Chapter 6 | Parliament and Government after the Nineteenth Amendment

Reeza Hameed

The Nineteenth Amendment is an important landmark in the constitutional history of Sri Lanka. Its enactment was made possible after the January 2015 presidential election, which brought in its train a significant transformation in the country’s political climate. It may be seen as the initial step in the realisation of the President’s professed goal to change the way in which the country shall be governed. It also affects the relationship between Parliament and the executive. The executive presidential system of government was introduced by a government that was intent on divorcing the executive from Parliament. Since its introduction, the constitution has been tinkered with time and time again to make the executive more powerful. Parliament played no small part in diminishing its own significance by enabling the executive power to be personified in the President for which it gave its approval and provided legitimacy.

The Proposal to Abolish the Executive Presidency

Past presidents reneged on their promise given to abolish the executive presidency once they were elected and became ensconced in office. Parliament, too, has been an obstacle to constitutional change. The significance of the steps taken by the government led by President Sirisena at the urgings of civil society to curb the powers of the President’s office has to be viewed in this light. The call to abolish the presidential system was mooted most prominently by the late Ven. Maduluwave Sobhitha Thero and it was taken up by civil society organisations and parties opposed to Mahinda Rajapaksa. Maithripala Sirisena emerged from within the then government fold as the surprise candidate to challenge Mahinda Rajapaksa. The Thero had launched a movement for the restoration of democracy with a ten point plan which was reduced to three and finally to one, namely the repeal of the executive presidency.[1]

In the campaign for the 2015 presidential election, Sirisena promised that if elected he would promote good governance and guarantee democracy. The main plank of his manifesto was his promise to abolish the Eighteenth Amendment and, with it, the executive presidential system. He promised to restore the Seventeenth Amendment and establish independent commissions to secure the impartiality of appointments to public institutions, such as the police, which had become politicised under the ancien regime.

The initial draft of the Nineteenth Amendment Bill[2] envisaged having a Prime Minister with more extensive powers than before, and it sought to centralise the executive powers in him as the head of the government. It was envisaged that the President would always act on the advice of the Prime Minister,[3] except in the appointment of the Prime Minister himself, although the President could require the Prime Minister to reconsider the advice given to him as well as require Parliament to reconsider a Bill presented to him for his assent. The President would be responsible to Parliament for the due exercise of his powers and duties.[4] The Prime Minister would be the head of the Cabinet of Ministers, and he would determine the composition of the cabinet and the assignment of portfolios to the Ministers. These proposals, if adopted, would have effectively diminished the President’s role in the formation of government and transformed the Prime Minister as the architect of the cabinet.

 

Opposition to the Abolition of the Executive Presidency

The proposal to abolish the executive presidency met with strong opposition from sections of the opposition and the JHU,[5] a government partner, forcing the government to abandon its plans.[6] It is apparent from the draft Bill that was gazetted and the final product that came out of Parliament that the government had to make significant changes to those initial proposals,[7] and compromise on its promise to abolish the executive presidency.[8] Instead of abolishing the office, the Nineteenth Amendment pruned the President’s powers, reinstated the two-term limit, reduced his term to five years, and limited his powers to dissolve Parliament. The President would continue to be the Head of the Government with most of his powers intact, especially with regard to the appointment of the heads of the armed forces, and to declare war and peace. He would be responsible to Parliament, but he would not be required always to act on the advice of the Prime Minster.

The Supreme Court on the Nineteenth Amendment

The Supreme Court determined that the provision in the Bill which required the President to appoint Ministers on the advice of the Prime Minister[9] did not require a referendum but the provision[10] that enabled the Prime Minister at any time to change the subjects and functions of Ministers without reference to the President required approval at a referendum.[11] As a result, the final version of the Nineteenth Amendment has provided that the President may consult the Prime Minister on matters relating to the composition of the Cabinet or the assignment of portfolios and the power to reshuffle the Cabinet lies with him, but a Minister shall continue to hold office and can be removed by the President only on the advice of the Prime Minister.[12] The President cannot assign himself a cabinet portfolio although in the case of President Sirisena the constitution makes special provision that he may hold three named portfolios which he may assign to himself without having the Prime Minister’s approval.[13]

As observed by the Supreme Court, executive power cannot be identified with the President alone and personalised in him but resides in the people at all times. The President is not the sole depository of executive power and there cannot be a government without a Cabinet. The Cabinet is the conduit through which the executive power reposed in the President can be distributed to the other public office-bearers. The ultimate act or decision of his executive functions must stay with the President.[14] The Court opined that the constitution did not intend the President to function as an unfettered repository of executive power unconstrained by the other organs of government and that he remained responsible to Parliament.[15] The President, said the Court, cannot relinquish his executive power and permit it to be exercised by another body or person without his express permission or delegated authority.[16]

Despite the President continuing as head of the cabinet,[17] the Nineteenth Amendment has enhanced the functions and status of the Prime Minister who is located in Parliament. The Nineteenth Amendment has created two power-centres in the form of the President and the Prime Minister, the President directly elected by the people and the other appointed by the President but having the backing of Parliament.

