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Closer scrutiny of criticisms against 20A

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by C.A.Chandraprema

Over the past several days, we have been hearing various criticisms of the 20A by members of the opposition as well as from pro-government quarters. Some members of the government audit service too came out against certain provisions in the 20A. Are these criticisms valid or are we missing something? If we grade the criticisms that have got the most amount of media coverage from the most serious to the irrelevant, the most serious allegation relates to the issues concerning the Auditor General and the Audit Service Commission.

The decision of the government to abolish the Audit Service Commission and to make changes in the 19th Amendment provisions relating to the Auditor General are being portrayed as preparations for grand larceny on a hitherto unprecedented scale by the new Rajapaksa government. This is due to a misconception about the role of the Audit Service Commission. Many people are obviously under the impression that the Audit Service Commission is similar to the Elections Commission that the 19A created.

 We all know that the Elections Commission is the body that’s responsible for holding elections and after an election, all three members of the Elections Commission sign the Gazette announcing the names of those who have won seats. The Audit Service Commission that the 19A created was not a body like that. It’s not an Audit Commission but an Audit ‘Service’ Commission.  According to Article 153C(1) of the Constitution introduced by the 19A, the sole purpose of the Audit Service Commission is to preside over the appointment, promotion, transfer, disciplinary control and dismissal of the members belonging to the Sri Lanka State Audit Service. The only other task it has been assigned is to prepare the annual estimates of the National Audit Office, but you don’t need an Audit Service Commission for that.

 In other words, the Audit Service Commission was created simply to duplicate the work already being done by the Public Service Commission. The question that has to be asked is, why have a clone of the Public Service Commission just to cater to the rather limited number of employees in the government audit service? Furthermore, if the Auditor General’s subordinates come under a specially created Audit Service Commission, shouldn’t the subordinates of the Attorney General also come under an AG’s Dept. Service Commission? If taken to its logical conclusion, there will be as many ‘service commissions’ as there are divisions of the government service. The decision to abolish the Audit Service Commission is therefore obviously a housekeeping measure so as not to needlessly duplicate work already being done by other bodies such as the Public Service Commission.

 

Powers of the Auditor General

 

Changes have also been proposed to the provisions relating to the Auditor General. Under the 19th Amendment, the provisions relating to the powers of the Auditor General reads as follows:

 “154(1)The Auditor-General shall audit all departments of the Government, the  Office of the Secretary to the President, the Office of the Secretary to the Prime Minister, the Offices of the Cabinet of Ministers, the Judicial Services Commission, the Constitutional Council, the Commissions referred to in the Schedule to Article 41B, the Parliamentary Commissioner for Administration, the Secretary-General of Parliament, local authorities, public corporations, business and other undertakings vested in the Government under any written law and companies registered or deemed to be registered under the Companies Act, No. 7 of 2007 in which the Government or a public corporation or local authority holds fifty per centum or more of the shares of that company including the accounts thereof.”

 Under the proposed 20A, the above provision is to be replaced with the following:

 “154(1) The Auditor-General shall audit the accounts of all departments of Government, the Offices of the Cabinet of Ministers, the Judicial Service Commission, the Public Service Commission, the Provincial Public Service Commissions, the Parliamentary Commissioner for Administration, the Secretary-General of Parliament and the Commissioner of Elections, local authorities, public corporations and business or other undertakings vested in the Government under any written law.”

 We see that under the changes contemplated by the 20A, references to the Office of the Secretary to the President, the Office of the Secretary to the Prime Minister is being taken out of Article 154(1). We also see that companies in which the government owns more than 50% of the shares has also been taken out of Article 154(1) by the 20A Bill. These changes are being portrayed as moves by the President and Prime Minister to create an environment conducive to engaging in grand larceny with complete impunity. The removal of the reference to companies in which the government owns more than 50% of the shares in the 20A is also being portrayed as a situation where all these companies will be placed outside the ambit of the Auditor General. But is that true? It has to be understood that all that the 20A seeks to do with regard to Article 154(1) which deals with the powers of the Auditor General is to restore the status quo ante before the 19th Amendment was enacted – nothing more. Before the 19th Amendment was enacted, the old Article 154(1) was identical to that which is now being proposed in the 20A.

