The Differences between the 19th and 20th Amendments to the Constitution in Sri Lanka
The first part of this article addresses the meaning of the Constitution, what is the meaning of the Amendments, why the constitution has become a crucial part of the society, and the introduction of the 18th amendment to the constitution. After introducing the constitution, the second part of this article enunciated differences between the 19th and 20th amendments to the constitution in Sri Lanka with the respective provisions. Within this part, considered the key changes that have been done by the amendments. The power of the Executive Presidency, the Constitutional and Parliamentary Council, the changes of the Legislature, the changes of the Judiciary, and the Human Rights, appointing judges, and the changes of the Cabinet are the key features have discussed in the second part. Finally, the third part of this article demonstrated the importance of the 19th amendment to the constitution and why we should restore the 19th amendment as a solution to the existing crisis in Sri Lanka.
Significant differences between the 19th Amendment and the 20th Amendment.
1. Changes to the Executive Presidency
2. The Constitutional Council and Independent Commissions
3. Changes to the Legislature
4. Other Changes
The Constitution is a body of basic laws and principles that use to guide all of the political practices all over the country. It organizes the state and designates state power to actors, bodies, and institutions or branches of government. Therefore, the constitution and amendments are a crucial part of the people who are in a democratic state. This article intends to examine the differences between the 19th and 20th Amendments to the Constitution in Sri Lanka, and the movement why the 19th Amendment to the Constitution is more important than the 20th Amendment. The first part of this article has addressed ‘the meaning of the Constitution, what is the meaning of the Amendments, why the constitution has become a crucial part of the society, and the introduction of the 18th amendment to the constitution. After introducing the constitution the second part of this article enunciated differences between the 19th and 20th amendments to the constitution in Sri Lanka with the respective provisions. Within this part, considered the key changes that have been done by the amendments. The power of the Executive Presidency, the Constitutional and Parliamentary Council, the changes of the Legislature, the changes of the Judiciary, and the Human Rights, appointing judges, and the changes of the Cabinet are the key features have discussed in the second part. Finally, the third part of this article demonstrated the importance of the 19th amendment to the constitution and why we should restore the 19th amendment as a solution to the existing crisis in Sri Lanka.
Keywords: The 19th Amendment to the Constitution / The 20th Amendment to the Constitution / Economic and Political Crisis in Sri Lanka.
A constitution enunciates the organized society which describes the foundation of the community, basic components, nature of the constitution, rules, and regulations, and behavior of the government. Aristotle wrote that a Constitution, “is the way of life of a citizen body”. According to him, ‘citizens were all who share in the civic life of ruling and being ruled in turn’. Further, Prof. A.V. Dicey mentioned that the “Law of the constitution, in its strict sense consists of (constitutional) rules which (whether written or unwritten, whether enacted by statute or derived from the mass of custom, tradition, or judge-made maxims known as the common law) are enforced by the courts.” Therefore constitution can be described as ‘the fundamental rules governing an association.’ The vast majority of contemporary constitutions mentioned the basic principles of the state, the structures and process of the government, and fundamental rights. This document can be recognized as a higher law that cannot be unilaterally changed by an ordinary legislative act. This higher law is usually referred to as a Constitution.
Most of the people in power introduce changes to the existing constitution as Amendments. The Amendment in government and law is an addition or alteration made to a constitution, statute, or legislative bill or resolution. Amendment can be made to existing constitutions and statutes and are also commonly made to bills in the course of their passage through a legislature. Since the amendment to a national constitution can fundamentally change a country’s political system or governing institutions. Such amendments are usually submitted to an exactly prescribed procedure.
In Sri Lanka, the Second Democratic Socialist Republic constitution, in 1978 is still in force today. Over the past 40 years, the Constitution has been amended several times. During the President ‘Mahinda Rajapaksha’ period, he enacted the 18th Amendment to the Constitution and which made a powerful presidential system including the significant powers. The highlighted changes in this amendment were:
a. The President can seek re-election any number of times;
b. The ten-member Constitutional Council has been replaced with a five-member Parliamentary Council;
c. Independent commissions are brought under the authority of the President; and,
d. It enables the President to attend Parliament once in three months and entitles him to all the privileges, immunities, and powers of a Member of Parliament other than the entitlement to vote. In short, it is all about arming the President with absolute power (Sultana, Gulbin, 2010).
