“Constitutions are primarily about political authority and power- the location, conferment, distribution, exercise and limitation of authority and power among the organs of a State. They are concerned with matters of procedure as well as substance. More often than not they also include explicit guarantees of the rights and freedoms of individuals as well as principles by which the State ought to be guided or to which it ought to aspire, and statements of citizen’s duties which are referred to as ideological pronouncements
There is no preordained stereotype of an ideal constitution. The form and content of a constitution will depend first on the forces at work when the constitution is established and amended, secondly on common-sense considerations of practical convenience and thirdly on the precedents available to the politicians and their advisers who draw up the constitution……….”
The Constitution of Sri Lanka, which had undergone 18 amendments earlier, was amended for the 19th time during the 100 day interim government period under the Premiership of Mr. Ranil Wickramasinghe. Mr Wickramasinghe’s party the UNP was in minority at the time. The required Parliamentary majority was secured with the help of President Maithreepala Sirisena.
Major changes effected by this amendment were as follows;
- Insertion of a new article for the right of access to information,
- Limitation of the President’s term of office from 6 to 5 years and the limitation to two terms only
- President to be responsible to parliament
- Establishment of the Constitutional Council
- Replacement of Chapter viii of the Constitution by a new chapter viii.
- Limitation of the term of the Parliament to 5 years
- Limit the power of President to dissolve the Parliament . Under the new provision President cannot dissolve it before the expiry of a period of 4years and 6 months
- Appointment of 10 Commissions including Police Commission, Audit Service Commission
The replacement of Chapter viii of the Constitution with a new chapter viii indicate the following major changes;
Section 43(2) of the constitution where it states, “notwithstanding the dissolution of the cabinet of Ministers, the President shall continue in office” has been removed.
The right of the President to appoint Ministers from among the MPs has been changed and transferred to the PM by adding the qualifying words that the President on the advice of the PM appoint…………
The Total number of cabinet Ministers has been fixed not to exceed 30 and the deputies not to exceed 40.
Section 47 of the Constitution read as follows before the 19th amendment
The Pm ….shall continue to hold office throughout the period during which cabinet of Ministers continues to function….. unless he,
- Is removed by a writing under the hand of the President
- Resigns his office
- Ceases to be a MP
The replaced new section reads as follows;
The PM shall continue to hold office throughout the period during which cabinet of Ministers continues ….unless he-
a)resigns
b)ceases to be a MP
However the original provision has been retained in the case of Ministers as follows;
A Minister shall continue to hold office throughout the period during which the Cabinet of Ministers function… unless he-
- Is removed from office under the hand of the President on the advice of the PM
- Resigns from office
- Ceases to be a MP
According to this amended provision the power for the President to remove the PM by a letter issued under his signature has been dropped and the right the President had to remove a Minister has been curtailed with a rider that it can be done only with the advice of the PM. Nevertheless, in all sections dealing with the position of the Cabinet of Ministers after dissolution of Parliament as in 47(2), and (3) the removal from office of the PM is specifically referred to.
Under 48 (1) dealing with the dissolution of the cabinet of ministers, the possibility of the PM ceasing to hold office due to a removal by the President is omitted. The English version states-“on the PM ceasing to hold office by death,resignation or otherwise ……. The cabinet of ministers shall……stand DISSOLVED………. And the President shall appoint A PM and a cabinet……..”
But in the Sinhala version of the constitution 48(1) the c enumerated for the circumstances for ceasing of the holding of office by PM are specified as, removal from office or resignation or otherwise. There appears to be a serious discrepancy here. Death factor is omitted in the Sinhala version and the removal factor is included only in the Sinhala version.
Therefore it appears that the section providing for the removal of the PM under the Hand of the President has been inadvertently omitted. Otherwise the sections 47(2) and (3) should not state about a removal of the PM.
Section 49 of the amended constitution deals with Transitional Provisions and specifically refer to applicability of the amended provisions of the constitution to the PM and the President. There is an anomalous situation arising out of this transitional provision. The provision subjects the President to continue to hold office under the provisions of the amended Act whereby his Term of Office gets curtailed to 5 years. He was elected to office by the voters exercising their franchise under the constitution that prevailed then for a term of office of 6 years. By this subsequent amendment the period gets reduced to 5 years. There appears to be an infringement of the rights of the People who voted him for a 6 year period due to this curtailment. We feel that such a fundamental issue dealing with the sovereignty of the people shuld have been referred to a referendum.
The inclusion of the Prime Minister under the transitional provisions does not appear to be of any significance since the PM s term was limited to that interim parliament scheduled to be dissolved at the end of 100 days.
Therefore the hurriedly amended constitution appears to have brought serious limitations of the Presidential powers in an unexpected manner.
