Don’t throw the baby with the bathtub

President Gotabaya Rajapaksa had stated in an interview with “The Hindu” during his visit to India between November 29 and 30 that if his party, the Sri Lanka Podujana Peramuna(SLPP) got a two-thirds majority in parliament at the forthcoming parliamentary elections he would take action to scrap the 19th Amendment to the Constitution which has created a mess in governance, and much more so in party politics.  

Before he stated so, former President Maithripala Sirisena who was one of the architects of the 19th Amendment also wanted it to be got rid of. While speaking at the 40th anniversary of the National Housing Development Authority at the BMICH on June 23 this year he said that both the 18th and 19th Amendments -- two pieces of legislation he had wholeheartedly supported - have to be rejected.  

Apart from the former President having campaigned for this piece of legislation and played a pivotal role in getting it passed in Parliament in April 2015, unless the SLPP which President Gotabaya Rajapaksa represents had extended its support to the former so-called “yahapalana” government to have the two-thirds majority vote, the 19th Amendment would not have become a part of the basic law of the country.  

Both the former and present Presidents have personal reasons to reject the 19th Amendment -- both found themselves redundant in most cases due to this law. President Sirisena cruelly experienced the impact of it when he wanted to sack Prime Minister Ranil Wickremesinghe and replace him with former President Mahinda Rajapaksa in October last year and later when he wanted to dissolve Parliament.  

President Gotabaya Rajapaksa too would have been in a fix in appointing the new Cabinet, unless the UNP decided to resign from the government allowing him to appoint his board of ministers, as the 19th Amendment provides for the President to consult the Prime Minister when appointing ministers. And the law places a lot of restrictions on the President in implementing his executive powers.   

The 19th Amendment was brought in with good intent after the country had unpleasant experience with the unrestricted powers of past executive Presidents. It was introduced to curtail as many powers as possible vested in the President since the Supreme Court had ruled that the abolition of the executive presidency as promised by the then Opposition’s common candidate Maithripala Sirisena needed a Referendum. Against this backdrop the UNP while re-establishing through the 19th Amendment the Independent Commissions that were abolished by former President Mahinda Rajapaksa, very craftily built a fortress around the Prime Minister, while tying President’s hands in respect of day-to-day Governance.  

The President was deprived of the power to unseat the Prime Minister even in case of a clash between him and the latter while he had to forfeit his power to dissolve Parliament in one year after its first meeting. He had to put up with any chaotic situation, as the case had been during the last government, until the expiry of four and a half years out of the Parliament’s five-year term.  

It is so muddled that it prevents the President from holding any ministerial portfolio including that of defence, while providing for him to be responsible for the subject of defence and to be the head of the Cabinet. The 19th Amendment created two equal power centres in the form of President and Prime Minister, paving way for political tug-o-war between the two.  

But at the same time it contains a series of progressive democratic reforms as well such as provisions for independent commissions, restrictions on the number of ministers and the right to information. The independent commissions came into being through the 17th Amendment in 2001 as an answer to the long-standing demand for the abolishing of executive Presidency.

That amendment did not create a chaotic situation as the 19th Amendment has done. The independent commissions were scrapped by the 18th Amendment and reintroduced by the 19th Amendment again for the same reason.   
19th Amendment is a bathtub with a baby in it. You should not throw the baby out with 
the bathwater.