First things first

Print edition : May 29, 2015

Ranil Wickremesinghe, Maithripala Sirisena and Chandrika Kumaratunga after signing a pledge supporting a common opposition presidential candidate in Colombo on December 1, 2014. Photo: Ishara S.Kodikara/AFP

A protest outside the Sri Lankan Parliament in Colombo on April 27 demanding constitutional reforms to reduce the executive powers of the President. Photo: Ishara S. Kodikara/AFP

The Maithripala Sirisena-Ranil Wickremesinghe government marks its 100 days in office by getting the Constitution Amendment Bill, which disallows unilateral exercise of executive powers, passed by Parliament with a massive majority.

The days immediately preceding or following the Sinhala-Tamil New Year’s Day, which invariably falls on April 13 or 14, are generally regarded as a period of leisure and entertainment in Sri Lanka. But they were not so this year, at least for political parties.

Leaders of the ruling United National Party (UNP) led by Prime Minister Ranil Wickremesinghe, factions of the Sri Lanka Freedom Party (SLFP) owing allegiance to President Maithripala Sirisena and former President Mahinda Rajapaksa, the Tamil National Alliance (TNA), and the Janatha Vimukthi Peramuna (JVP, People’s Liberation Front) were apparently racing against time, debating the pros and cons of the Constitution 19th Amendment Bill, which the Sirisena-Wickremesinghe government had planned to get adopted by Parliament before completing 100 days in office on April 23.

As the deadline was fast approaching, it became clear that Sirisena and Wickremesinghe were focussed on getting the Bill passed at any cost as the legislation came to symbolise the regime change that happened in January after Rajapaksa, who was widely considered invincible, lost to Sirisena in the presidential election. The new regime drew up a 100-day programme and, naturally, the abolition of the executive presidency (E.P.) became the critical element.

The journey of the Bill, which was passed on April 28, was, however, not as smooth as the architects of the legislation had wanted it to be. The Amendment Bill originally envisaged a swift return to the parliamentary or Cabinet system of government with the Prime Minister as the head of the Cabinet. This feature was the highlight of the Bill.

But the Supreme Court in early April held that six provisions relating to the office of Prime Minister exercising executive powers were violative of Article 3 of the Constitution dealing with the sovereignty of the country. One more provision, which provided for the takeover of the management of radio or television channels, public or private, by the Election Commission until the conduct of elections, was struck down. The court advised the government to go in for a referendum (in addition to getting a two-thirds majority in Parliament) to include these provisions in the statute. As the government was becoming desperate to ensure the passage of the Bill, the announcement came quickly that the contentious clauses would be left out at the time of the presentation of the Bill for the second reading.

But, the court did not completely kill the plans of the government. It came out with a brilliant interpretation in support of the Cabinet form of government, using the very same 1978 Constitution, which has all along been blamed for concentration of powers in the hands of one person—the President.

The court, led by Chief Justice K. Sripavan, concluded that according to the constitutional scheme of things, the President was not the “sole repository” of executive power. “It is the Cabinet of Ministers collectively, and not the President alone, which is charged with the direction and control of government.” The court also held that the President was indeed responsible to Parliament. It went one step further by stating that “executive power should not be identified with the President and personalised and [it] should be identified at all times as the power of the people”. These words hold relevance for any democracy, including India, where the parliamentary, or Cabinet, form of government is being sought to be fashioned as one of an individual or that of a few persons.

Qualitative changes

Even though the much-maligned E.P. system does not stand abolished, Sri Lanka’s Supreme Court allowed substantial and qualitative changes to be made in the current system. Among the important features of the legislation, which was yet to come into force at the time of writing of this article, are reduction in the terms of the office of the President and Parliament from six years to five, reintroduction of a limit to the number of terms a person can have as President to two, appointment of Ministers on the advice of the Prime Minister, power to the President to dissolve Parliament only after four and a half years and not one year as is the case now, revival of the Constitutional Council, and establishment of autonomous bodies such as the Election Commission, the Police Commission, the Public Services Commission and the Human Rights Commission.

The latest amendment, which rescinded the previous Amendment of September 2010, has empowered the Constitutional Council to recommend names for appointment as chairpersons or members of the commissions. The President cannot make any appointment without the Council’s recommendation. The Council will be a 10-member body with three non-political, independent persons, in addition to seven elected representatives, including three ex-officio members such as the Speaker, the Prime Minister and the Leader of the Opposition.

The bottom line is that “arbitrary and unilateral” exercise of executive powers, which became the bane of the E.P. system and which was pronounced during the Rajapaksa years (November 2005-January 2015), will no longer exist.

However laudable a law may be, political clout matters in any country that is governed by electoral politics. This is what happened in the case of the 19th Amendment Bill. The sittings of Parliament on April 20 and 21 were disrupted by Rajapaksa’s supporters, who were agitated over the summons issued to the former President by the Commission to Investigate Allegations of Bribery or Corruption (in popular parlance, Anti-Bribery Commission). The numerically strong United People’s Freedom Alliance (UPFA), with the SLFP as the principal constituent, forced the government to make some changes in the Bill, the important one being the inclusion of more elected representatives in the Constitutional Council. Originally, the Council was to have seven independent, non-political members. This was cited as a mark of recognition of the role played by civil society in the ouster of Rajapaksa. Eventually, the government agreed to include four Members of Parliament and reduce the number of independent members to three. But the government stood its ground on the provision of appointment of Ministers on the advice of the Prime Minister. Until now, the President had the power to appoint Ministers of his/her choice.

The opposition had to give up its position. After a two-day sitting, including an over 12-hour session on the night of April 28, the 225-member Parliament adopted the Bill with 212 MPs supporting it.

Ironically, the drastic reduction of powers of the E.P. system, the brainchild of former President J.R. Jayewardene, has taken place at a time when his party, the UNP, and his nephew are in power. It is another matter that the UNP, since 1999, has been arguing for the end of the E.P. system.

On the implications of the constitutional amendment for the minorities, M.A. Sumanthiran, TNA MP and one of three persons nominated by the President to work out a consensus with the opposition, said that apart from facilitating good governance and reducing political interference in vital institutions of the state, the amendment would lead to greater devolution of powers to provinces. The principle of holding the President responsible to Parliament, as enshrined in the legislation, has to be extended to the Governors of provinces who have been drawing authority from the President. So, the Governors, too, should be held accountable to elected provincial councils.

In the ultimate analysis, more than anyone else, it is the low-profile Sirisena who has emerged taller. His address to the nation through the electronic media on April 23 on the occasion of the completion of 100 days in office was matter-of-fact, direct, simple and appealing. Alluding to the Rajapaksa regime, he reminded the nation how the press, the judiciary, government officials and different sections of society were under “fear and intimidation”. The purpose of his address was to gain popular support for the constitutional amendment. Yet, he did not miss the opportunity to defend the government’s decision to return lands held until now by the security forces to their legitimate owners in the Northern and Eastern Provinces, where Tamils live in large numbers.

Sirisena, who is also the chairman of the SLFP, used the run-up to the passage of the Bill to establish his grip over the party, which had been dominated by Rajapaksa. In a sudden move in late March, he inducted 24 SLFP MPs into the Ministry. The resounding support for the Amendment Bill in Parliament a month later has demonstrated that Sirisena is becoming stronger and stronger.

The Amendment Bill episode has proved that the combined experience and political acumen of Sirisena and Wickremesinghe can make a difference, without much ado, to the Sri Lankan polity.

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