 Does this mean that before the 19th Amendment was enacted, the Offices of the President and Prime Minister and companies in which the state owned more than 50% of the shares, were exempt from the scrutiny of the Auditor General? To make any such assertion would be to be unfair to President J.R.Jayewardene and the UNP which promulgated the 1978 Constitution. The President’s Office and the Prime Minister’s Office were ALWAYS under the purview of the Auditor General under the 1978 Constitution. The reference to “all departments of Government” in the pre-19th Amendment Article 154(1) includes the Offices of the President and Prime Minister. Any pre-19th Amendment version of the Government Financial Regulations will bear this out. This writer is in possession of an old 1992 copy of the government Financial Regulations in which Appendix 10  on pages 411-43 lists the Presidential Secretariat under ‘A Class’ government departments and the Prime Minister’s Office and the Cabinet Office under ‘B Class’ departments. The Office of Former Presidents is also categorized as a ‘B Class’ government department.

 So all these bodies were always under the purview of the Auditor General. This writer can distinctly recall that there were exchanges between members of the opposition and the government regarding the Auditor General’s reports on the President’s Fund during the previous Rajapaksa government long before the 19th Amendment was enacted. All that the 19th Amendment did was to specify the inclusion of the Offices of the President and Prime Minister under Article 154(1) in a situation where they already came under that provision anyway. This a bit like the 19th Amendment repealing Article 42 of JRJ’s 1978 Constitution, and re-enacting it as Article 33A without changing a single word or comma and then claiming that it was the yahapalana government that made the President responsible to Parliament!

 The actual fact was that from the time the 1978 Constitution was first promulgated, the President had always been responsible to Parliament under old Article 42! (It may be stated as an aside that the 20A has sought to undo this piece of chicanery by repealing Article 33A and restoring JRJ’s old Article 42 to its rightful place.) If the yahapalanites fraudulently sought to claim credit for making the President responsible to Parliament by engaging in such blatant manipulation, it’s only to be expected that they would try to do the same when it comes to the changes made to Article 154(1).

 

Government owned companies

 Another criticism being made is that while the 19th Amendment brought companies in which the government owns more than 50% of the shares within the ambit of the Auditor General, the 20A seeks to abolish that provision. To be sure, the 19th Amendment has included under Article 154(1) “business and other undertakings vested in the Government in which the Government or a public corporation or local authority holds fifty per centum or more of the shares”. The 20A replaces this with the more general phrase “business and other undertakings vested in the Government”. Some members of the government audit service even went to see the Ven. Mahanayake Theras and complained that all the companies in which the government owns more than 50% of the shares were to be taken out of the ambit of the Auditor General. That too is a false assertion. Companies in which the government owns more than 50% of the shares refers to business undertakings like Lake House and Lanka Mineral Sands Ltd. The Auditor General did audit the accounts of such companies even in the pre-19th Amendment era.

 However both before and after the 19th Amendment, it was not mandatory for any business undertaking in which the government held shares over 50% to use the services of the Auditor General. Article 154 (2) of the Constitution as introduced by the 19th Amendment reads as follows:

 “154 (2) Notwithstanding the provisions of paragraph (1) of this Article, the Minister in charge of any such public corporation, business or other undertaking or a company referred to in paragraph (1) may, with the concurrence of the Minister in charge of the subject of Finance and in consultation with the Auditor-General, appoint a qualified auditor or auditors to audit the accounts of such public corporation, business or other undertaking or a company referred to in paragraph (1). Where such appointment has been made by the Minister, the Auditor General may, in writing, inform such auditor or auditors that he proposes to utilize his or their services for the performance and discharge of the Auditor-General’s duties and functions in relation to such public corporation, business or other undertaking or a company referred to in paragraph (1) and thereupon such auditor or auditors shall act under the direction and control of the Auditor-General.”

 Before the 19th Amendment, the old Article 154(2) read as follows:

 “154 (2) Notwithstanding the provisions of paragraph (1) of this Article, the Minister in charge of any such public corporation or business or other undertaking may, with the concurrence of the Minister in charge of the subject of Finance, and in consultation with the Auditor-General, appoint a qualified auditor or auditors to audit the accounts of such public corporation or business or other undertaking. Where such appointment has been made by the Minister, the Auditor-General may, in writing, inform such auditor or auditors that he proposes to utilize his or their services for the performance and discharge of the Auditor-General’s duties and functions in relation to such public corporation, business or other undertaking and thereupon such auditor or auditors shall act under the direction and control of the Auditor-General.”

