Sri Lanka: The Nineteenth Amendment to the Constitution - from start to finish
The Sri Lankan Parliament passed the Nineteenth Amendment to the Constitution Act on 28th April 2015, but due to the large number of committee stage amendments, it was certified into law by the Speaker only on 15th May. In the January presidential election, President Rajapaksa’s former Minister Maithripala Sirisena secured a surprise win as the common opposition candidate on the promise of implementing a 100-day programme of constitutional and governance reforms, after which parliamentary elections were to be held. The drafting process of the Nineteenth Amendment was chaotic, sometimes fractious, and did not meet either its own deadlines or contemporary benchmarks of transparency and public consultation. Upon election Sirisena appointed Ranil Wickremesinghe, the then Leader of the Opposition, as his Prime Minister at the head of a minority government, which was forced to accommodate not only differing views within a politically mixed ruling coalition but also the opposition that continues to hold the parliamentary majority. The President was thus left in the unenviable position of having to persuade his former party colleagues to support his reforms, many of whom still loyal to the deposed Rajapaksa. The President, however, has shown an admirable commitment to his electoral mandate to reform the presidency in sustaining consultations within his party, and in cooperation with PM Wickremesinghe, the necessary two-thirds majority was eventually secured in Parliament. To broker consensus on the presidential reforms contemplated by the Nineteenth Amendment, one key concession was to introduce electoral reforms demanded by the opposition in the hope of winning the forthcoming parliamentary election under the altered rules. This is now to be embodied in the Twentieth Amendment to the Constitution currently under negotiation.
The compromise reflected in the Nineteenth Amendment was achieved through a centrist policy that rejected both the Rajapaksa loyalists, who wanted to retain the hyper-presidential state, and others who wanted an early election to sweep away the Rajapaksa loyalists in Parliament. This all-party consensus should notionally strengthen the durability of the reforms. It also signals the return to a more democratic form of constitutional politics, when contrasted with the authoritarian efficiency of the Rajapaksa regime in passing the ruinous Eighteenth Amendment, which abolished the two-term limit on presidential elections, within ten days. The final text has disappointed those Sri Lankans who wanted the abolition of executive presidentialism. Yet, the Nineteenth Amendment reflects what is politically possible within the current balance of power, and the government has indicated that it will seek a fresh mandate for a new constitution in the forthcoming parliamentary election.
The Main Changes of the Nineteenth Amendment
The Nineteenth Amendment has introduced a number of long-overdue reforms. The presidential term is reduced from six to five years and the two-term limit is restored, although the incumbent can seek re-election after four years in the first term. Parliament’s term is also reduced to five years. Significantly, the President can no longer dissolve Parliament until the expiration of four and a half years of its term, unless it requests so by a resolution of a two-thirds majority. These provisions restrict presidential discretions and strengthen the separation of powers by establishing more or less fixed presidential and parliamentary terms. Presidential immunity from suit has been marginally abridged by extending the Supreme Court’s fundamental rights jurisdiction to official acts of the President.
Another positive feature is the repeal of the ‘urgent bill’ procedure. Previously, a Bill endorsed by the Cabinet as being urgent in the national interest could be passed by a fast-tracked process, which attenuated the scope for pre-enactment challenges in the Supreme Court. This procedure has been frequently abused, especially in using it to pass manipulative constitutional amendments. Similarly, a minor improvement is that all Bills are now required to be gazetted not seven but fourteen days before the start of the legislative process, which again should improve the scope for legal challenges.
The Amendment restricts the number of Cabinet Ministers to thirty, as well as limits the number of other Ministers, although if the first and second largest parties represented in Parliament come together to form a government, the size of the Cabinet could be enlarged through an Act of Parliament. This strengthens Parliament’s independence by limiting the scope for the co-option of MPs through patronage appointments and vote bloc clientelism. This practice was taken to preposterous levels by the Rajapaksa regime but it has been a major problem of Sri Lankan political culture for much longer. Addressing another aspect of the excessive politicisation of law enforcement during the Rajapaksa era, it is now expressly provided that the Attorney General and the Inspector General of Police must retire upon reaching the age of sixty.
Freedom of information has been added to the Fundamental Rights Chapter, making it a judicially enforceable right. Incidentally, the 100-day programme also proposed freedom of information legislation to provide the institutional apparatus for the exercise and promotion of the constitutional right to information. While much progress was made in the drafting of a Right to Information Bill, this has fallen victim to the political exigencies of passing the Nineteenth Amendment that overtook all else in the 100-day programme. The government has assured that this legislation will be enacted by the next Parliament but it demonstrates again the lack of forethought and realism in the design of the programme whilst in opposition.
