Curtailment of Presidential Powers by the 19th Amendment

A Comment on Nihal Jayawickrama’s Discourse


by G. H. Peiris

This is a response to the article (Sunday Island of 8 June 2019) titled ‘The presidential hopefuls: Have they not read article 43?’, authored by Dr. Nihal Jayawickrama, of whose scholarly and professional achievements I have heard about, from time, to time since the early 1960s, when he was an undergraduate at Peradeniya. Being aware only of one presidential hopeful declaring his intention to contest (that too, subject to qualifications), I have not been aware of the hectic scramble among prospective contestants and of the media coverage of their policy and programme declarations referred to by him in the passage reproduced below – quite a surprise for me in the context of all my efforts to keep up with ‘current affairs’.

"Several of the potential candidates have already begun announcing their policies and programmes. Some have done so at well-attended, lavish meetings, in five-star hotels, while others have used social media to do so. These policies and programmes deal extensively with economic, social, national security, and other similar issues crucial to the governance of Sri Lanka. One candidate has even announced the text of a new constitution he intends to introduce. Our newspapers regularly devote several columns to critical analyses of these proposed policies and programmes".

The surprise, needless to say, is pleasant, but only if this set of information does not constitute a hyperbolic foreplay intended to capture reader-attention prior to the author’s main thrust.

In order to make my own intentions clear, may I state that consumers of news need to be sceptical of the outpourings from the plethora of media sources of diverse dependability we have at present, even while absorbing the contents of authoritative statements by eminent professionals. (Consider, for instance, the raging media debates and mutually irreconcilable information conveyed to us on issues such as coal power, KUDU or glyphosate, based presumably on the so-called "hard sciences", and the far greater subjectivity there is in expertise pertaining to political affairs). In such a frame of mind, what I see as the crux of Dr. Jayawickrama’s discourse is that the 19th Amendment has allegedly emaciated presidential powers to such an extent that only those who have not grasped the real implications of Articles 41-43 of the present Constitution fail to realise that (to quote him) "it will be the policies and programmes of the political party securing a majority in Parliament that will be implemented throughout the country".

My understanding, based on a careful matching of Dr. Jayawickrama’s aforesaid assertions with the relevant paragraphs of Articles 41-43 of the Constitution, is that he has overstated his case, and that his article could have a thoroughly misleading impact. This, I illustrate as follows.

Please note that, in order to achieve a measure of clarity in my submissions presented below, the relevant extracts from the Constitution are presented in an italicised bold font.

Article 41C. Constitutional Council (CC) to approve appointments

41 C, Paragraph 1: No person shall be appointed by the President to any of the Offices specified in the Schedule to this Article, unless such appointment has been approved by the Council upon a recommendation made to the Council by the President.

My observation: The CC powers are restricted to approval or rejection of the President’s nominees. In the contest of the CC being required to submit regular reports on its proceedings to the President, whenever the CC rejects a presidential nominee, the president has the powers of going on with nominating others until the CC approves.

41 C, Paragraph 2: The provisions of paragraph (1) of this Article shall apply in respect of any person appointed to act for a period exceeding fourteen days, in any Office specified in the Schedule to this Article: Provided that no person shall be appointed to act in any such office for successive periods not exceeding fourteen days, unless such acting appointment has been approved by the Council on a recommendation by the President.

My observation: Here again, there are residual powers vested in the president in the sense that the CC could approve an extension of tenure that has been recommended by the President.

Article 42. Prime Minister and the Cabinet of Ministers

Article 42, Paragraph 3: The President shall be a member of the Cabinet of Ministers and shall be the Head of the Cabinet of Ministers.

My observation: The President, as both the Head (the use of the term ‘Head’ imply that presidential authority over cabinet proceedings exceeds that of a ceremonial ‘Chairman’, and that he retains a range of powers such as formulating the meeting Agenda, regulating the meeting discussions, terminating and/or suspending meetings of the cabinet etc).

Article 42, Paragraph 4: The President shall appoint as Prime Minister the Member of Parliament, who, in the President's opinion, is most likely to command the confidence of Parliament.

My observation: The appointment of the PM, on the basis of the President’s opinion could creates a hazy situation, especially where a general election create a hung parliament with no party having an absolute majority. This makes it possible for post-election horse-deals (especially those that bring about en bloc changes of party alignments) by the President and by leaders of other political parties. So, shouldn’t this be interpreted as a constitutional provision that vests on the President far-reaching powers?

Article 43. Ministers and their subjects and functions

Article 43, Paragraph 1: The President shall, in consultation with the Prime Minister, where he considers such consultation to be necessary, determine the number of Ministers of the Cabinet of Ministers and the Ministries and the assignment of subjects and functions to such Ministers.

My observation: This paragraph of Article 43 also vests in the President, especially in the context of a scenario such as the one we have at present, when the President needs to consult (only where he considers such consultation to be necessary) the PM on the size of the Cabinet and on the allocation of functions among its members only if the President considers such consultation to be necessary.

Article 43, Paragraph 3: The President may at any time change the assignment of subjects and functions and the composition of the Cabinet of Ministers. Such changes shall not affect the continuity of the Cabinet of Ministers and the continuity of its responsibility to Parliament.

My observation: Notwithstanding Paragraph 2 of this article which stipulates that in appointing Ministers, the President has to conform to the advice of the Prime Minister, this paragraph (i.e. Paragraph 3 of Article 43) vests in the President far-reaching executive powers in respect of changing the assignment of subjects and functions and the composition of the Cabinet of Ministers. 

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