Appointing the Prime Minister

The appointment of a Prime Minister is one of the most important functions that the President is required to perform. The President shall appoint as Prime Minister the Member of Parliament who, in the President’s opinion, is “most likely to command the confidence of Parliament.”[18] The President’s task of identifying the person who would command Parliament’s confidence would not be difficult to discharge where an overall majority is secured by one party at the parliamentary elections. Where the elections produce a hung parliament, a broad range of procedures are possible and the task of appointing a Prime Minister becomes complicated.[19]

The requirement that the President shall appoint the person who ‘commands the confidence of Parliament’ is not free from ambiguity. It can refer either to the person who is the leader of the largest party or the party leader who can secure the support of the majority in Parliament. It can also mean either the person who has the support of the majority in Parliament or the person against whom there is no majority.[20] Whatever the meaning that may be imputed to the phrase ‘commands the confidence of Parliament,’ the leader of the largest party may not necessarily be the person who will secure the support of the majority in Parliament.

 

President’s Discretion under the Constitution 

The President is not required to consult anyone in the appointment of the Prime Minister; ex facie his discretion is subject only to the condition that the person he picks shall command the ‘confidence of Parliament.’ The President might sound out the views of the Members of Parliament to ascertain who would be able to command the confidence of the majority of the members.[21] It would be politically imprudent for a President to ignore the person who has the support of the party having an overall majority in Parliament. Where no single party is able to muster an overall majority, however, the President might be better placed to play an active role in the formation of government.

Nevertheless, even before the poll was taken in the parliamentary election of August 2015, President Sirisena announced his intention not to appoint ex-President Mahinda Rajapaksa as Prime Minister even if the UPFA led by the latter were to secure a majority of seats in Parliament.[22] He reiterated his position in this regard in a letter that he sent to ex-President Rajapaksa in which he stated thus:

“At the forthcoming elections, if the UPFA manages to reach the minimum 113 mark of seats to form a government, I believe who should be appointed as the Prime Minister is a senior member of the SLFP who so far has failed to have this opportunity.”[23]

President Sirisena hinted that in the event of elections producing a near miss for the UPFA, he might intervene to form a government but in any event he will not make ex-President Rajapaksa the Prime Minister.[24] The President’s pronouncements triggered a debate on the scope of his discretion in the appointment of the Prime Minister under Article 42, with those wanting the ex-President as Prime Minister insisting that the President has no discretion in the matter and that he is bound by British parliamentary conventions in this regard.[25]

 

British Conventions

In Britain, the convention is for the sovereign to “…invite the person who appears most likely to be able to command the confidence of the House to serve as Prime Minister and to form a government.”[26] In normal circumstances, the role of the sovereign is formal and is limited to summoning the leader of the party with the overall majority to the Palace. Where there is a hung parliament, however, she might have genuine discretion to exercise.[27] Even in Britain, the sovereign is short of guidance on how she ought to exercise her discretion in picking a prime minister out of a hung parliament. In a hung parliament, the sovereign would, nevertheless, not become involved[28] and it is left to the political parties to discuss between themselves “…to establish who is best able to command the confidence of the House.”[29] In a hung parliament the principle that the nominee should ‘command the confidence of the House’ could mean either a coalition or a minority government with outside support and operating on an agreed programme.[30] There is no requirement that the Prime Minister shall secure the support of the majority in Parliament[31] and the sovereign would not require a government to command majority support.

In May 1923, Stanley Baldwin succeeded Andrew Bonar Law as Prime Minister at a time the government he led had a majority in Parliament but, six months into his office, he sought dissolution and called for elections. In the poll that followed in 1924, he was 50 seats short of an overall majority. Baldwin did not resign and hung on as Prime Minister; he revived the convention that the Prime Minister in office is not obliged to resign and may stay in office and take his chances until a confidence vote is taken.[32] His efforts at coalition-building failed, and he was defeated by the combined opposition at the King’s speech. In the 1974 elections, no party won an overall majority; the Conservative Party led by Prime Minister Ted Heath was four seats short of Labour, although his party won slightly more votes than Labour. Ted Heath did not resign and spent the weekend after the elections trying to put together a coalition with the Liberals. Labour did not seek to challenge Heath knowing well that he would not succeed in putting together a coalition. Those advising the sovereign took the view that until he resigned Ted Heath remained the Prime Minister and that he should be given an opportunity to meet Parliament and produce a Queen’s Speech “…and see if he could get away with it.”[33] The 2010 British poll, too, resulted in a hung Parliament. It was reported at the time that there was intense wrangling between the three main parties. Labour and Conservative parties held talks with the Liberal Democrats whose support was needed if either party was to form the government. Prime Minister Gordon Brown resigned from office instead of meeting Parliament to test his support there when it became apparent that the Liberal Democrats did not wish to do a deal with Labour.