 Readers will note that the content of the two provisions are identical. Both before and after the 19th Amendment, the Minister in charge of the subject may appoint an audit firm to audit the accounts of a government owned company. In doing so, he is required to obtain the concurrence of the Minister of finance, and to consult the Auditor General. After an audit company has been appointed to audit the accounts of a mostly government owned company, the Auditor General can write to that audit company and make them perform their duties under the direction of the Auditor General. Nothing has changed in this regard before and after the 19th Amendment. So if anyone claims that the 20th Amendment seeks to take companies in which the government owns more than 50% of the shares out of the ambit of the Auditor General, that’s a complete falsehood.  

 

Urgent Bills and dual citizenship

 

One of the changes made by the 19th Amendment was to amend Article 78 so that the time that had to lapse between Gazetting a Bill and presenting it to Parliament was increased from seven days to fourteen days. The 19A also repealed Article 122 which made provision for urgent Bills. Under the provisions of old Article 122, if the Cabinet certifies a Bill as being urgent in the national interest, the provision that a certain number of days has to lapse between the time a Bill is gazetted and presented in Parliament will have no application. The provision of Article 121 which enabled citizens to challenge the constitutionality of a Bill within one week of it being placed on the order paper of Parliament also ceased to apply. When Article 122 was invoked in the case of urgent Bills, the President could write to the Chief Justice requesting him to issue a special determination on the constitutionality of that Bill and the Supreme Court had to make their determination within 24 hours or a period not exceeding three days, as specified by the President.

 The 20A proposes to revive the provision for urgent Bills by re-enacting the old Article 122. The 20A also proposes to amend Article 78 so as to shorten the time between the gazetting of a Bill and its introduction in Parliament from fourteen days to seven days as it was in the pre-19th Amendment days. The proposed reintroduction of this provision for urgent Bills by the 20A has also run into much criticism. According to this writer’s recollection, nobody had any real issue with the provision for urgent Bills in Article 122 until for more than three decades until the 18th Amendment to the Constitution was brought forward as an urgent Bill in 2010. The NGO lobby which seeks to hit out at the government with everything they can lay their hands on, raised a hue and cry about the 18th Amendment being introduced as an urgent Bill. However in actual fact, even if the 18th Amendment had been introduced as an ordinary Bill, and gazetted seven days before it was presented in Parliament, as per the provisions of Article 78, the end result would be the same. 

 Even urgent Bills have to go before the Supreme Court. If there was anything unconstitutional in the 18th Amendment, it would have been shot down by the SC. If it was not shot down by the SC, then it was going to be passed anyway because the 2010 government had a steamroller majority in Parliament. The fact that it was brought as an urgent Bill had little or no impact on how things finally turned out. Yet the provision for urgent Bills itself became a target of those opposed to the Rajapaksas. As a matter of principle, every country should be able to introduce urgent legislation when the need arises. This is a necessary safeguard and a fallback position. The antipathy to the provision for urgent Bills stemmed from the fact that it was used to bring in a constitutional amendment. However the proposed Article 122 in the 20A has taken this into consideration and introduced a totally new clause 122(3) which states that the provisions relating to urgent Bills will not apply to any Bill for the amendment of the Constitution. If the 20A is passed into law, the provision for urgent Bills cannot be used to bring in constitutional amendments.

 The 20A also seeks to repeal Article 91(1)(d)(xiii) by which the 19th Amendment added dual citizenship to the list of disqualifications for election to Parliament. Nobody in this country had any issue with dual citizens contesting elections. This became an issue only because the yahapalana government wanted to remove Gotabaya and Basil Rajapaksa from politics. To countenance this will mean wholesale surrender to yahapalana thinking. The yahapalana side is trying to pass off one of the most egregious outrages they committed as a virtue. We have heard some people citing the instance of Arjuna Mahendran to justify the ban on dual citizens contesting elections. However, Mahendran was not a dual citizen. He was a Singaporean not holding any kind of Sri Lankan citizenship. 

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Politics

Pompeo’s visit

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The Island of 26/10 carried a news item, on the visit of Pompeo’s to Sri Lanka while also covering India and the Maldives. With just eight days for Presidential Elections in the US, there must be great urgency for the visit with respect to the Maldives. One possibility is to try and get Maldives to recognise Israel, a foreign policy triump for a beleaguered Trump. This will add  to, UAE, Bahrain and Sudan which are already in the quiver. The US has no borders in the Indian Ocean. The visits to India and Sri Lanka could only be side-shows.

The US says it is concerned about “a strong, independent and democratic Sri Lanka”. So is Sri Lanka about a democratic US, the first democratic country in the modern world. The US could justify its commitment to democracy by accepting a peaceful transfer of power to the elected one, after the elections. Seeing the emerging chaos in the US election, the US may like to get technical assistance from our Election Commission on how to run elections.