The government argued that the amendment was essential to strengthen and enlarge the democratic and sovereign rights of the people. In reality, however, the amendment had concentrated all powers in one individual – the president. It has removed the restrictions on two terms for an elected President, who also had the power to call for a Presidential election after four years of his second term. Earlier, under Article 17A, the President was obliged to obtain the recommendation of the Constitutional Council for appointments to the independent commissions. Minister of Finance, Basil Rajapaksa had mentioned that such a council was “riddled with flaws, which led to a gridlock” and affected the appointment of members to the independent commissions. Therefore, the 18th Amendment was needed to replace the Constitutional Council with a Parliamentary Council, which consisted of the Prime Minister, the Speaker, Leader of the Opposition Party and two Members of Parliament to be nominated by the Prime Minister and Leader of the Opposition. In case they fail to name their respective nominees within the stipulated time of one week after the amendment became effective, the Speaker has the power to appoint the two members to the Parliamentary Council.
Apart from that, Under this Amendment, the President has the power to appoint the Chairman and members of the Election Commission, Public Service Commission, National Police Commission, Human Rights Commission, Permanent Commission to Investigate Allegations of Bribery and Corruption, Finance Commission, Delimitation Commission, Chief Justice and Judges of the Supreme Court, the President and Judges of the Court of Appeal, Members of the Judicial Service Commission, Attorney General, Auditor General, Ombudsman and Secretary-General of Parliament.
Within this discussion, the most alarming thing was that the amendment has made the president all-powerful without any sound mechanism of checks and balances, which is necessary for a responsive democracy. The 17th Amendment had, to some extent, provided for limited checks and balances, but it was never implemented.
Amid these situations to protect the democratic values in Sri Lanka, the opposite party (United Nations Party) came forward with the concept of Good Governance. After winning the Presidential election in 2015, newly appointed president ‘Maithreepala Sirisena’ and Prime Minister Ranil Wickramasinghe’ enacted the 19th Amendment to the constitution. At the present, Sri Lanka is in a huge economic crisis. After the presidential election in 2019 the power that has changed to the SLPP (Sri Lanka Podujana Peramuna) and after that the alliances of the SLPP adopted the 20th amendment to the constitution. During the period of Ranil-Maithree, most of the people of Sri Lanka had criticized the westernized policies of Prime Minister Ranil Wickramasinghe, and otherwise, the Easter attack was one of the crummy incidents for failing the ‘Yahapalana Government in 2019.’
But today, now people in power are trying to adopt the 19th Amendment to the constitution, and hereafter this article is used to identify the differences between the 19th Amendment and the 20th Amendment to the Constitution, and why the 19th Amendment to the Constitution is more important than the 20th Amendment.
Significant differences between the 19th Amendment and the 20th Amendment.
The 19th amendment, adopted in 2015, had imposed certain limits on the Executive President’s authority and powers, including in respect of terms of the office of President, the capacity to dissolve Parliament, and to fast-track legislation. It also removed the blanket immunity the President enjoyed from legal proceedings. Critically, it had established a Constitutional Council which restrained the President’s discretion in appointing key governmental actors including in the judiciary, the Attorney General, and the Inspector General of Police. The Sri Lankan government enacted a Constitutional Amendment within the first two months of its coming into power in August 2020. The 20th Amendment to the Constitution, so enacted, bears as its central feature the concentration of powers in the Executive President, and thereby erodes several of the democratic reforms introduced by the 19th Amendment.
1. Changes to the Executive Presidency
Qualifications to be elected as President in the 19th Amendment, Reintroducing the two-term limit on the number of terms a person can hold office as President – a person who is twice elected as President is disqualified from contesting for the third time (the 19th Amendment, Article 31(2) of the Constitution). A person who is; below the age of 35 years [the 19th Amendment, Article 92(a) of the Constitution] or a dual citizen (see below paragraph 24) is disqualified from being elected to the office of President.