Applicability of British Conventions

British precedents seem to offer no specific solutions to the problems raised by inconclusive electoral outcomes in Sri Lanka, and the problems are not unique to Sri Lanka.[34] Being the leader of the single largest party does not necessarily mean that the leader of that party will command majority support in Parliament. If there exists in Parliament different combinations with equally credible claims of being able to secure the confidence of the majority, then the issue becomes complicated. No guidance[35] is available to the President as to the person he will have to call upon to form the government, although the President might be inclined to invite the leader of the party or a combination of parties that, in his view, would secure the support of Parliament.

If the convention is to appoint the Prime Minister from the party that won the most number of votes in Parliament through an election, then there is evidence that the President departed from this convention when he appointed Ranil Wickremesinghe as the Prime Minister after the presidential election in January 2015, although the latter did not have the backing of the majority in Parliament and there had been no parliamentary election immediately prior to his appointment. In fact, the Prime Minister led a minority government and the so-called opposition enjoyed a numerical majority in Parliament; yet the government survived for over six months without a majority and even mustered the two-thirds majority to pass the Nineteenth Amendment in Parliament.

Nihal Jayawickrama has argued that under each of the three constitutions that have been in operation since 1947, the power of appointing the Prime Minister has been vested in the head of state to be exercised solely in his judgement and discretion.[36] The constitution provided no guidance to the head of state on how he shall exercise his discretion except that the 1947 Constitution required him to exercise the powers and functions of his office in accordance with the conventions applicable in the United Kingdom.[37]

Lal Wijenayake[38] argued that the appointment depends on the opinion of the President and the discretion vested in the President in the appointment of a Prime Minister is almost absolute. He suggested that the President is not bound by British conventions because under the 1978 constitution we have a hybrid system which has features of a presidential as well as a parliamentary system of government, under which the President is not just a constitutional figurehead. As there are serious allegations of corruption, misuse of power, and criminality made against the ex-President and his family members,[39] President Sirisena was justified in excluding the ex-President for possible appointment; in other words, he said, Rajapaksa was not a fit person to be appointed as the Prime Minister before those allegations have been investigated.

Others have suggested in similar vein that the President may be entitled to appoint only an untainted candidate as Prime Minister.[40] Those who wish to see good governance taking root would be sympathetic to the idea that persons against whom there are serious allegations of financial impropriety and other wrongdoing shall not be appointed as Ministers.[41] Arguably, the same objection should hold with regard to the appointment of the Prime Minister. On the other hand, the hypothesis that the President has an absolute discretion in the appointment of the Prime Minister may not sit well with the declared objective of the good governance movement that propelled President Sirisena to power, particularly to abolish the executive presidency. It gives the President the power to actively meddle in the process of government formation and interfere with the choice of the electorate. The President’s decision must be based on predictable criteria and he must not allow his opinion to be shaped by subjective preferences, or to create that impression in the public mind. The President is also a leader of a political party and it would be difficult for him to take an objective and unbiased view. There ought to be guidance in place on how he shall exercise his discretion.

The Practice in Scotland

The process is different in Scotland where a newly elected Parliament’s first business would be to elect someone to preside over its proceedings and then to elect the First Minister by passing an investiture vote. Prospective candidates for the post will face a vote in Parliament. If, in the first round of voting, no candidate is able to secure an overall majority then a run off would follow and the candidate with the most votes (that is, a simple majority) would get the nomination as First Minister. His name would be submitted to the Queen, who would then appoint him.

In May 2007, the Scottish National Party (SNP) was returned to Parliament with 18 members short for an overall majority, yet its leader, Alex Salmond managed to run a minority government.[42] The SNP went into a confidence and supply arrangement with the Green Party, according to which the latter agreed to back the government on all no confidence motions and on the budget. On all other issues, the Greens took a position depending on their individual merits.

The advantage of the investiture vote is that it would resolve any doubts about who has the support of the majority in the House fairly quickly. It would save the sovereign from being drawn into any controversy and protect the sovereign from allegations of partisanship. The sovereign, it must be remembered, is expected to remain neutral. The Westminster practice governing the search for a government may not produce a stable government even after weeks of negotiations as the test for resolving any doubt will have to await a parliamentary vote.[43] On the other hand, an investiture vote would require Parliament to meet sooner than later.