Perhaps the strongest feature of the Nineteenth Amendment is the de-politicisation framework that is established with the Constitutional Council and the independent commissions. This restores and adds to the Seventeenth Amendment framework that was repealed or weakened by the Eighteenth Amendment. The Constitutional Council has two functions: it recommends presidential appointments to the independent commissions and it approves presidential appointments to high posts such as superior court judges. It was originally proposed that the Council would comprise of a majority of independent eminent persons along with the PM and the Opposition Leader under the chairmanship of the Speaker. However, in the parliamentary debate, the opposition claimed that a majority of civil society members would render the Council democratically unaccountable. The compromise was to allow for a composition of seven MPs and three independents. While this weakens the apolitical character of the Council, it is nonetheless a multiparty body and therefore can be expected to be politically non-partisan. As Presidents have refused to follow the Council’s recommendations under the Seventeenths Amendment, it is now provided that if the President has not acted pursuant to recommendations, then such appointments are deemed made by operation of law after fourteen days. Independent commissions to oversee the public service, judiciary, the police, elections, and human rights are all restored. The bribery and corruption commission has been given constitutional standing and its powers have been enhanced. New commissions on audit and procurement have been introduced. These are all indubitably progressive institutional reforms; however, it remains to be seen whether they are robust enough to overcome inevitable resistance from vested interests to engender professionalism, independence, and capacity in the public sector, and to reshape a decrepit political culture with a high tolerance for authoritarianism and corruption.
There are also a number of specific provisions that have largely escaped attention but seem to be designed to prevent a Rajapaksa revival. Mahinda Rajapaksa himself is eliminated from presidential politics by the bar on presidential office for persons who have served two terms. His brother Gothabhaya has recently been mooted as a prospective parliamentary candidate. The autocratic former Defence Secretary is widely feared and even loathed in many quarters, but he perhaps retains a heroic status among the rank and file of the armed forces for his role in finishing the war against the Tamil Tigers and his zealous commitment to militarising large swathes of the public sector. But he is a Sri Lankan as well as American citizen and now dual citizens are disqualified for standing in parliamentary elections. President Rajapaksa’s heir apparent is his 29-year old son Namal, an MP representing the family stronghold of Hambantota. Whether or not designed with him in mind, the age requirement for presidential candidates has now been raised from thirty to thirty-five, which effectively disqualifies him from contesting the next presidential election in 2020.
Presidentialism: Reform or Abolish? The Tussle over the ‘Advice Clause’
What eventually became the Nineteenth Amendment went through a number of schemes between January and April. The process was marked by a lack of transparency and public information, while the governing parties tried to resolve their own differences whether to abolish or merely reform the executive presidency. The struggle between the ‘abolitionists’ and the ‘reformists’ ended with the latter prevailing, because their view was more in line with what the opposition parliamentary majority was willing to support. Given the centrality of the institution to the structure of the 1978 Constitution, the abolitionists were perhaps too optimistic in thinking that deeper changes to the presidency could be made without a referendum. The main disagreement centred on the ‘advice clause’. If the abolitionists succeeded in establishing the principle that the President always acts on the advice of the Prime Minister, then this would transform the presidential 1978 Constitution into a parliamentary constitution; which was why the reformists were so intent on ensuring that the advice clause was either removed or so circumscribed in its application as to be innocuous.
The initial scheme of the reforms was embodied in a Concept Paper, which was never officially published but was leaked in February. This conceptual scheme was also rendered into an unofficial legal draft, again never properly published but also leaked. This underwent further changes before the Nineteenth Amendment to the Constitution Bill was officially gazetted on 13th March. The provisions of the gazetted Bill were challenged before the Supreme Court, which heard the petitioners and the Attorney General over three days in early April. The Court’s determination was then communicated to the Speaker, who informed Parliament of its findings on 9th April. An unusual feature of the judicial proceedings was that the AG had to inform the Court, on behalf of the government, of a series of amendments to the text already before Court. The Cabinet had earlier agreed amendments in response to criticisms of the gazetted Bill. The Court therefore had to make its determination on whether or not the Bill required a referendum not only on the basis of the published Bill but also the amendments proposed by the government through the AG. A memorandum containing the list of changes that the government intended moving at the committee stage of the legislative process was, yet again, not officially published but leaked.
