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Quandary over 19th Amendment

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The three-month-old Maithripala Sirisena–Ranil Wickremesinghe administration is struggling to achieve stability in governing the country and its latest move is introducing the 19th Amendment to the Constitution which has become the focus of attention in legal and political circles.

Unlike the preceding 17th and 18th Amendments which only altered some aspects of the Constitution, the 19th Amendment seeks to completely overhaul the presidential system of government, drastically reducing the powers of an elected President.
The context in which the 19th Amendment evolved is worthwhile recalling: the overhaul of the executive presidential system was first mooted by Maduluwave Sobhitha Thera. The slogan quickly became a focus for political forces opposed to Mahinda Rajapaksa to rally around.

There was, for months, an intense search for a viable ‘common’ candidate who could take on the task of challenging Rajapaksa. Maithripala Sirisena suddenly emerged from this campaign, taking the then incumbent President by complete surprise.
The political forces that backed President Sirisena in his campaign were a diverse group who were united in a common cause: firstly, they wanted Rajapaksa ousted from power. Secondly, most of them wanted the powers of the Executive Presidency pruned.
On the latter issue, however, there was little or no agreement on how this should be done. The Jathika Hela Urumaya (JHU), for instance, wanted the Presidency retained with its powers curtailed. It argued that in times of threats to national security, the President could prevail over an unstable Parliament.

They argued that during the final phases of the Eelam War, President Rajapaksa was able to maintain a stable government by inviting opposition members to join him. Had the government relied solely on a Prime Minister dependent on Parliamentary support, the war effort could have collapsed.

http://www.nation.lk/edition/images/logo/tis.jpgOn the other hand, the Janatha Vimukthi Peramuna (JVP) has consistently stood for the abolition of the Executive Presidency which was first promised by Chandrika Kumaratunga. The JVP withdrew its candidate from a presidential election because of that promise which Kumaratunga then ignored.

 It is a moot point whether the major opposition party, the United National Party (UNP) genuinely wanted the Executive Presidency abolished. UNP leader Ranil Wickremesinghe was a long-time proponent of the presidential system and for decades supported it wholeheartedly.

With the passage of the 18th Amendment which enabled Mahinda Rajapaksa to contest presidential elections an infinite number of times, Wickremesinghe has had a change of heart and now argues against it, citing some of Rajapaksa’s actions as examples of abuse of power.

As there were many political parties and civil society groups backing the Sirisena campaign, the focus was on getting the ‘common’ candidate elected in what was a tough election rather on what exactly would happen to the Executive Presidency. Obviously each party hoped it would be done their way!

It is noteworthy that the Sirisena manifesto promises to ‘change the post of Executive President’, not to abolish it. The manifesto explicitly states that President Sirisena would take into consideration the views of Sobhitha Thera, the JHU, the JVP and the UNP, in doing so.

It is this exercise that is happening now. However, what has been presented to Parliament as the draft 19th Amendment was largely the work of the UNP, as it is the party in government. Many aspects of it have run into a storm of criticism and the amendment has been challenged in the Supreme Court.

Ironically, some of these challenges have come from within the government, most notably the JHU. The President’s own party, the Sri Lanka Freedom Party (SLFP) broadly endorses the reforms but is insisting on supporting it, only if it is introduced in tandem with electoral reforms.

The thrust of most of the challenges is that the changes envisaged in the 19th Amendment replace the Executive Presidency with a Prime Minister with almost similar powers. It has also been argued that the proposed changes require approval by the people at a referendum.

Another question that has been posed is that, if the President has hardly any powers as advocated in the 19th Amendment in its present form, why he should be elected at all. A ceremonial President, such as the office held by William Gopallawa from 1972 to 1978 would suffice, it has been argued.

Indeed, a forensic examination of the 19th Amendment by the Supreme Court would be most welcome. The confidence the public had in the judiciary has been restored to some extent since President Sirisena assumed office and it is hoped that a verdict devoid of political bias would be delivered.

Sri Lanka has suffered immensely because of constitutional reforms that have been rushed through for political expediency instead of thinking through long-term consequences. The 13th and 18th Amendments are examples. It is hoped that history will not repeat itself with the 19th Amendment.

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