The Institute for Government favoured the investiture vote as the process by which to determine who becomes Prime Minister and recommended its adoption.[44] The Institute’s recommendation was taken up by the Political and Constitutional Committee of the UK House of Commons and recommended for adoption in the future. The Committee said:

“An investiture vote of some form would give a clear signal that the person appointed as Prime Minister by the Queen would indeed have the confidence of the House and would be able to govern. Without that, the new appointment may be made on the balance of probability.”[45]

Not Mahinda Rajapaksa

It is the writer’s view[46] that the President’s discretion to appoint Mahinda Rajapaksa as Prime Minister was confined by the provisions in the constitution. In law, discretion is not boundless and the person in whom discretion is reposed shall first determine the limits within which he shall exercise the discretion. Often times, the enabling instrument would clearly identify those limits but there are limits which may be implied and can only be discovered by an objective reading of the entire instrument. Article 42 (4) cannot be read in vacuo and there are other provisions in the constitution that circumscribe President Sirisena’s discretion under this article.[47] When they are read together the conclusion would arise as a matter of necessary implication that President Sirisena shall not exercise his discretion in favour of ex-President Rajapaksa.

The Nineteenth Amendment disqualifies a person who has been elected twice as President from seeking election for a further term.[48] Article 42 specifies one such limit, namely that the person chosen should have the confidence of the majority of MPs, but that is not the only factor that he must take into account. As the Prime Minister may, in certain circumstances, have to act as President,[49] a person who is disqualified from being elected as President cannot be appointed as Prime Minster.[50] One such instance would be when the Prime Minister may have to act for the President when the latter falls ill or is absent from Sri Lanka.[51]

As the amendment disqualifies a person who has been elected twice as President from thereafter being ‘elected to such office by the People’,[52] can it be argued that there is no prohibition on such a person being ‘appointed’ to the office? The principal objection to a person holding the office of the President for more than two terms is that it would lead to perpetuation of power in the same person and would lead to those powers being abused. It follows that the real objection is that a person cannot be entrusted with the powers of that office. Furthermore, what cannot be done directly cannot be done indirectly; and the prohibition contemplated by Article 31(2) would apply equally to a person occupying the office by a process other than election.

The President’s Power to Remove the Prime Minister

Does the President have the power to remove a Prime Minister? Prior to the Nineteenth Amendment, the constitution provided for his removal by the President as one of the ways in which the Prime Minister’s term could come to an end.[53] This provision was repealed by the Nineteenth Amendment and it is now provided that the Prime Minister shall continue to hold office unless he (a) resigns his office by a writing under his hand addressed to the President; or (b) ceases to be a Member of Parliament.[54] Yet, for reasons that are not apparent, the constitution continues to refer to the ‘removal from office’ of the Prime Minister,[55] albeit there is no provision in the constitution that explicitly gives the President the power to remove him. On the contrary, except in the two instances referred to above, it is provided that the Prime Minister shall continue to hold office throughout the period during which the Cabinet of Ministers continues to function.[56]

Furthermore, Article 48(1) of the constitution provides for the dissolution of the Cabinet of Ministers on “the Prime Minister ceasing to hold office by death, resignation or otherwise”.  It has not been made clear as to what the circumstances are that would be caught by the words ‘or otherwise’, a catchall clause usually used by a lazy draftsman. The draftsman could have transposed into Article 48 (1) the words ‘removal from office’ which appear in article 47(2), but he did not do so. Arguably the confusion is the product of poor drafting, a result of the horse trading that went on in Parliament when the Nineteenth Amendment Bill was debated there.

The Cabinet of Ministers will continue to function even after the dissolution of Parliament until the conclusion of the general election even if Ministers may cease to be members of Parliament.[57] The Cabinet would stand dissolved upon Parliament rejecting a Statement of Government Policy or the Appropriation Bill or upon Parliament passing a vote of no confidence in the government. It follows that on the happening of any of these eventualities the Prime Minister will cease to hold office. In contrast, the President may remove a Minister from office, albeit only on the advice of the Prime Minister.[58]

The President’s’ Power to Dissolve Parliament

The President’s power to dissolve Parliament is restricted to the last six months of its life, except where Parliament itself requests dissolution by the resolution passed with the support of no less than two-thirds of MPs in support. The requirement of a special majority for a resolution requesting dissolution sets a high threshold for Parliament to cross. It makes it difficult for a President to circumvent the constitutional bar to his power to dissolve Parliament by getting a Parliament which is aligned to him to pass such a resolution. As a result, governments may find it virtually impossible to get such a resolution adopted, short of engineering a potentially politically suicidal no confidence motion against itself.

The proviso in Article 70,[59] in which two clauses have been put together, may pose difficulties of interpretation. The new provision states (emphasis added): The President may by Proclamation, summon, prorogue and dissolve Parliament: Provided that the President shall not dissolve Parliament until the expiration of a period of not less than four years and six months from the date appointed for its first meeting, unless Parliament requests the President to do so by a resolution passed by not less than two-thirds of the whole number of Members (including those not present), voting in its favour. The first clause qualifies the power that the President has under the main provision, which is that he may dissolve Parliament; the last clause beginning with the word ‘unless’ neutralises the first clause.  Thus, an occasion may arise when a majority in Parliament opposed to the President may actually wish to trigger a poll, and may succeed in getting a resolution passed with the required majority, but it would seem that the President is not be obliged to comply with such a request.