The Foreign Minister could take this opportunity, to canvass the US for her approval of the Nuclear Test Ban Treaty. This would make Sri Lanka, The Mouse that Roared. 

Jolly Somasundram

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Silent death of constitutional holy cows

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by C.A. Chandraprema

That the 20th Amendment was passed does not come as a surprise. That some opposition MPs voted with the government also does not come as a surprise and neither does the fact that the unity of the governing coalition held during the voting despite the sparring between constituent sections of the government that had been going on for weeks over some provisions of the Amendment. What was surprising however was the manner in which some constitutional shibboleths of the past went into oblivion silently and almost unnoticed. The carcasses of several constitutional holy cows of the past can literally be seen lying dead on the streets.

When the 20th Amendment to the Constitution was first Gazetted as a Bill, this writer stated that some of the changes envisaged in that Amendment were urgent and could not wait until a new Constitution was drafted. Foremost among these was the abolition of the Constitutional Council which had the final say in making important appointments to high state positions like the Attorney General, the IGP and the Judges of the higher judiciary as well as the bodies like the Elections Commission, the Public Services Commission, and the Police Commission. Even after a presidential election and a parliamentary election, and the complete rout of the yahapalana political parties, five of the eight remaining members of the Constitutional Council (after the resignation of one member and the defeat of yet another member at the parliamentary elections) were yahapalanites who would have the final say in making all important state appointments until October 2021.

 

Misconceived institution

Getting rid of this Constitutional Council was what imbued the 20th Amendment with urgency. Yet this was one of the most cherished holy cows of the yahapalana camp. The 20th Amendment gave rise to a great deal of controversy and discussion, but one of the matters that was almost never mentioned was the abolition of the Constitutional Council. Back in 2001, when the 17th Amendment was introduced, it was all about the Constitutional Council and the need to take the power to make important state appointments out of the hands of the President and to give it not to Parliament and not to any elected representative of the people, but to unelected persons nominated by the political parties in Parliament. The first Constitutional Council created by the 17th Amendment had only three Parliamentarians but had seven outsiders.

The tautological absurdity of taking the power to make appointments to important state positions away from the President and away from Parliament and giving it to outsiders who however were appointed by the political parties in Parliament was lost on the proponents of the 17th Amendment – so firmly held was the view that elected politicians should not have a say in making important appointments to state positions. The prejudice seemed to be against elected representatives of the people. So long as you were not an elected representative it did not matter even if the members of the Constitutional Council were hangers on and nominees of political parties! When the 19th Amendment reintroduced the Constitutional Council in 2015, the proportion of parliamentarians to outsiders was reversed and it had seven Parliamentarians and only three outsiders, thanks to the furious resistance of the UPFA and its allies. If the yahapalanites had had their way, the Constitutional Council established by the 19th amendment would also have had only three Parliamentarians as against seven unelected outsiders.

When the 20th Amendment finally did away with the Constitutional Council that was introduced by the 19th Amendment, this yahapalana holy cow went into oblivion silently, and unnoticed. Even the remaining yahapalanites in Parliament did not agitate for its retention or even mention it by name during the weeks of public debate over the 20th Amendment. If they did mention the Constitutional Council, the media did not pick it up. What sealed the fate of the whole concept of the Constitutional Council was the manner in which the yahapalana political parties divided up the positions in the government and the opposition among themselves and stuffed the Constitutional Council full of yahapalanites without a single member to represent the real opposition in the country. The entire concept of the Constitutional Council was perverted and destroyed so completely, that not a single yahapalanite stood up to defend the Constitutional Council and to agitate for its continuation.

Even Karu Jayasuriya who Chaired the yahapalana Constitutional Council in his capacity as the Speaker and who obviously reveled in that role, did seem not come to the defence of the Constitutional Council in a major way, choosing instead according to some news reports, to oppose the 20th Amendment on the slogan of preventing dual citizens from becoming elected representatives of the people. Thus died a misconceived institution. On the one hand we talk of democracy and free and a fair elections, but try to argue that somehow, those who are democratically elected to positions of power should not be trusted with making appointments to important state positions and the power to make such appointments should as far as possible be given to unelected persons. Hopefully this is the last we hear of harebrained mechanisms like the Constitutional Council.

