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Five years ago, the 19th Amendment, brought by the SLFP-UNP Government to repeal the Rajapaksa regime’s controversial 18th Amendment, had been the nation’s choicest meat. It had even been hailed as the democracy restorer.

In Parliament 212 had slobbered all over it as the Dish of the Day, with only one finding it disagreeable. Today, with the change in Government the same stake has been transformed overnight to be the nation’s worst poison.

PROFESSOR PEIRIS: Stronger Government

Thus it was no wonder that no sooner had the new Government’s chosen seeds taken their oaths of cabinet office, the first item on the cabinet agenda for them to consider and approve sans murmur was the repeal of the now noxious 19A.

And with the Government receiving the expected Cabinet assent last week to repeal the 19th Amendment, instructions went forth to the Legal Draftsman to begin drafting the 20th Amendment pronto. This new amendment is widely expected to restore certain executive powers which the offending 19A had kept kraaled by the constitutional checks and balances it had introduced in its quest to curtail the far flung ambit of presidential prerogatives the 18th Amendment had granted without stint.

In fact, repealing Yahapalanaya’s 19th Amendment to empower the Government with more muscle and steel had been the SLPP’s campaign cry since Parliament was first dissolved and general election was announced in early March.  It formed the basis of the SLPP’s election invocation to the public to bestow upon the party the magical two-thirds majority in Parliament so that the ruling party could herald the miracle of Lanka by the promised due date.

Professor G. L. Peiris first began the chant on March 2 when he said, “Our goal is to obtain a two-thirds majority of seats in Parliament at the upcoming general election to repeal the 19th Amendment. A strong Government is needed to implement the changes promised during the presidential election. The 19th Amendment created challenges to State’s governing structure. These challenges need to be addressed first. Getting a two-thirds majority to pass necessary legislation in Parliament is essential to repeal the 19A and ensure a smooth functioning Government.”

On August 5, the masses answered the SLPP prayers in abundance; and, though it may be the last thing to trespass on the Government’s sleep at the start of its spring, the grant of orison also removed the slightest excuse for shoddy performance and non-delivery on the promises made. The time for words has passed. As the Government has often said, the 19A obstacle must first be removed and though it has already started cracking on amending the constitution, what form it will take no one really knows.

Professor G.L. Peiris has already branded 19A as the main block to the smooth functioning of Government and called for its immediate abolition.  So will it be repealed wholesale and the baby thrown out with the bathwater or will a political wind winnowing its way through 19A, separate the chaff from the wheat? Some ministerial opinions touted in the media say the obvious — that its negative clauses will be repealed while its positive ones will be retained?

Before the Legal Draftsman sets his pen to paper and writes a new chapter to the nation’s constitutional saga abandoning the previously writ episode, perhaps, Professor Peiris, constitutional expert that he is, should take it upon himself the duty to explain, to the masses, the Articles and Clauses in the 19th Amendment he considers as impediments to “the smooth functioning of Government?”

Does the good professor consider as an impediment to the smooth functioning of government, the articles in 19A which demand the prime minister’s consent to the appointment and dismissal of ministers and thus removes the executive president’s freedom to hire and fire ministers solely at his own discretion?

Does the good professor also consider as an impediment to the smooth functioning of government the 19 Amendment which has been widely held as removing from the president’s hand the executive power to dismiss the prime minister once he or she has been appointed to that office by the president?

These two instances demonstrate how 19A was designed to strengthen parliamentary democracy and reduce the arbitrary, near absolute powers of the executive president far removed from parliamentary supervision. The 19th Amendment was itself introduced in 2015 as a compromise solution  to meet the public clamour to scrap the entire executive presidency altogether, holding that such power enshrined in the hands of one man had done  more harm than good in the 37 years of the constitution’s existence.

But if the good professor is worried of the 19th Amendment on this score, that it will impede the ‘smooth functioning of government’, he need not fret. At the height of the nation’s constitutional coup on October 28, 2018, when the wide consensus was that Prime Minister Ranil Wickremesinghe could not be sacked by President Sirisena under the 19th Amendment and that the sacking was illegal and ultra vires the Constitution, the good professor’s considered opinion was that it was perfectly legit.

