People’s Supremacy and 19th Amendment

The current instability in the country is due to the creation of two power centres under 19A

The supremacy of the people stands as the cornerstone of any democracy and the Constitution of Sri  Lanka states in its 1st Chapter that ‘In the Republic of Sri Lanka sovereignty is in the people’.  
In view of the current controversy over the 19th Amendment to the Constitution, the issue of supremacy of the people needs a thorough study. When the first draft of the 19th Amendment to the Constitution was sent to the Supreme Court to verify its constitutional compatibility, the Supreme Court ruled that certain clauses of the 19th Amendment would require a two-thirds majority in Parliament and the people’s approval at a national referendum. It is not clear if all those doubtful clauses were removed before adopting the 
19th Amendment.  

General Secretary of Sri Lanka Freedom Party (SLFP) Dayasiri Jayasekera said that due to different phrases used in Article 43 of the 19th Amendment relating to the appointment and management of the Cabinet of Ministers, there is a state of confusion created, while also taking away the powers the Executive President. He added that it has left the country in a leaderless state. President Sirisena too stated that the 19A has created two power centres and was detrimental to the government performances and decision making.  
There are also serious concerns over the term of office of the incumbent President, despite President Sirisena already receiving a Supreme Court Interpretation that the term is for five years. The commencement and end of the five-year term is not clear as per the Articles in the Amendment. Furthermore, the fact remains that the voters elected President Sirisena for a 6-year term on January 8, 2015. 

"Supreme Court held that the 19A was applicable to the incumbent President. If so, it must clarify the date of commencement of the Presidential term as the 19A became effective on May 15 2015, while Sirisena took his oaths as President on January 9, 2015"

The Executive President’s powers to dissolve parliament, reduction or increase of his term of 6 years are fundamental issues and many legal luminaries are of the opinion that any amendment to such clauses would require a people’s verdict.   
Recently, Prof G L Peiris, President of Sri Lanka Podujana Peramuna (SLPP) and Dr Jayampathi Wickremaratne, the architect of 19th Amendment, said that President Sirisena could not seek Supreme Court interpretation on the commencement of the five-year term under the 19th Amendment to the Constitution. The Supreme Court earlier held that the 19th Amendment was applicable to the incumbent President. If so, the Supreme Court must clarify the date of commencement of the Presidential term as the 19th Amendment became effective on 15th May 2015 after the Speaker of Parliament placed his signature on the Amendment, while Maithripala Sirisena took his oaths as President on 
January 9, 2015.  

Jayasekera, in his media briefing pointed out that, “In one instance the Article says, the Cabinet should be appointed in consultation with the Prime Minister, and then the next Subsection uses the word advise, while the third Subsection uses the word ‘in concurrence’, which is confusing, a Constitution should be clear and should not have any ambiguities. There is a state of confusion whether the PM should be informed or not.”   
SLFP General Secretary, who is a lawyer, said that changes to the Constitution that should require a referendum have also been included in the 19th Amendment. Such fundamental changes include the trimming of powers of the President and the Executive’s powers to dissolve Parliament. Such curtailment without a national referendum has resulted in the creation of the powerful Prime Minister vesting him with the powers of the Executive President. The legal luminaries question this as this was done without taking into consideration the people’s supremacy enshrined in the Constitution.  

"The Executive President’s powers to dissolve parliament, reduction or  increase of his term of 6 years are fundamental issues and many legal  luminaries are of the opinion that any amendment to such clauses would  require a people’s verdict"

Although President Sirisena voluntarily wanted to reduce his term to five years, he cannot do that without the concurrence of the people. Similarly, no amendment could be made to the Constitution to curtail the period and powers of the Executive President without the concurrence of the people. Any such act would be a violation of the people’s supremacy enshrined in 
the Constitution.  
Describing the 19th Amendment, Dayasiri Jayasekera said:
 “Before the Amendment, Ranil Wickremesinghe was the passenger of a bicycle that someone else was pedaling, the Amendment switched seats and Ranil Wickremesinghe now pedals and President Maithripala Sirisena now sits on the bar of the bicycle.”   

President Sirisena attributed the differences between him and the Prime Minister to the 19th Amendment that created two power centres and not due to any personal animosity. The power to appoint Prime Minister and to dissolve parliament was with the Executive President since the inception of the 1978 Constitution. Apart from restoring the presidential term limit and removing the powers of dissolution and dismissal, the 19th Amendment has also reduced the presidential term of office and removed the President’s legal immunity and his/her absolute power over appointments and subjected them to review and recommendations by the Constitutional Council. These are positive accomplishments of the 19th Amendment, for which President Sirisena played a major role.  

"Although the President voluntarily wanted to reduce his term to five years, he cannot do that without the concurrence of the people. "

The current instability in the country is due to the creation of two power centres under the 19th Amendment, without the approval of the people. Hence, the Supreme Court will have to review the 19th Amendment once again to see if it is compatible with the Constitution. There is no divine hand to intervene in these matters. The judges are also human beings and any human being can make a mistake. What is essential is to reexamine the Amendment and rectify errors if any.