 

The defence portfolio issue

The other urgent matter that needed to be cleared up by the 20th Amendment was whether the President could hold the defence portfolio or not. The 19th Amendment had sought to bar the President from holding any portfolio by the repeal of the old Article 44(2) which said that the President may assign to himself any subject or function and shall remain in charge of any subject or function not assigned to any Minister. President Sirisena was allowed to hold the defence portfolio and the environmental portfolio by means of a transitional provision in the 19th Amendment. The repeal of old Article 44(2) and this transitional provision was supposed to imply that the President could not hold any portfolio, not even the defence portfolio even though the President was a member and the head of the Cabinet and Article 4 of the Constitution said that the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President.

This was a matter that needed to be cleared up urgently one way or another without waiting for the new Constitution which could take up to another year or more. The 20th Amendment sought to clear this up by reinstating the old Article 44(2). The restoration of the President’s power to hold portfolios was passed without any controversy or anybody seeming even to notice it. In the past, reducing the powers of the Presidency was the pivot around which the entire constitutional reform exercise revolved. The attempt to block the President from holding ministerial portfolios was a measure taken to reduce the power of the presidency introduced by the 19th Amendment. The absurdity of designating the President as the head of State, head of the government, head of the Executive, head of the Cabinet and then trying to prohibit the holder of that office from holding a ministerial portfolio was lost on the drafters of the 19th Amendment. Now this inconsistency too has been put right by the 20th Amendment. Thus the two most urgent provisions in the 20th Amendment have been passed with little or no controversy or even discussion. The former yahapalana hegemons who are now in the opposition in fact did not really defend the specific provisions of the 19th Amendment. They only expressed opposition to the 20th Amendment as a whole.

 

The vital elements in Article 70(1)

 

Another important issue that needed to be corrected even though it was not perhaps as urgent as the previously mentioned issues was the prohibition brought by the 19th Amendment on the dissolution of Parliament before the lapse of four and half years from the date of its first meeting, unless Parliament passes a resolution requesting dissolution with a two thirds majority. The rectification of this issue was not considered to be as urgent as the two issues mentioned earlier only because the present government has an overwhelming majority in Parliament. Had a government with only a slim majority in Parliament been in power, this issue would have been right at the top of the priority list. When the 19th Amendment repealed and replaced old article 70(1), the provisions that existed from the inception of the 1978 Constitution providing for the dissolution of Parliament in the event of the defeat of the government at a vote on the budget, or the statement of government policy or a no-confidence motion, were also dropped.

Thus, the Article 70(1) introduced by the 19th Amendment constituted a total prohibition on the dissolution of Parliament until the lapse of four and a half years quite irrespective of whether the government in power had enough support in Parliament to get the budget or a statement of government policy passed and to survive a no-confidence motion. What the 20th Amendment sought to do was to repeal the 19th Amendment’s Article 70(1) and to replace it with the pre-19th Amendment Article 70(1). In making this switch, only one aspect of the pre-19th Amendment Article 70(1) came to the attention of the Supreme Court. That was the period of one year during which the President could not dissolve Parliament if the previous Parliament had been dissolved by the President at his discretion.

The Supreme Court quoting a previous SC determination stated that if this period during which the President is barred from dissolving Parliament is too long, it may be contended that the President’s power of dissolution which operates as a check to sustain the balance of power is denuded of its efficacy. But, if we strike middle ground, the balance of power itself being the overall objective, and decide on a period of two years and six months, that sufficiently addresses concerns with regard to this provision and it could be passed with only a two thirds majority in Parliament and will not require a referendum. Now after the 20th Amendment, the President can dissolve Parliament after two and a half years instead of the one year period in the old article 70(1) which existed before the 19th Amendment. This however was not the issue with regard to the post 19th Amendment Article 70(1). It would not have mattered even if the period during which the President could not dissolve Parliament was retained at four and a half years if the President’s power to dissolve Parliament in the event the parliamentary government loses a budget, a vote of no confidence, or a statement of government policy was restored. The 20th Amendment has restored the President’s ability to dissolve parliament if the Parliamentary government is showing signs of collapse by being unable to get a budget passed or to survive a no confidence motion etc. and that’s what really matters.

 

SC on the provisions that raised controversy

The provisions relating to Urgent Bills which were to be reintroduced into the Constitution by the 20th Amendment raised some controversy. When the Cabinet is of the view that a particular Bill is urgent in the national interest and makes an endorsement to that effect, the President shall require the special determination of the Supreme Court on the

consistency or inconsistency of any provisions of the Bill by a reference addressed to the Chief Justice. The Supreme Court should make its determination in twenty-four hours or such longer period not exceeding three days as the President may specify. Petitioners against the 20th Amendment contended that this provision impacts on the People’s judicial power as well as legislative power and that the restrictive time period set out not only hinders but also unfairly curtails the exercise of judicial power. Furthermore they claimed that giving the Executive discretion in deciding the time period within which the determination should be made encroaches into the judicial power of the Courts.