The following day, Professor Peiris showcased his legal expertise by vindicating the right of President Sirisena to sack his Prime Minister Wickremesinghe under 19A. In a statement issued to the media, he declared: “Continuing discussion of the legal issues is taking place on the basis of a fundamental misconception. It has been assumed that there is no provision in the Constitution of Sri Lanka, empowering the President to remove the Prime Minister. This is entirely incorrect. Section 48(i), which is part of the 19th Amendment, explicitly refers to removal or dismissal as one of the methods by which the Prime Minister ceases to hold office.

“The Constitution, therefore, in express terms recognises removal or dismissal by the President as a mode of ending the tenure of office of the Prime Minister.’’

Thus the professor can safely advise the Legal Draftsman and the subcommittee that the Constitution and 19A both provide for the President to dismiss the Prime Minister; and that therefore it will not be necessary to rid the article in 19A which requires the president to obtain the consent of the PM before appointing or sacking ministers, for if the consent was withheld, the President could dismiss the PM under Article 48(j) according to GL, and appoint someone more amiable and malleable to obey the presidential command. Thus these two will not impede smooth government functioning. However, Peiris’ point on 48(j) has not been tested in the Supreme Court yet.

Then what of the Constitutional Council which comprises the Prime Minister, the Speaker, the Opposition Leader, an MP appointed as the President’s nominee, five persons appointed by the President on the nomination of both the Prime Minister and the Leader of main Opposition of whom two persons shall be Members of Parliament, an MP not of the ruling or main opposition party but nominated by them and appointed by the President. This Parliamentary A team represents the nation’s interest at its very zenith with the Speaker presiding over its proceeding.  Does Peiris see in this 19A creation, the Constitutional Council a ‘challenge to the state?’

Then what of the independent commissions? There are nine independent commissions listed and made sacrosanct in 19A. They are the Election, Public Service, Police, Audit, Human Rights, Bribery, Finance, Delimitation and the National Procurement Commissions.

Under Article 41, the Constitutional Council’s duty is to recommend persons as members or chairman of the commission and the president shall only appoint those recommended by the Council. If the President fails to appoint any within 14 days, then the persons recommended will be deemed to have been appointed as members of the said commission. They can be only removed by the Council, unless existing written law so provides for their termination.

True, Article 41 of the 19th Amendment reduces the presidential role to that of a rubber stamp  but does it impede the ‘smooth functioning of government’, in Professor Peiris’ good book? Or does it appear to do so only to pulpit preachers at the church of ‘Executive President’ who subscribes to the belief that a Supreme Omnipotent Executive untrammelled by a nit picking Parliament and sole reigning, will  soon create the miracle of Lanka and pave the sure fire route to progress?

Under the above mentioned Article 41, they are recommended to their individual posting by the Constitutional Council.  Once they are appointed, they rise from their lowly status as wretched lackeys in public service made to genuflect at every turn before politicians and do their bidding or face transfers to remote outposts, to men and women exalted in dignity, bedecked in the shining armour of independent entities for a three-year period in office, only responsible to Parliament, except the Election Commission. Are independent commissions which are legally tasked to act in the nation’s interest without fear, anathema to Peiris

For the posts of the Chief Justice, Supreme Court, Appeal Court Judges and Members of the Judicial Service, no person shall be appointed by the President unless such appointment has been approved by the Council upon a recommendation made to the Council by the President. Does this clamp on the executive’s power to choose at his sole discretion persons to the above offices, impede in any way the ‘smooth functioning of government’, according to Peiris’ good book?

Then what of the crippling disability of ‘dual citizenship’ that 19A imposes as an insurmountable bar to enter Parliament or to occupy the executive throne? Can one serve the best interest of Lanka with one foot here and the other placed firmly on some foreign soil? Man cannot serve two masters or two nations. Patriotism, on the heady beat of which this government danced its way to power, knows no halfway house. It cannot fly the Lion flag while focusing on the hovering American Bald Eagle.  But will it also be considered as a retro article impeding the forward gallop of the nation and be discarded on the wayside to make way for the return of the prodigals?

The people must guard themselves from being swayed by the rapturous strains of the presently orchestrated campaign that rubbishes the 19A and celebrates the still unborn 20th Amendment hyped in the media as the giver of hope that will free the nation from its shackles of poverty. One should not forget that in 2015, the 19A was a democracy restorer that salvaged democracy from the dumps.

If the 19th Amendment has to be repealed as GL says for the smooth functioning of government, why not go the whole hog and dump democracy itself for an even smoother ride down the slippery slope to some fabled Shangri-La?