19 th Amendment : An exposition

Published : 10:25 am  April 2, 2015 | No comments so far |  | 

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A man walks into a bookshop and asks for a copy of the Sri Lankan Constitution. The owner of the bookshop looks at him sharply and replies, “I’m sorry sir, but we don’t sell periodicals.”

Jokes of this nature emerged after one of the youngest democracies in the world became famed for having an inordinate amount of Amendments at regular intervals, and when countries with older Parliaments had smaller Constitutions than our Amendments. Nevertheless, Amendment number 19 has been queued up to undo the Constitutional turmoil that evoked after the 18th Amendment (18A) warranting the need of another Amendment, which would prove to restore democracy that was affronted and due to the urgent need of the restoration of the 17th Amendment (17A).

Many people are aware of the amendments without knowing its content or why it is such a topical discussion, or of its fundamental nature. Therefore, to provide a brief exposition of its contents paying attention to some of the more salient and , a severely summarized nutshell version will be presented here.

17A contained what was considered by many, experts and laypersons alike, what was viewed as a breath of fresh air for democracy by decentralising power concentrated with the executive President to Parliament and the several Commissions set up under it, namely the Public Service Commission, the Judicial Service Commission, Human Rights Commission, Bribery Commission and Police Commission. These Commissions removed the arbitrary appointments by the President and provided a check and balance on the exercise of executive authority.

The next aspect was the inclusion of a ‘Constitutional Council’ with its ex officio members (Prime Minister, Speaker and Leader of the opposition) that provided better representation of three facets of government before arriving at appointments to public service. The 19A draft Article 41A (4) requiring the Prime Minister and the Leader of the Opposition to consult the leaders of political parties and independent groups in nominating five (5) persons to the Council, ‘so as to ensure that the Constitutional Council reflects the pluralistic character of Sri Lankan society, including professional and social diversity’ goes a step further than 17A which had no such provision. The situation that prevailed was where the President appeared for all intents and purposes a figure that held power on public trust, as custodian of that power and very much answerable to the trustees, consistent with Article 3 of the Constitution.

The next episode of the Amendment saga took a dramatic turn when Mahinda Rajapaksa came to power and presented the proposed 18A (as it was then referred to and sent tremors among the legal fraternity and concerned citizen populace alike. The reason for this dissent was due to the nature of the never- before heard reforms of radical nature that the 18A presented. The Amendment proposed inter alia the replacement of Article 31 of the Constitution (‘No person who has been twice elected to the office of President by the People shall be qualified thereafter to be elected to such office’ – an entrenched clause which requires a referendum in addition to 2/3rds in Parliament to amend) relating to the Presidential term and the proposition that it should change from a maximum of two terms to ‘more than two’ (as it was ambiguously worded) allowing the President to seek re election any number of times. This perhaps being the most prominent feature justified the public annoyance as it proved to undo the democratic mandate bestowed by 17A.

Moreover the ‘independent’ Commissions proved to be redundant under this Amendment as they came under the authority of the President effectually leaving him in charge of nominating and appointing public officials including judges, rendering null the institution of such Councils and Commissions. The ten member Constitutional Council was replaced by the 5 member ‘Parliamentary Council’. The President thus had the power under this Amendment 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 or 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. He had only to ‘consider’ the observations of the Parliamentary Council in making these appointments and was not bound by them.

The distinctive focus and centralisation of the administrative power with the executive left very little check or balance available on the executive President, and proved to be a period with dark days looming before the Rule of Law which was in danger of being put into abeyance at that juncture. The 18A was brought in as an urgent bill and did not go through the ordinary process of Parliament, nor did it have a referendum as was constitutionally required as there were judgments procured to dispense with such a necessity. Thus the 18A speedily came into being despite large public adversity.

Thereby the 19th Amendment (19A) was sought to remedy this unsavory situation which allowed almost illimitable power at the hands of the executive and blurred the separation of powers. Having very attractive propositions such as the restoration of the 17A under its belt, the 19A was not expected to be passed with little or no scrutiny, whether to fit into a ‘100-day plan’ or otherwise. Much awaited constitutional reform, like a slow cooked meal, should never be rushed if you wish to rid it of rawness. It therefore rubbed more than a few the wrong way, the manner in which this bill too was sought to be passed, in light of the objective it was held out to achieve.