The Supreme Court’s reaction to such contentions was to observe that the 20th Amendment Bill amends Article 123 of the Constitution by the insertion of a new paragraph which states that if the Supreme Court entertains a doubt whether the Bill or any provision thereof is inconsistent with the Constitution, it shall be deemed to have been determined that the Bill or such provision of the Bill is inconsistent with the Constitution. The required nature of the determination is thereby limited to the expression of “entertaining a doubt” rather than a specific determination on the Constitutionality of the Bill or any of its provisions. As for the President fixing the timeframe within which the SC has to respond, the SC observed that Article 129(1) of the Constitution also empowers the President to refer a question to the Supreme Court to obtain its opinion within a time specified by the President.

Therefore, empowering the Executive to set a time period within which a Court should provide its determination per se does not infringe on the Sovereignty of the People. The SC further observed that the relevant provision does not exclude or prohibit an interested party intervening in proceedings relating to a hearing on such Bill. Furthermore the provision concerned makes it mandatory that such Bill be submitted to judicial review through the prescribed process. Therefore the provisions relating to urgent Bills in the 20th Amendment does not require a referendum and can be passed with a two thirds majority in Parliament.

When it came to Dual Citizenship, Petitioners against the 20th Amendment contended that the removal of this disqualification infringes Articles 1 and 3 of the Constitution. They contended that persons who hold a dual citizenship have split loyalties. When they pledge allegiance to two sovereign nations, their capacity to take decisions with the sole idea of protecting and preserving the Sovereignty of one country would be compromised; specially, in situations of conflict of interests between the two countries. Such situations can always arise in many areas of concern including, commerce, trade, defence and in addition on bi-lateral and multi-lateral relations when both countries become relevant parties.

The Attorney-General’s contention was that even a dual citizen has the right to be treated equally and enjoys all the rights of a person who is a citizen of Sri Lanka, only. He further stated that Article 26(2) and (3) of the Constitution prohibit making any distinction on the manner on which citizenship was acquired, Citizens by descent and citizens by registration will have same rights. It was further contended that under the provisions of the Citizenship Act it is only a person who had had been a citizen of Sri Lanka who could gain the dual citizenship. The AG argued that the Petitioners’ claim of “split loyalties” and “conflicts of interests” are mere surmise and conjecture. The SC was of the view that a decision on the inconsistency or consistency with a Constitutional provision cannot be based on surmise and conjecture and further that in the exercise of jurisdiction in relation to an amendment to the Constitution, does not extend to consideration of the desirability of a provision or to delve into policy matters. The SC’s sole consideration would be the constitutionality of the provision.

Only one really important provision of the 20th Amendment was shot down by the Supreme Court on the grounds that it would require a referendum in addition to a two thirds majority in Parliament. This was the restoration of the immunity of the President from suit as it existed before the 19th Amendment. The Supreme Court held that the removal of the existing right guaranteed through the Constitution to the People to invoke the jurisdiction of the Supreme Court under Article 126 in relation to acts of the President is inconsistent with Articles 3 and 4 of the Constitution and therefore would require a referendum in addition to a two thirds majority in Parliament.

 

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Drafting of new constitution begins

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by C.A.Chandraprema

The drafting of the new constitution to replace the 1978 constitution has begun even before the 20th Amendment has been through the committee stage in Parliament. The Special Experts Committee to Draft a New Constitution headed by President’s Counsel Romesh de Silva has been allocated offices in the BMICH, and three senior officers of the Ministry of Justice have been appointed to the Secretariat of the Committee. Sittings of the committee have already commenced with meetings being held every Friday. Two formal weekly meetings have already been held.

The other members of the committee are President’s Counsel Manohara De Silva, President’s Counsel Sanjeewa Jayawardena, President’s Counsel Naveen Marapana, Prof. Nazeema Kamardeen, Dr. A. Sarveswaran, President’s Counsel Samantha Ratwatte, Prof.Wasantha Senevirathne and Prof.G.H.Peiris. The fact that this Committee has commenced work would have been headline news in normal circumstances but it has been completely overshadowed by the latest Covid-19 outbreak.