The 20th Amendment to the constitution has changed the qualifications to be elected as president. Reducing the minimum age of eligibility from 35 to 30 [the 20th Amendment, Article 92 of the Constitution], and removing the disqualification of dual citizens from being elected to the office of President.
Duties, Powers, and Functions of the president - according to the 19th Amendment,
a. Ensure that the Constitution is respected and upheld;
b. Promote national reconciliation and integration;
c. Ensure and facilitate the proper functioning of the Constitutional Council and the institutions referred to in Chapter VII a;
d. On the advice of the Election Commission, ensure the creation of proper conditions for the conduct of free and fair elections and referenda.
In addition to that, The President no longer has the power to remove the Prime Minister at his discretion. [The 19th Amendment, Article 46(2) of the Constitution], and
a. A The President is required to act on the advice of the Prime Minister when appointing or removing from 8 offices any Cabinet Minister, Non-Cabinet Minister, or Deputy Minister. [The 19th Amendment, Article 43(2), 44(1), 45(1), and 46(3) (a) of the Constitution]
b. However in determining the number of Cabinet Ministers and subjects assigned to each Cabinet Minister and in assigning subjects to Non-Cabinet Ministers, the President is required to consult the Prime Minister only if s/he considers such consultation necessary [The 19th Amendment, Article 43(1), 44(2) of the Constitution]
c. The President may at any time change: a. the assignment of subjects and functions of both Cabinet and Non-Cabinet Ministers, b. the composition of the Cabinet of Ministers . Such changes will not affect the continuity of the Cabinet of Ministers and the continuity of its responsibility to Parliament. [The19th Amendment, Article 43(3), 44(3) of the Constitution]
The 20th amendment created the executive presidency as a powerful institution in Sri Lanka. According to this amendment, Sri Lankan President consists of the powers that have mentioned below.
a. The President can remove the Prime Minister at any time at the President’s discretion. [The 20th Amendment, Article 47(2) of the Constitution]
b. Repeal the provisions of the Constitution which previously required the President to act on the advice of the Prime Minister when appointing or removing from office any Cabinet Minister, Non-Cabinet Minister, or Deputy Minister. The President can act on his discretion in making appointments and removals. The President may consult the Prime Minister if the President considers such consultation necessary when making appointments. [the 20th Amendment, Article46 (1) and 47(2) of the Constitution]
The 19th Amendment inserted a new Article 33A in the Constitution. This article intends to the responsibility of the president to Parliament. The most distinguish this is that the 20th Amendment repealed Article 33A.
33A. The President shall be responsible to Parliament for the due exercise, performance, and discharge of his powers, duties, and functions under the Constitution and any written law, including the law for the time being relating to public security.” [The 19th Amendment, Article 33A of the Constitution]
The Immunity of the President - Actions of the President in his/her capacity as President are subject to the Fundamental Rights jurisdiction of the Supreme Court. Before the 19th Amendment, no proceedings could be instituted or continued against the President. After the Amendment, the scope of the immunity conferred on the President has been limited to “civil” or “criminal” proceedings [The 19th Amendment, Article 35 of the Constitution]. Looking at the 20th Amendment, The scope of the immunity conferred on the President by the 19th Amendment has been expanded beyond actions in “civil” or “criminal” proceedings.
35. (1) While any person holds office as President of the Republic of Sri Lanka, no civil or criminal proceedings shall be instituted or continued against the President in respect of anything done or omitted to be done by the President, either in his official or private capacity [The 19th Amendment, Article 35 (1) of the Constitution].
35. (1) While any person holds office as President, no proceedings shall be instituted or continued against him in any court or tribunal in respect of anything done or omitted to be done by him either in his official or private capacity [The 19th Amendment, Article 35 (1) of the Constitution].