The Bill was taken up for debate on 28th April and was passed on the same day. It is remarkable how Sri Lankan parliamentary procedure allows a constitutional amendment to be passed within a day, with the committee stage being a Committee of the Whole House. This not only precludes consultation, reflection, and line-by-line scrutiny, but also encourages MPs to ‘play to the gallery’. There are therefore four key stages to this unnecessarily labyrinthine process that require examination: the Concept Paper, the Gazetted Bill, the Supreme Court determination, and the final text of the Nineteenth Amendment Act.
The Concept Paper
The Concept Paper outlined an unusual hybrid system of government that would nevertheless be effectively an abolition of executive presidentialism. In this framework, the President would be the head of state, but not the head of government, with the Prime Minister as the head of the Cabinet. Crucially, the President would be required to act on the advice of the Prime Minister, or other Minister authorised by the PM, except in the appointment of the Prime Minister or other specific acts, in which he acts in his own discretion under the constitution. By contrast, in a draft constitutional amendment bill the Jathika Hela Urumaya (JHU) party published in late 2014, the President would have a more substantive role in government, including a special responsibility for defence and ensuring the territorial integrity of the state. The JHU is a small but (disproportionately) influential party of Sinhala-Buddhist nationalists, who are part of the current government, having prominently supported the common opposition after abandoning Rajapaksa in late 2014. Its Cabinet Minister Champika Ranawaka has led the anti-abolition campaign within the government since January. These competing views about the form of government, which reflect much deeper ideological differences on fundamental issues such as the nature of the state and attitudes to the accommodation of minority claims, gave rise to serious and public disagreements between the coalition partners when the contents of the Concept Paper became known.
The cumulative effect of the reforms outlined in the Concept Paper was the establishment of what is effectively a parliamentary executive with a titular presidency. However, the holdover from the pre-existing framework was in the mode of election of the President, which was by a state-wide direct election. This was unusual to the extent that titular Presidents are commonly and more appropriately elected by Parliament, and where relevant sub-state legislatures, rather than by direct election. Changing the mode of election was reserved for the next Parliament. The JHU proposal also envisaged a direct election, but at least this was more consistent with the reformed but still presidential system that it sought.
The Gazetted Bill
The Gazetted Bill also involved a significant reduction of presidential powers, proposing the PM to be the head of the Cabinet and the President to act on his advice in the appointment and dismissal of Ministers. However, the language of the draft clauses were less expansive than the Concept Paper. The provision that the President ‘always’ acts on advice was absent, and instead a more conventionally Gaullist formulation of the President acting on advice on some matters and in his own discretion in others was included. This was therefore a continuation of presidentialism in principle, albeit with the 1978 Constitution’s more egregious features removed. But the proposed dyadic executive assumed a democratic culture of governance – which for example can accommodate ‘cohabitation’ – that has been demonstrably absent in Sri Lanka in the past. However, the JHU found this too to be too radical a diminution of the presidency and consequently the government undertook to further dilute the powers of the Prime Minister when the Bill was taken up by the Supreme Court.
The Supreme Court Determination
The Supreme Court disagreed with petitioners who argued that any of the changes proposed in the Bill would be unconstitutional because they would take executive power away from the President, in whom it is solely vested, thereby violating the basic structure of the constitution. On the contrary, the Court noted that executive power was exercised by the President as well as the Cabinet even under the unreformed constitution. Executive power was to be understood as an aspect of the sovereignty of the people, not something that was exclusive and personal to the individual holding the office of President. While therefore executive power may be delegated by the President, or divided between actors in its exercise, the constitution nonetheless required that the President held the ultimate executive authority.
The provisions of the Bill seeking to make the Prime Minister the head of the Cabinet, and exercising the attendant powers without recourse to the President, would therefore be unconstitutional and would need a referendum to be passed, but only to the extent that the President was excluded from the exercise of these executive powers by the Prime Minister and Cabinet. Presumably then, as long as the President remained the ultimate authority, the exercise of executive power ‘on the advice of’ the Prime Minister or Cabinet would not be unconstitutional. In other words, the implication of the Court’s reasoning seemed to be that even if the President is in effect largely titular in the day-to-day exercise of executive power – because he always acts on the advice of Ministers in the running of the government – that would not be unconstitutional provided that those powers are exercised for and on behalf of the President.
This meant that the government had to remove these provisions, as for political reasons it wished to pass the Nineteenth Amendment without a referendum. These changes, among others, were done at committee stage when the Bill returned to Parliament. The opposition majority was willing to concede much less however, and consequently, some language from the old constitutional provisions was reintroduced into the text of the Nineteenth Amendment.