 For that matter, Covid-19 has drowned out the noise generated over the 20th Amendment as well. The government can be seen to be taking a very cautious approach to this Covid-19 cluster with whole villages and individual establishments being shut down at the slightest suspicion that an infected person may have visited the place concerned. Quite a number of false alarms have been reported but the government is proceeding on the basis that it’s better to be safe than sorry. There seems to be little doubt that the government agencies concerned will be able to get over this latest Covid crisis as well.

 Even though yahapalana theorists have raised a mighty caterwaul of protest claiming that the 20th Amendment will give rise to authoritarian rule, the 20A only restores the constitutional provisions that existed before the 19th Amendment, which essentially means that after the 20th Amendment, the President will have the approximately the same power that past Presidents J.R.Jayewardene, R.Premadasa, D.B.Wijetunga, Chandrika Kumaratunga, Mahinda Rajapaksa and even Maithripala Sirisena had. Even though the 19th Amendment removed some of the powers of the President, the yahapalana President Sirisena continued to enjoy those powers through other means and it’s only the incumbent President Gotabhaya Rajapaksa who has had to bear the full brunt of the 19th Amendment.

 

Yahapalana sleight of hand

 One significant way in which the 19th Amendment sought to truncate the President’s powers was by establishing the Constitutional Council which would have the final say in making appointments to important state positions. After the establishment of the Constitutional Council, the President cannot appoint members and Chairmen of Commissions set up by the 19th Amendment such as the Public Service Commission, National Police Commission, the Election Commission, and several other such commissions without the individuals to be appointed being recommended by the Constitutional Council. Likewise when it came to the appointment of Judges to the Supreme Court and the Court of Appeal, the Attorney-General, the Auditor-General and Inspector-General of Police and other such high state positions, any person appointed by the President to such positions had to be approved by the Constitutional Council. Thus either way, it’s the Constitutional Council that has the final say in making such appointments and not the President.

 Even though these provisions in the 19th Amendment were supposed to limit the powers of the President, they did not limit President Sirisena’s or the yahapalana government’s powers because the yahapalana political parties working in concert divided up the parliamentary government and the parliamentary opposition among themselves and established a complete hegemony over the Constitutional Council. It goes without saying that if the political backers and promoters of the President have complete and total control over the Constitutional Council, it’s the same as the President exercising those powers and that was the situation during the Sirisena Presidency. President Sirisena’s political setup enjoyed the same powers over high appointments that the political setups of his predecessors did.

 Another way in which the 19th Amendment sought to limit the powers of the President was by not allowing the President to hold any ministerial portfolios. Hence the pre-19th Amendment Article 44(2) of the Constitution which said that the President may assign to himself any subject or function and shall remain in charge of any subject or function not assigned to any Minister was repealed. Even though the 19th Amendment never expressly said that the President could not hold a portfolio, the repeal of Article 44(2) was supposed to mean that despite the fact that even under the 19th Amendment, the President continued to be the Head of the Government and the Head of the Cabinet he could not hold a ministerial portfolio. President Sirisena was not affected by this limitation because a transitional provision in the 19th Amendment allowed him not only to assign to himself the subjects and functions of Defence, Mahaweli Development and Environment so long as he holds the Office of President but also to determine the Ministries to be in his charge for that purpose. So all that President Sirisena had to do was to decide upfront which ministries he wanted. All Presidents do in fact decide upfront which ministries he would hold, so President Sirisena despite the 19th Amendment was able to do what all his predecessors did in this regard.

 

The genuine changes

To be fair, there were in fact a few genuine ways in which President Sirisena’s powers differed from those of his predecessors. The first and foremost of these was that the tenure of the presidency was shortened from six years to five years by changes made to Article 30(2). This was a genuine change and the 20th Amendment seeks to retain this without alteration. Another genuine change was the effective removal of presidential immunity by the 19th Amendment by means of changes made to Article 35(1) of the Constitution. Article 35(1) as amended by the 19th Amendment states that 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, provided that this shall not be construed as restricting the right of any person to make a fundamental rights application in the Supreme Court under Article 126 against the Attorney-General, in respect of anything done or omitted to be done by the President, in his official capacity.