2. The Constitutional Council and Independent Commissions
The 19th Amendment – The Constitutional Council shall consist of 7 Members of Parliament and 3 eminent persons.
a. Three official members - The Speaker, the Prime Minister, and the Leader of the Opposition in Parliament [the 19th Amendment, Article 41A (1) (a), (b), and (c)].
b. Four Members of Parliament appointed to the Constitutional Council –
One Member of Parliament is appointed by the President. [The 19th Amendment, Article 41A (1) (d)],
Two Members of Parliament are appointed by the President, on the nomination of both the Prime Minister and the Leader of the Opposition. [The 19th Amendment, Article 41A (1) (e)]
One Member of Parliament is nominated by agreement of the majority of the Members of Parliament belonging to political parties or independent groups. [The 19th Amendment, Article 41A (1) (f)]
c. Three Eminent Persons appointed to the Constitutional Council - Three persons of eminence and integrity who have distinguished themselves in public or professional life and who are not members of any political party, to be nominated together by the Prime Minister and the Leader of Opposition. The nominations made by the Prime Minister and the Leader of the Opposition are required to be approved by Parliament. [The 19th Amendment, Article 41A (1) (e), Article 41A (4), Article 41A (5) of the Constitution].
Members of the below-mentioned Commissions can be appointed by the President only on the recommendation of the Constitutional Council. The Commissions are;
a. The Election Commission
b. The Public Service Commission
c. The National Police Commission
d. The Human Rights Commission of Sri Lanka
e. The Commission to Investigate Allegations of Bribery or Corruption
f. The Finance Commission
g. The Delimitation Commission
h. The National Procurement Commission
i. The Audit Service Commission. [The 19th Amendment, Article 41B (1) of the Constitution]
The President is to appoint a Chairman for each of the above-mentioned Commissions on the recommendation of the Council. For this purpose, the 15 Council shall recommend three names for each Commission to the President. [The19th Amendment, Article 41B (3) of the Constitution]. Makes provisions for the Constitutional Council to approve the nominees of the President for,
a. The office of Chief Justice
b. The Judges of the Supreme Court
c. The President and the Judges of the Court of Appeal
d. The Members of the Judicial Service Commission
e. The Attorney-General
f. The Auditor-General
g. The Inspector-General of Police
h. The Ombudsman
i. The Secretary-General of Parliament. [The 19th Amendment, Article 41C (1) of the Constitution]
The 20th Amendment - The Constitutional Council has been abolished and replaced with the Parliamentary Council. The Parliamentary Council comprises ONLY Members of Parliament including; (a) The Prime Minister (b) The Speaker (c) The Leader of the Opposition (d) A nominee of the Prime Minister (e) A nominee of the Leader of the Opposition.
Apart from that, the Parliamentary Council can ONLY make observations about the nominations made by the President to appoint individuals to the offices mentioned in Schedule I and Schedule II to Chapter VII A of the Constitution. And also, the President is not bound by the observations of the Parliamentary Council, s/he only has to “seek observations”. There is no obligation on the part of the President to even consider the observations.
3. Changes to the Legislature
The 19th Amendment - Reduces the term of Parliament from 6 years to 5, Removes the President’s power to dissolve Parliament at his discretion. The President can dissolve Parliament only; if two-thirds of the Members of Parliament pass a resolution requesting him to dissolve Parliament, and any time after the expiration of four and a half years, since the first meeting of Parliament [The 19th Amendment, Article 62(2), 70(1) of the Constitution].
Additionally, the 20th Amendment imposes new conditions regarding the dissolution of Parliament;
a. The President shall not dissolve Parliament until the expiration of a period of two years and six months from the date appointed for Parliament’s first meeting. However, the President can dissolve Parliament earlier if;
i) Parliament by resolution requests the President to dissolve Parliament,
ii) Where the President has not dissolved Parliament consequent upon the rejection of the Appropriation Bill, the President shall dissolve Parliament if Parliament rejects the next Appropriation Bill,
b. the President shall not dissolve Parliament on the rejection of the Statement of Government Policy at the commencement of the first session of Parliament after a General Election;
c. the President shall not dissolve Parliament after the Speaker has entertained a resolution calling for the impeachment of the President in terms of Article 38 of the Constitution.