Parliament may only request its dissolution and not require it. The President, it is provided, may dissolve Parliament and the proviso inhibiting his power of dissolution states that he shall not dissolve Parliament until after the expiry of four and a half years. This could be a source of potential conflict between Parliament and the President. In the writer’s view the Nineteenth Amendment, which repealed Article 70(1) and substituted it with a new article of the same number, has removed the President’s power to dissolve Parliament on the rejection by Parliament of the Statement of Government Policy.

 

The President’s Responsibility to Parliament

The Supreme Court reiterated the proposition that the constitution did not intend the President to function as an unfettered repository of executive power unconstrained by the other organs of government. According to Article 33A[60] the President shall be responsible to Parliament for the due exercise, performance, and discharge of his powers, duties and functions. By comparison, the Cabinet of Ministers shall be collectively responsible and answerable to Parliament,[61] and that would include the Prime Minister, who after all is only primus inter pares. As a member of the Cabinet, the President, too, is answerable to Parliament but qua President he is only responsible to Parliament. Ministers sit in Parliament and are available to answer questions raised by Members but the President does not sit in Parliament and is, therefore, not available to respond to questions that may be raised by Members. Article 32 (3) of the constitution gives the President “… the right at any time to attend, address and send messages to Parliament …” It is a right that he may or may not choose to exercise without being required to attend Parliament to answer questions.

Is there a difference between responsibility and answerability? A committee of the UK House of Lords[62] considered the possibility of a distinction existing between these two concepts and, in the Committee’s view, the concepts of constitutional responsibility, accountability and answerability are all a part of the same thing; there is no constitutional difference between the terms ‘responsibility’ and ‘accountability’. It remains to be seen, for example, whether Parliament will hold the President to account for failing to follow his Prime Minister’s advice.

The Right to Information

The constitution is amended by the insertion of a new article[63] guaranteeing to every citizen the right to any information as provided for by law. The right to access information is merely spelt out in the constitution but the scope of the right awaits clarification by Parliament. The right of access is available to citizens only,[64] and access is confined to information ‘that is required for the exercise or protection of a citizen’s right.’ The information to which a citizen is entitled to have access must be ‘held by’ specified bodies or institutions, and includes information held by ‘the State, a Ministry or any Government Department’.

The amendment does not clarify whether access is available to information held by Parliament. Arguably Parliament, being an institution of the State, should fall within the article, but the Amendment is uncertain on the question whether access would be available to information held by Parliament. The term ‘State’ is not defined in the constitution. It follows from a construction of the various articles in which reference is made to the ‘State’ that it must include Parliament. The Directive Principles of State Policy are expressly stated to act as a guide to Parliament.[65] In the UK, under the Freedom of Information Act 2000,[66] a person has the right to access information held by a public authority, which is defined to include the House of Commons and the House of Lords.

Parliament does not belong to its members; it belongs to the people. The people must have access to information about the activities of their representatives, especially about what they are doing in Parliament. Media reports of parliamentary proceedings may fulfil this need to a certain extent but the people cannot rely on Parliament to inform the public about its activities. The right to information means, in effect, the ‘right to seek information’, which is guaranteed by Article 19 of the International Covenant on Civil and Political Rights (ICCPR). Members of Parliament perform a public function and are elected at great expense to the public purse. They are also responsible for authorising the expenditure of public money by the executive. Parliament and its members should be more amenable to public scrutiny and accountable to those who elected them.

Concluding Remarks

The Nineteenth Amendment that the Sirisena government delivered did not abolish the executive presidency but merely tinkered with it. President Sirisena could not muster the majority required in Parliament to carry through the promised programme of constitutional change. He could have dissolved Parliament soon after his election and appealed to the electorate to give him the necessary majority in Parliament to carry through the changes he promised.

Cynics might argue that the government’s objective in having the Nineteenth Amendment enacted was to appease the opposition and to secure its support for the government to remain in power rather than to bring about significant structural change. Not only did the government retract from its promise to abolish the executive presidency altogether but it also reneged on its pledge given to the electorate to limit the size of the cabinet to thirty.[67] Notwithstanding this numerical restriction, size does not matter in Cabinet formation in the current parliament as parliament is allowed to determine on its own accord the size of the cabinet where a national government is formed.[68]

The Nineteenth Amendment set a ceiling on the size of the cabinet, implicitly acknowledging that the country could be run with a cabinet consisting of no more than thirty ministers. There is no evidence to support the idea that a larger cabinet is required for government to be run efficiently. Restoring stability to a struggling economy does not require jumbo cabinets. Ministerial portfolios have been the carrots dangled before members to engineer their crossover to shore up governments short of sufficient seats in parliament.

