April 2015: p.904; See also Constitution of Sri Lanka (1978): Article 41B, Schedule.

[58] Parliamentary Debates, 234 (8) (Part II), 28th April 2015: Col. 904.

[59] Dinesh Gunawardena MP proposed the removal of the clause as it is important to protect the rights of MPs, see Parliamentary Debates, 234 (8) (Part II), 28th April 2015: Col.954.

[60] Constitution of Sri Lanka (1978): Articles 43(1), 44(2).

[61]Political Editor, ‘President’s diplomacy brings about win-win solution to 19 A’, The Sunday Times, 3rd May 2015.

[62] Constitution of Sri Lanka (1978): Articles 43(3), 44(3).

[63] Political Editor, ‘President’s diplomacy brings about win-win solution to 19 A’, The Sunday Times, 3rd May 2015.  Dinesh Gunawardena offered a similar explanation during the third reading of the Bill, see Parliamentary Debates, 234 (8) (Part II), 28th April 2015: Col.905.

[64] Parliamentary Debates, 234 (8) (Part II), 28th April 2015: Cols.907-908, 916; Constitution of Sri Lanka (1978): Article 41B (6).

[65] Constitution of Sri Lanka (1978): Articles 104B(3), 55(5), 155N.

[66] Parliamentary Debates, 234 (8) (Part II), 28th April 2015: Col.939 (translated from Sinhala).

[67] Ibid: Cols.939-940 (translated from Sinhala).

[68] Ibid: Col.940 (translated from Sinhala).

[69] Constitution of Sri Lanka (1978): Article 46(4).

[70] Ibid: Article 46(5).

[71] G. Weerakoon & S. Gunasekara, ‘National Government’, Ceylon Today, 4th September 2015, https://www.ceylontoday.lk/51-102781-news-detail-national-government.html (accessed 5th September 2015).

[72] Ibid.

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