The Right to Information Act was to be presented in Parliament on February 19 (which did not happen) and has now been sought to be injected into the 19A as a Fundamental Right under Article 14. Though this appears favourable on the face of things, one must question the ambiguity and further lacunas in the Constitution that could possibly arise. The draft bill of the RTI Act in itself had the making of a comprehensive Statute covering every aspect of balancing the right to information with issues of national security, and the establishment of a Right to Information Commission which would decide on matters where the distinction was blurred.

It is therein to the greatest interest of the nation that a separate Act eventually comes into being. While one may advocate the recognition of the right to information as opposed to  freedom of information, watering it down into a summarised version, to be crystallized as a fundamental right in the absence of a Right To Information Act (if it does not eventually come into being) may bring about more issues than it would solve.

The ‘two in one’ approach of the ‘Yahapalanaya’ government has raised a few eyebrows, because people may have felt that to have comprehensive constitutional reform outside the government’s promised day plan, maybe better than rushed,

haphazard reform to something as fundamental as the Constitution within the promise. However it is a greater relief to the people than could have been envisaged under the previous regime, to have the right to information solidified as a fundamental right, which even India does not recognise though they possess a RTI Act.

The much anticipated 19A appears to have delivered what it promised in some aspects, while falling woefully short in other crucial areas. Though it purported to limit Cabinet ministers to 30, Article 42(3) states that if, after a General Election held immediately after the coming into force of this Article, a ‘Government of national unity’ is formed, then, notwithstanding the provisions of paragraph 42(1), the number of Ministers of the Cabinet of Ministers and the number of Ministers outside the Cabinet of Ministers and the Deputy Ministers, may be increased up to forty-five and fifty-five, respectively (a development which has manifested itself already). Section 11 of the Draft Bill (Draft Article 52) states clearly that there shall be a Secretary to every Ministry, who shall be appointed by the President, despite having stated that this power would be vested with the Cabinet.

Further issues revolve around the division within the government towards the 19th Amendment, where the JHU have distanced themselves from supporting the reform, opposing the abolishment of the Executive Presidency on the basis that it amounts to a ‘Constitutional coup’ by the Prime Minister, whilst other factions oppose the mere pruning of Presidential powers contrary to the promise of abolishing it.

To provide better exposition of the issue, the Dailymirror collected the views of the legal fraternity to provide better elucidation of Constitutional reform that requires public opinion.

 


 

 Biggest issue is the discrepancies in  the English and Sinhala versions

“Before going to the content of the amendment, the biggest problem as I see it is that the Sinhala sections are different from the English, and we don’t know what the correct version is. I don’t know if the Tamil version carries a different interpretation altogether.

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For instance the content of Art. 17(1)  is different in Sinhala and in English. Jayawardene’s ‘72 constitution and Bandaranaike’s  ‘78 constitution are perfect. This amendment is subject to absolute negligence. They have been careless in drafting something as fundamental as the constitution.. They’re rushing things in 100-days without examining it properly. We can’t have mistakes in the Constitution; we will be the laughing stock of the world. I don’t blame the cabinet or the government because they can’t go through this with a fine comb. All the party leaders were given the text of the Amendment as well. But it is carelessness at the lower level of drafting that has caused this situation which may create great difficulties of judicial interpretation in future.
 
The Constitution must be a document that has a lasting effect. We must therefore take time and amend it properly. This is gross negligence. This is a mistake at the lower level, with the draftsmen. The cabinet is not directly to blame but surely they should examine  it. You give it to responsible people to do a responsible job.”
 
Gomin Dayasiri
(Senior Constitutional Lawyer)

 


 

Not the best draft but it can be fine-tuned later

“The fundamentals of good governance were the introduction of the Independent Commissions and the Constitutional Council, which I think is important in order to prevent the exercise of arbitrary power. In my view there has been a lot of haggling over the inclusion of electoral reforms into the Amendment along with these Commissions. While I feel the Commissions are necessary to have an independent Judiciary.
 