The power that the President presently enjoys to assign subjects and functions and to determine the composition of the Cabinet allows him to multiply ministries without any rational basis. Whether the head of government should continue to enjoy this power is a question that ought to be given serious consideration.

It must be acknowledged that President Sirisena, in keeping with his promise to whittle down the powers of his office, has, by his words and actions, opened up space for dissent and avoided being an authoritarian president. Nevertheless, so long as the powers of the office remain intact, there is the likelihood that a future president may not be so restrained in the use of the powers of his office.

The Nineteenth Amendment has changed, to a certain degree, the balance of power between Parliament and the President. The power that the President had to dissolve Parliament after one year of its existence was a source of insecurity to Parliament and provided the President with the means to make Parliament submissive to his will. With the curtailment of that power, his ability to dictate terms to Parliament, too, has been curtailed, making the Parliament’s term more secure.

The Nineteenth Amendment has repealed those provisions of the constitution that permitted the Cabinet of Ministers to designate bills as urgent in the national interest and circumvent the normal parliamentary procedure for enacting legislation. Successive governments abused the urgent bills procedure to ram through measures without adequate discussion either as to their necessity or constitutionality. The President no longer has the power[69] to submit to the people a bill rejected by Parliament for approval at a referendum in a bid to override Parliament’s will.

Many of Parliament’s structural weaknesses remain even after the Nineteenth Amendment. Parliament has failed to perform its core functions satisfactorily.[70] Parliament has done little during the past several years except to provide the votes for approving measures introduced by the executive. Parliament became a partisan ally of the ex-president and his faction within the majority party. Following his defeat to President Sirisena it became the forum through which the ex-President continued his rivalry with those who opposed him. Parliament needs to be reinvented and made into a body that is fit for its purpose.

The dilemma posed by the continuation of the executive presidency, albeit with reduced powers, is that the powers of that office are such that they may be abused by a future president who might not be as willing as President Sirisena to voluntarily accept restraints on the powers of his office. The solution to avoid the abuse of presidential powers is not to transfer them to the Prime Minister because those powers, in the absence of sufficient checks and balances, are equally capable of being abused by a Prime Minister.

[1] See, ‘Implementing constitutional, electoral reforms: President must act decisively- Ven Sobitha’, The Island, 1st March 2015.

[2] See ‘19th Amendment President Sirisena’s proposals for Constitutional reforms’, Ceylon Today, 22nd February 2015; See ‘Draft proposals’, Colombo Telegraph, 7th March 2015.

[3] This provision was a verbatim reproduction of Clause 63 (1) of The Constitution of the Republic of Sri Lanka Bill which was presented to Parliament by G.L. Peiris MP on 3rd August 2000, when he was the Minister of Justice and Constitutional Affairs in the Chandrika Kumaratunga government.

[4] This was the position even before the Nineteenth Amendment.

[5] Not only did the JHU challenge the Nineteenth Amendment Bill in the Supreme Court but it also threatened to move amendments to the draft. The JHU leader vowed not to allow the draft to be passed in the form in which it was presented in Parliament. He was strongly opposed to the Prime Minister arrogating the functions held by the President.

[6] See e.g., ‘19A and electoral reforms run into a storm’, Ceylon Today, 22nd March 2012.

[7] According to G.L. Peiris, the amendment started as a concept paper and was discussed by the leaders of political parties. The substance of that concept paper came under criticism. Some of its provisions were omitted but later included in the Bill that was gazetted.  Parliament was specially convened on 24th March 2015, and the Bill presented by the Prime Minister. There were basic differences between the Bill that was presented and the version presented to the Supreme Court. Amendments to the gazetted Bill were presented by the Attorney General to the Counsels in Court. See G.L. Peiris, ‘19a riddled with confusions, complications and contradictions’, Daily Mirror, 3rd April 2015.

[8] The view that President Sirisena had promised only the dilution, rather than the total abolition, of presidential powers may find some support in his Manifesto, in which he had promised a new constitutional structure that “would be essentially an Executive allied with the Parliament through the Cabinet instead of the present autocratic Executive Presidential System.” He had said that he would not “touch any Constitutional Article that could be changed only with the approval at a Referendum.” Probably, this was not how his promise was interpreted by many people who supported Sirisena for the presidency.

[9] Constitution of Sri Lanka (1978): Article 43(2).

[10] Clause 43(3) of the Nineteenth Amendment Bill provided that the Prime Minister may at any time change the assignment of subjects and functions and recommend to the President changes in the composition of the Cabinet of Ministers. Following the SC’s determination it is now provided that the “President may at any time change the assignments …”

[11] The Court so held because the provision in question violated Article 4, and consequently Article 3, and therefore required a referendum.