4. Other Changes
By the 20th Amendment to the Constitution, The President can appoint the Chief Justice, the other judges of the Supreme Court, the President of the Court of Appeal, and the other judges of the Court of Appeal at his discretion. Moreover, increase the upper limit to the number of Judges of the Supreme Court from 11 to 17 judges [The 20th Amendment, Article 119 of the Constitution], increases the upper limit to the number of Judges of the Court of Appeal from 12 to 20 judges [The 20th Amendment, Article 137 of the Constitution], the President may appoint any two judges of the Supreme Court as members of the Judicial Service Commission, at his discretion, subject to the conditions relating to their seniority and judicial experience serving as a Judge of a Court of First Instance as specified in Article 111D(2) [The 20th Amendment, Article 111D of the Constitution].
The 19th Amendment introduces a ceiling on the number of Ministers (Both Cabinet and Non-Cabinet) – The total number of Cabinet of Ministers shall not exceed thirty and Ministers who are not members of the Cabinet of Ministers and Deputy Ministers shall not, in total exceed forty. [The 19th Amendment, Article 46(1) of the Constitution]. Inclusion of a Right to Access Information as provided for by law. [The 19th Amendment, Article 14A of the Constitution]. Removes the provision in the Constitution which permitted the government to pass legislation as “Urgent Bills” [The 19th Amendment, by repealing what was previously Article 122 of the Constitution] Increases from 7 days to 14 days, the period a Bill is to be made public (by being published in the gazette) before it can be placed on the order paper of Parliament. [The 19th Amendment, Article 78(1) of the Constitution].
Why the 19th Amendment to the Constitution is more important than the 20th Amendment.
At the movement, we are in huge trouble as Sri Lankans. We don’t have foreign reserves or Sri Lankan Rupees for buying or paying anything. After the independence, we tried so many times to develop our nation. As a country, there are lots of natural resources and human resources which can be helpful to uplift our economy. Due to the current situation intellectuals are trying to leave the country. Besides, ordinary masses came out of their houses and demanded the resignation of President Gotabhaya Rajapaksha and his government. Also, the common people of Sri Lanka are struggling with their daily needs badly. Apart from that, Sri Lankan people are blaming the Rajapaksha family who was in power twice in Sri Lanka. Public anger against the Rajapakshas has never been so high. Not only that fuel and food prices are increasing day by day, and the most unfortunate situation is that the people of Sri Lanka are waiting in a long queue to expect the food and fuel. As never before Sri Lanka is in a critical situation, and has been requesting financial support from the IMF and other states. Further, Sri Lankan economic experts are requesting to restructure the debt from the other states.
Due to this situation, the importance of the 19th Amendment to the constitution has come forward because the newly adopted 20th amendment to the constitution is a blow to the rule of law and the concept of Democracy. With the two-thirds majority they had in Parliament they were able to enact the 20th Amendment or 20A, which granted sweeping powers to the executive presidency and heightened immunity to the president’s office. Meanwhile, after resigning, Prime Minister Mahinda Rajapaksha said that “I believe that 19A [the 19th Amendment to the Sri Lankan Constitution] has to be revived with certain amendments as a short term solution”. Thus he mentioned that in the Parliament, ‘I believe a constitutional change must take place. As a start, I believe implementing the 19th amendment with necessary and timely changes is the best short-term solution for the current situation in the country, with the blessings of the president, we must walk towards broader constitutional reform in the future (Jayasinghe, 2022).
Newly appointed Premier Rani Wickramasinghe has pointed out, that he is happy to retake the 19th Amendment to the Constitution. And also, the protestors gathered in their thousands at the Galle Face Green in Colombo in front of the presidential secretariat are demanding change through constitutional reform (Jayasinghe, 2022).
