Decks cleared for the full revival of 19A

After the flight of President Gotabaya Rajapaksa from Sri Lanka, gave the opportunity to parliament to elect Ranil Wickremesinghe as the Sri Lankan President. The chances of the 19th Constitutional Amendment (19A) being restored have brightened. Even if an opposition leader is elected President on July 20, he is unlikely to shelve the long-standing project of all parties to reduce the powers of the Executive President and enhance the powers of parliament, which is what 19A aims at. 

The 19A, which was enacted in 2015, but repealed in 2020, had enhanced the powers of parliament and pruned the powers of the Executive President. But the 20th Amendment (20A), which replaced it, brought back the powers of the President with a bang. However, now, the scenario has completely changed. With the ignominious exit of Gotabaya Rajapaksa, there is no one to fight for the retention of the draconian powers of the Executive Presidency. President Wickremesinghe was a strong votary of parliament’s supremacy over the Presidency. In fact, he was the originator and author of the 19A when it was mooted and passed.    

In his address to parliament on July 15, as Acting President, Ranil Wickremesinghe spoke about his plan to re-enact the 19A. He said: “The people of the country expect a change in the political system. An important factor for this change is the full implementation of the 19th Amendment to the Constitution. Therefore, I have started a program to bring forth the necessary drafts to Parliament to fully re-implement the 19th Amendment.” 

With the ignominious exit of Gotabaya Rajapaksa, there is no one to fight for the retention of the draconian powers of the Executive Presidency. President Wickremesinghe was a strong votary of parliament’s supremacy over the Presidency. In fact, he was the originator and author of the 19A when it was mooted and passed

Earlier, on May 29, he had highlighted the flaws in parliament’s functioning to make a case for the return of the 19A. He said: “The functioning of parliament has been paralyzed due to the weakening of parliamentary powers by the 20A. The Executive has been given more powers. The main allegation today is that parliament has not acted to prevent the economic crisis.  There is an allegation that even though the ruling party had a majority in parliament they neglected the work of parliament. Everything was systematically controlled by the 
Cabinet Ministers.”

“We need to change the structure of parliament and create a new system by combining the existing system of parliament or the Westminster system and the system of State Councils. Parliament can participate in governing the country. First of all, the existing laws need to be strengthened in order to give those powers to parliament in the exercise of monetary powers. At present there are three Committees on government finance. The three Committees are the Public Finance Committee, the Accounts Committee and the Committee on Public Enterprises. The former leader of the House and Prime Minister-elect Dinesh Gunawardena, had made several proposals to strengthen the powers of these three Committees.”
The then acting President Wickremesinghe then went on to suggest that “subject experts”, the youth, including the agitating youth of the ‘GotaGoGama’ movement, should also be included in the 15 planned committees. 

Draft 22A 

Subsequently, a draft designated as the 22nd Amendment 22A that had been prepared jointly by President Gotabaya Rajapaksa, former Premier and incumbent President Wickremesinghe and Justice Minister Wijedasa Rajapakshe, was gazetted. When passed it was to be entered in the constitution as the 21A. But the political turmoil which followed prevented the government from taking further steps in this regard. 
Under the changed circumstances, the draft will undergo changes. And more drafts will be called for, as Wickremesinghe hinted on July 15. 

The Executive Presidential system, with a powerful President, cannot be changed without a referendum, as the Supreme Court has ruled. But there is no difference of opinion on the need to curtail the powers of the Executive President and increase those of parliament. When he was the Acting President, he was keen on establishing a diluted Presidency. Therefore, a revival of 19A as 21A is a distinct possibility. 
The gazetted draft titled 22A would give some idea of what the new 19A will look like.    

As per the Draft 22A, an independent Constitutional Council (CC) will replace the Parliamentary Council of the 20A. The CC’s nominations will be necessary for high offices such as Attorney General, the Governor of the Central Bank, the Auditor General, the Ombudsman, and the Secretary General of parliament. The CC will appoint the Chairmen and members of the various Independent Commissions (ICs) which would make key appointments and oversee the work of sectors assigned to each. 
The Independent Commissions are: The Elections Commission, Public Service Commission, Police Commission, Judicial Commission, Finance Commission, Bribery and Corruption Commission, Delimitation Commission, Human Rights Commission, Audit Service Commission and the National Procurement Commission.

The CC comprises the parliament Speaker (who will be its chairperson), the Prime Minister, the  Leader of the Opposition, one Member of Parliament (MP) appointed by the President, 5 MPs, comprising one ruling party MP, one MP from the party of the Leader of the Opposition, three non-MPs appointed by the Speaker in consultation with the Prime Minister and the Leader of the Opposition and approved by a majority of MPs in parliament, and one MP from a party other than the one represented by the Prime Minister and the Leader of the Opposition.

However, in the proposed 21A - the revived 19A - the Speaker’s power to appoint three non-MPs will be handed over to the Prime Minister and the Leader of the Opposition.
The 22A Draft says that all appointments should reflect the pluralistic character of Sri Lankan society. And the non-MPs should be persons of repute and integrity. CC members will serve for three years. Vacancies will have to be filled in 14 days. The draft 22A enjoins the President to make the appointments suggested by the CC within 14 days of receiving recommendations from the CC. If he fails to do that, the appointments will be deemed to have been made as recommended by the CC.

President’s Powers   

The draft says that the President will take his decisions on appointments to the Council of Ministers and the distribution of portfolios among the Ministers “on the advice of the Prime Minister” and not in “consultation with the Prime Minister, where he considers such consultation is necessary,” as in the case under 20A. The President shall be entitled to hold the Defense portfolio. In the case of the absence or exit of a minister, the President can take over that ministry, but only for 14 days.
However, the draft 22A has one over-riding provision as regards the President’s powers: He is authorized to retain most of the powers bestowed on him by 20A for the duration of the current (the ninth) parliament. This was done to placate President Gotabaya Rajapaksa, to win over to the side of constitutional reform. But now that he is no longer President, such a provision would have to basis and is likely to be discarded.  

Prime Minister’s Term of Office 

The draft 22A says that the Prime Minister shall stay in office throughout the period the cabinet is in office, unless he resigns or ceases to be a Member of Parliament. The President’s power to sack the Prime Minister which exists under 20A will go. Secretaries to the ministries would also not be required to quit upon the dissolution of the cabinet.