The Final Text of the Nineteenth Amendment
Given the JHU opposition within the government, the Supreme Court opinion on the necessity of a referendum and the political opposition of the parliamentary majority, the expansive promise of the Concept Paper was significantly cut down.
The President remains head of state, head of the executive and of the government, and the commander-in-chief. He is a member and the head of the Cabinet, which is in turn responsible to Parliament for the direction and control of government. The President appoints the MP most likely to command the confidence of Parliament as the Prime Minister. And the President determines the number of Cabinet Ministries, the assignment of subjects to Ministers, and retains the power to appoint and dismiss Ministers. In relation to all these powers, the President needs to only consult the Prime Minister when he deems it necessary. The advice clause is retained in a very minimal way, where the President is required to act on the advice of the Prime Minister only in identifying specific MPs for appointment as Cabinet and other Ministers. It is difficult to discern why this requirement was retained when otherwise, all the old presidential discretions in respect of appointments and the direction and control of the Cabinet have been restored.
Where does this leave Sri Lanka?
The 1978 Constitution after the Nineteenth Amendment remains strongly presidential as the Prime Minister’s role has been enhanced only marginally, and even this will depend on the President’s willingness to co-operate with the PM. The new limits placed on presidential power, however, effect a constitutional regime change, and if well implemented, would ensure that the landmark presidential election of January 2015 was not a mere change of government for the continuation of business as usual. Under the Rajapaksa regime, power was concentrated in a ruling elite and while it was populist in its methods of political mobilisation through the invocation of a majoritarian nationalist ideology, this did not mean access to political power for citizens at large. This regime was voted out in January on the common opposition’s pledge to fundamentally change the structures, rules and procedures of the Sri Lankan state. While retaining the presidential character of the constitution and the state, the Nineteenth Amendment has established a more even structural balance between the three organs of government and a thoroughgoing institutional framework for good governance.
This process, and the evolution of the advice clause especially, highlight several characteristics of the ‘Sri Lankan way’ of constitutional reform. Constitutional historians would see path dependent resonances between the Nineteenth (and Twentieth) Amendment process and constitutional reform efforts of the past, especially the elitist nature of the decolonisation process. The modern Sri Lankan state was created by a small group of local leaders, constitutional advisors, and colonial officials that seems to have established a tradition with little space for mass political mobilisation, public deliberation in constituent assemblies, and open negotiation of group interests. While the recent reform process has balanced competing group interests within Parliament and government to a greater extent than in the 1940s, it nevertheless was an exercise in representative rather than participatory democracy. Even though the presidential campaign of 2014/5 engendered a remarkable societal discourse on democracy and good governance, public involvement in the process of constitutional reform stopped abruptly on the day of the election. No effort was made even to share evolving documents with the public, let alone put in place a framework of public consultation, maintaining the elitist nature of Sri Lankan constitution-making. Secondly, while a wide political consensus was built for the democracy reforms, consensus is unlikely to extend to the state restructuring required to address Tamil and other minority demands for devolution and power-sharing. To address these issues in the new constitution the government seeks to promulgate in the next Parliament, it will need to spearhead a far more rigorous consensus-building process across ethnic communities. Thirdly, the significance of personalities in Sri Lankan politics continues to extend to constitutional change. While deeper philosophical differences about presidentialism and parliamentarism between abolitionists and reformists played a part, it is clear that the eventual compromise was decided more in light of how Sirisena and Wickremesinghe might work together in the future.
The Nineteenth Amendment represents an incremental step in the right direction in democratising the Sri Lankan state. It would have been desirable to cut back presidentialism further but the Amendment achieved what is politically possible in the present. It is strong in establishing a credible framework for de-politicisation but its full potential can only be realised through meaningful implementation. The process of its enactment was convoluted and lacked public involvement. Nonetheless, the substantive reforms and the unruly multi-polarity of political views that characterised the process signifies a return of Sri Lankan politics to an older and more democratic mould, after the interlude of the Rajapaksa regime in which populism, nationalism, and authoritarianism retarded Sri Lanka’s constitutional development.
Dr Asanga Welikala is ESRC Teaching Fellow in Public Law at Edinburgh Law School and Associate Director of the Edinburgh Centre for Constitutional Law. He is also a Senior Researcher of the Centre for Policy Alternatives (CPA), Sri Lanka.