[12] Constitution of Sri Lanka (1978): Article 46(3) as amended.

[13] Nineteenth Amendment to the Constitution Act: Section 51.

[14] Constitution of Sri Lanka (1978): Article 33A (previously Article 42) made the cabinet collectively responsible and answerable to Parliament. Cf. Articles 54-55.

[15] Constitution of Sri Lanka (1978): Articles 46(2) and 91.

[16] The alienation or transfer of executive power from the President to another body violated Article 3. The Supreme Court determined that in the absence of any delegated authority from the President, the exercise by the Prime Minister of the power referred to in these clauses would be antithetical to the constitutional scheme requiring that executive power should be exercised by the President.

[17] Constitution of Sri Lanka (1978): Article 42(3). Cf. Nineteenth Amendment to the Constitution Act: Section 51.

[18] Constitution of Sri Lanka (1978): Article 42 (4).

[19] See R. Brazier (1994) Constitutional Practice (Oxford: Clarendon Press): Ch.3.

[20] V. Bogdanor (1996) The Monarchy and the Constitution (Oxford: Clarendon Press): p.151.

[21] See ‘President seeks SLFP Parliamentarians’ opinion on National Government’, Daily News, 21st August 2015 reporting that the President appointed a committee headed by a member of parliament to sound out the views of the SLFP parliamentarians on the formation of a national government with the UNP and prepare a report based on its findings.

[22]Mahinda Rajapaksa Will Be Defeated Again: President Maithripala Sirisena’, Colombo Telegraph, 14th July 2015.

[23]Maithri Reconfirms His Stance: Mahinda Rajapakasa Won’t Be PM’, Colombo Telegraph, 13th August 2015. See for an English translation of this letter, ‘Letter by President Maithripala Sirisena to Mahinda Rajapaksa’, Groundviews, 17th August 2015.

[24] Ibid. The relevant part of his letter read: “In case, the UPFA failing to near the 113 mark and only come closer, then as the Executive President I can intervene to obtain the necessary other seats to form a government. Even in this event, who should become the Prime Minister is not you but another senior member of the party.” 

[25] G.L. Peiris argued that that nowhere in the constitution is it stated that a former President cannot become Prime Minister. Former Chief Justice Sarath Silva declared as untenable the argument that Rajapaksa is disqualified from acting as President simply because he has already been elected twice as the President.

[26] See UK Cabinet Office (2011) The Cabinet Manual: para 2.8.

[27] Bogdanor (1996): p. 89.

[28] Cabinet Manual: para 2.13

[29] Ibid.

[30] Bogdanor (1996).

[31] Ibid: p.53.

[32] The sovereign might not have given Baldwin a second dissolution had he asked for it.

[33] P. Hennessy (2000) The Prime Minister (London: Penguin): p. 23.

[34] Article 75(1) of the Indian Constitution provides that the Prime Minister shall be appointed by the President. The1989 elections to the Indian Lok Sabha produced no single party with an overall majority, but as Congress was the single largest party in the House, President Venkataraman invited Congress party leader Rajiv Gandhi to form a government but the latter declined. The President thereafter invited V.P. Singh, the leader of the National Front, to form the government. The May 1996 elections resulted in a hung parliament with the BJP winning the most number of seats. The then President appointed the leader of the BJP Atal Bihari Vajpayee as Prime Minister and was given two weeks to prove that he had majority support in Parliament but, unable to secure the support of the majority in Parliament, Vajpayee resigned rather than face a confidence vote.

[35] When the Indian Constitution was being drafted, its framers proposed to have written instructions in place to guide the Indian President, including the instruction that he shall “appoint a person who has been found by him most likely to command a stable majority in Parliament as the Prime Minister.” The Assembly eventually dropped this idea because it was felt that the proposed instructions were likely to mislead the President.

[36] N. Jayawickrama, ‘The Prime Ministerial Conundrum’, Colombo Telegraph, 16th August 2015. In Dr Jayawickrama’s view, the President will have to identify a leader to head a government that would lend support for his ‘yahapalanaya’ programme: “That is his constitutional right and duty. If he is unable to do so, the Constitution in its present form does not offer a solution except resignation from the office of president, in which event parliament will elect his successor.”

[37] Constitution of Ceylon (1947): Section 4 (2), which provided: “All powers, authorities and functions vested in Her Majesty or the Governor-General shall, subject to the provisions of this Order and of any other law for the time being in force, be exercised as far as may be in accordance with the constitutional conventions applicable to the exercise of similar powers, authorities and functions in the United Kingdom by Her Majesty”

[38] L. Wijenayake, ‘Can Mahinda become the Prime Minister’, Colombo Telegraph, 30th July 2015.