As a result of the 20th Amendment, the president has wings to fly wherever he wants. Due to his presidential powers, he took lots of wrong decisions that badly affected the ordinary people in Sri Lanka. The new government under the president Gotabhaya Rajapaksha irrationally cut taxes. Value-added tax rates were cut from 15% to 8%. Other indirect taxes such as the nation-building tax, the pay-as-you-earn tax, and economic service charges were abolished. Corporate tax rates were reduced from 28% to 24%. Meanwhile, the current government turned to organic farming. That is also a peril to the country. The government implemented the organic policy for agriculture in one night. Besides, the government has increased the price of fertilizers. Apart from that, President Gotabhaya Rajapaksha does not need advice from intellectuals, because of that the 20th Amendment has made intellectuals a cipher. When studying the 19th Amendment that developed the concept of Democracy and the concept of Good Governance in Sri Lanka. Therefore, to solve the existing political and economic crisis protesters who are in Galleface are trying to find a solution through the constitutional arrangement. This crisis is not only the economic one, indeed it is a creation of the failed system of the governing process.
For instance: the 19th Amendment to the constitution introduced the Audit Service Commission and the National Procurement Commission as an independent commissions. Nevertheless, after enacting the 20th Amendment to the constitution the current political leaders abolished these two commissions. The Audit service enhances public accountability and public interest in a country. The actual mission of the Audit Service is to ensure accountability of public resources to enhance good governance by providing competent and professional state audit service.
As mentioned earlier, the 20th Amendment has cut off valuable institutions from the constitution. Therefore reenacting the 19th Amendment to the constitution is a good way to find out the solutions to the existing crisis in Sri Lanka.
Eventually, the people who were with former president Mahinda Rajapaksha understood the value of the 19th Amendment to the constitution. After winning the civil war ordinary people in Sri Lanka thought that Mahinda Rajapaksha’s governing process is the best way to become a wonder of Asia. However, the reality is that now we have the Maththala Rajapaksha Airport, Hambanthota Harbor, and the Lotus Tower in Sinhala ‘Nelum kuluna’, standing at a height of 356 meters, and this tower is the tallest tower in South Asia, the 11th tallest tower in Asia, and the 19th tallest tower in the world. The reason for the doldrums is that ordinary people in Sri Lanka have to look at the lights of Nelum Kuluna and that helps us to cogitate the wasting cost that we spent on that. At that movement, the shortage of food and fuel is vanishing, and further people are struggling with their daily needs. Due to this situation, if we are hungry, we should be questioning the rulers on the importance of this type of tower?
The reason for the existing situation in the country is that created the dictatorial presidential system in Sri Lanka through the amendments. When questioning the political leaders who are in power about this family politics and turning the dictatorial political process they answered the international media ‘ we are in power, because of the votes of the people .’ This power of the president became higher after enacting the 20th Amendment to the constitution.
The enactment of the historic 19th Amendment in April 2015 was rushed by Prime Minister Ranil Wickremesinghe. It had removed the powers of the President to sack the Prime Minister at his discretion. By amending the Articles 46 (2) and 48 of the Sri Lankan constitution, the cabinet ministers could have been dismissed only if the Prime Minister ceased to hold office by death, resignation, or otherwise, or only if the Parliament reject a statement of government policy or the budget or if the parliament passes a vote of no confidence against the Government. The amendment also restricted the President’s powers to dismiss Cabinet ministers as he was required to act on the advice of the Prime Minister.
Otherwise, a major criticism against the 19th amendment was that it was rushed by PM Wickremesinghe for his selfish needs, and without following the due process. According to the existing circumstances in the country, however, the 19th amendment to the constitution is making a milestone in Sri Lankan constitutional history. Further, that amendment proved the value of Democracy and the concept of Good Governance.
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Jayasinghe, Chanaka. “Crisis-hit Sri Lanka PM wants the 19th amendment restored as a short-term fix”. Economynext, Echelon Media (PVT) Ltd, 19 April 2022, https://economynext.com/crisis-hit-sri-lanka-pm-wants-19th-amendment-restored-as-short-term-fix-93151/.
Sultana, Gulbin. (2010), “18th Amendment: Making Mockery of Democracy in Sri Lanka.” IDSA Comment, IDSA, 7 October 2010, https://www.idsa.in/idsacomments/18thAmendmentMakingaMockeryofDemocracyinSriLanka_gsultana_071010.