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This is not the best draft but I suppose it can be fine-tuned later. In the interim period this is a must, because something of this nature cannot be finalized in even 200 days. At the moment it is being rushed to fit the 100-day programme. This may be legitimate because they want to put basic things in place before they go for the elections and to have an election with minimum abuse of power and perhaps overhaul the Constitution eventually.
 
It is good in aspects such as the reintroduction of the Constitutional Council whereas there’s a lot of haggling over executive presidency and whether the president is the head of government or not. There’s a lot of confusion in these areas.
 
I think the inclusion of the Right To Information Act is good, but one must ask what its scope is. Whether it extends to private persons or whether it’s restricted to public figures only, whether the right of privacy and confidentiality of private persons, unless they are acting in a public dimension, has been balanced and protected must be looked at. The Act itself is alright but again it could do with some fine tuning, but as a Constitutional provision I feel it is good provided we know its scope and how far it extends. I think there are inconsistencies with the Act and the Constitutional provisions. While it is laudable to have it as a fundamental right it must not be done for the sake of it without rectifying these inconsistencies. I believe for the moment it is better to pass the Act first and set the basic model and then fine tune it as required. I don’t know why they put a time frame, but this kind of reform should be done with minimum ambiguity.”
 
Geoffrey Alagratnam PC
(President of the Bar Association)

 


 

The President made the promise to abolish Executive Presidency but still stands by it

 
“There was a draft prepared by Jayampathy Wickremaratne and that draft was approved by the legal draftsmen, and in that there was complete abolition of the Executive Presidential system. But then it was taken up with the cabinet, and members of the JHU along with some members of the SLFP like Nimal Siripala de Silva and Rajitha Senaratne objected to the complete abolition of Executive Presidential power because they wanted the power to only be curtailed.
 
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Either they want to create some conflict between the President and Prime Minister, or they just do not want to abolish it. This was not the initial plan or the promise at the elections and after a cabinet meeting they decided to do away with two provisions of the initial draft. In the original draft the President was the head of State and head of the armed forces, but in the amended draft he is the head of the government as well, whereas it should be the Prime Minister.
 
The President is the one who made the promise to abolish Executive Presidency and he still stands by that. It is the JHU and Certain segments of the SLFP that did not allow it. The other provisions relating to the reintroduction of the Constitutional Council and the Independent Commissions in the 17th Amendment appear to be alright”
 
Lal Wijenayake
(Convenor for Lawyers for democracy)


 

I favour a complete abolition of the Executive  Presidency

“In my view the proposed amendments are good but they do not go far enough. I am disappointed in the provisions pertaining to judicial independence. I think the judiciary must be protected more, particularly with regard to judges being given positions in government departments after retirement. This may incentivise judicial officials to act favourably to the government in the hope of getting certain positions after they leave the bench. If this does not happen at least a minimum of 3 years must lapse before such appointment is made.
 
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This amendment is being passed as expected, but not entirely. There are certain recommendations I made to Dr. Jayampathy Wickremeratne but they were not included. I favour a complete abolition of the Executive Presidential powers because I prefer the Westminster model we had prior to 1978. The primary powers should be with the Prime Minister who commands the majority in Parliament. I don’t subscribe to the view that the Executive Presidency acts as a bastion that hold all the facets of government together, because we functioned perfectly without it. Each of the institutions will perform the necessary functions. I have no objection to the increase in members of parliament to 250 so long as it does not go any further than that, although I feel the number of ministers needs to be curtailed”
 
Dr. Sunil Cooray
(Senior Constitutional Lawyer)


 

There are mechanisms so presidential action will have accountability

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“The gazetted version is different to the version that was presented in parliament, but all the changes to it have been made with cabinet approval. People were discontent about certain provisions. I myself wanted the executive presidential powers abolished. However this Amendment strengthens parliament and brings it to the model we had before 1978. There is a unique provision where the President must seek the advice of the Cabinet before making certain decisions, and the President may request them to reconsider their advice, but if the Cabinet persists with their decision, then it will be taken before parliament for a decision. There are mechanisms placed where presidential action will have accountability. All in all, they have included the proposed reforms consistent with their election manifesto, and I am very happy with it.”
Dr. Jayampathy Wickremeratne
(Senior Constitutional Lawyer)

 

 

 

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