[39] Serious allegations against the ex-President and his family members are being investigated by the Bribery or Corruption Commission, Financial Criminal Investigation Division (FCID), and the Presidential Commission of Inquiry to Investigate and Inquire into Serious Acts of Fraud, Corruption, and Abuse of Power, State Resources and Privileges (PRECIFAC).

[40] See on this R. Philips, ‘Can the President insist on appointing only an untainted MP as PM?’, Colombo Telegraph, 9th August 2015.

[41] Ven. Muduluwave Sobhita Thero called upon the Prime Minister not to appoint anyone with allegations against them to the Cabinet of Ministers in the new government. See ‘Sobhitha Thero urges Ranil Appoint a clean Cabinet’, Ceylon Today, 20th August 2015.

[42] The SNP had 47 seats – one more than Labour – in the Scottish Parliament consisting of 129 members.

[43] Six weeks had elapsed between the date of the election and the no confidence vote that led to the defeat of Stanley Baldwin’s government in 1923-24.

[44] A. Paun & C. Mitchell (2015) Westminster in the Age of Minorities (London: Institute of Government): p.2.

[45] UK House of Commons Political and Constitutional Reform Committee, Government Formation Post-Election, 26th March 2015, HC 1023 2104-15: para 61.

[46] R. Hameed, ‘Mahinda Rajapaksa cannot become Prime Minister’, Colombo Telegraph, 1st August 2015.

[47] Cf. Constitution of Sri Lanka (1978): Article 47 (3) as amended by the Nineteenth Amendment. If the Prime Ministership were to become vacant during the period intervening between the dissolution of Parliament and the conclusion of the general election, the President may appoint one of the ministers in the Cabinet as Prime Minister. It would, of course, be anomalous to provide that his appointee shall command the confidence of Parliament at a time when Parliament stands dissolved. It must be said that this provision is rather poorly drafted. What do the words ‘the Cabinet of Ministers shall continue to function with the other Ministers of the Cabinet of Ministers as its members’ in Article 47(2) mean?

[48] Constitution of Sri Lanka (1978): Article 31(2) as amended by the Nineteenth Amendment: “No person who has been twice elected to the office of President by the People shall be qualified thereafter to be elected to such office by the People.” The importance of bringing about peaceful change through elections is recognised. It is extremely difficult to dislodge incumbents from office, and it is unhealthy for a democracy if power were to remain in the same hands even through the electoral process. The Nineteenth Amendment aims to eliminate the advantage that an incumbent generally enjoys at elections. Indeed, one of the reasons for limiting the presidential term is the advantage that an incumbent enjoys at elections. Incumbents have access to the vast resources of the state, which usually tend to be abused during elections. Incumbents have control over the agencies of government, enjoy an advantage in raising funds and have access to the media over and above his challenger. Incumbents also get to choose the timing of the poll.

[49] See e.g., Constitution of Sri Lanka (1978): Articles 31(3), 39 (2) and 40 (1).

[50] R. Hameed, ‘Mahinda Rajapaksa cannot become Prime Minister’, Colombo Telegraph, 1st August 2015.

[51] Constitution of Sri Lanka (1978): Article 37(1).

[52] Ibid: Article 31 (2).

[53] Ibid: Article 47 (2).

[54] Ibid: Article 46 (2) as amended by the Nineteenth Amendment.

[55] Ibid: Article 47(2).

[56] Ibid: Article 46 (2) as amended.

[57] Ibid: Article 47(1) as amended.

[58] Ibid: Article 47 (3)(a).

[59] Ibid: Article 70 (1).

[60] Previously in Article 42.

[61] Constitution of Sri Lanka (1978): Article 42(3).

[62] The House of Lords Constitution Committee, The Accountability of Civil Servants (HL 2012-13, 61): paras. 3-17.

[63] Constitution of Sri Lanka (1978): Article 14A.

[64] Cf. UK Freedom of Information Act 2000.

[65] Constitution of Sri Lanka (1978): Article 21 (1) and Articles 1 to 4.

[66] See UK Freedom of Information Act 2000: Schedule 1, Part 1.

[67] The Constitution of Sri Lanka: Article 46(1): “The total number of– (a) Ministers of the Cabinet of Ministers shall not exceed thirty; and (b) Ministers who are not members of the Cabinet of Ministers and Deputy Ministers shall not, in the aggregate, exceed forty.”

[68] The Constitution of Sri Lanka: Article 46(4).

[69] See Constitution of Sri Lanka (1978): Article 85(2) which is now repealed by the Nineteenth Amendment.

[70] On this see further R. Hameed, ‘Parliament in a Presidential System’ in A. Welikala (2015) Reforming Sri Lankan Presidentialism: Provenance, Problems and Prospects (Colombo: Centre for Policy Alternatives): Ch. 2.

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