 Making the President subject to fundamental rights litigation basically makes it possible to challenge any action that the President takes. In fact the 19th Amendment specifically stated that the Supreme Court shall have no jurisdiction to pronounce upon the exercise of the powers of the President only when it comes to declaring war and peace – which establishes that the Supreme Court can pronounce judgments on virtually everything else other than that one exception. President Sirisena was subject to this provision during his tenure and this was a genuine change made by the 19th Amendment. But it’s an unusual, and arguably counter-productive change. Even under the 1972 Constitution, the ceremonial President was designated the head of the Executive who was required to act on the advice of the Prime Minister. Article 23 of the 1972 Constitution stated that while any person holds office as president, no civil or criminal proceedings shall be instituted or continued against him in respect of anything done or omitted to be done by him in his official or private capacity.

 If one takes the Ceylon Constitution Order in Council of 1946, the Executive power was exercised on behalf of the British crown by the Governor-General who was required by convention as mentioned in Article 4(2) of that Constitution to act on the advice of the Prime Minister and Cabinet. Even though the Governor General was the representative of a titular head of state, even he was protected from litigation with the proviso that no act or omission on the part of the Governor-General shall be called in question in any court of law. We see the same protection accorded to the President of India. Article

53(1) of the Indian constitution says that the  executive  power  of  the  Indian Union  shall  be vested  in  the  President. Article 77(1) states that  all  executive  action  of  the  Government  of India  shall  be  expressed  to  be  taken  in  the  name  of  the President. Article 74(1)  requires the Indian President to act on the advice of the Prime  Minister and the  Council  of  Ministers  and the question whether any, and if so what, advice was  tendered  by  Ministers  to  the  President  cannot  be inquired  into  in  any  court. Under Article 77(2) of the Indian constitution, orders and other instruments made and executed in the name of the President shall not be called in question on the ground that it is not an order or instrument made or executed by the President.

 Thus we see that in the 1946 Ceylon Constitution Order in Council, the first Republican Constitution of 1972 and the second Republican Constitution of 1978, and even in the Indian Constitution, the actions of the head of the executive had always been given immunity from litigation. If the actions of the executive can be subject to litigation, then it can be argued that the final arbiter if not the wielder of executive power will be the judiciary and not the executive. The immunity of the President from suit was removed on the argument of limiting the President’s executive power. That gives the impression that before the 19th Amendment was passed there were no limits on the President’s executive power.

 

President never had unlimited power

 Two Supreme Court cases presided over by former Chief Justice Sarath N.Silva indicate otherwise. The 2006 landmark judgment in Nallaratnam Singarasa vs the Attorney General stated as follows:

“The President exercises the executive power of the People and is empowered to act for the Republic under Customary International Law and enter into treaties and accede to international covenants However,… such acts cannot be inconsistent with the provisions of the Constitution or written law. This limitation is imposed since the President is not the repository of the legislative power of the People…. such a treaty or a covenant has to be implemented by the exercise of legislative power by Parliament and where found to be necessary by the People at a Referendum to have internal effect…where the President enters into a treaty or accedes to a Covenant which is “inconsistent with the provisions of the Constitution or written law”… such act of the President would not bind the Republic qua state….”

Then there was the famous Waters Edge judgment of 2008 (Sugathapala Mendis and Another vs Chandrika Kumaratunga and Others) where it was stated as follows:

 “The principle that those charged with upholding the Constitution – be it a police officer of the lowest rank or the President – are to do so in a way that does not “violate the Doctrine of Public Trust” by state action/inaction is a basic tenet of the Constitution which upholds the legitimacy of Government and the Sovereignty of the People. The “Public Trust Doctrine” is based on the concept that the powers held by organs of government are, in fact, powers that originate with the People, and are entrusted to the Legislature, the Executive and the Judiciary only as a means of exercising governance and with the sole objective that such powers will be exercised in good faith for the benefit of the People of Sri Lanka. Public power is not for personal gain or favour, but always to be used to optimize the benefit of the People. To do otherwise would be to betray the trust reposed by the People within whom, in terms of the Constitution, the Sovereignty reposes. Power exercised contrary to the Public Trust Doctrine would be an abuse of such power and in contravention of the Rule of Law.”

 The Water’s Edge judgment also quoted a previous 1998 judgment by Justice Mark Fernando, Karunathilaka v Dissanayake which stated as follows: “The immunity conferred by Article 35 is neither absolute not perpetual….Article 35 only prohibits the institution (or continuation) of legal proceedings against the President while in office; it imposes no bar whatsoever on proceedings against him when he is no longer in office…To hold otherwise would suggest that the President is, in essence, above the law and beyond the reach of its restrictions. Such a monarchical/dictatorial position is at variance with (1) the Democratic Socialist Republic that the preamble of the Constitution defines Sri Lanka to be, and (ii) the spirit implicit in the Constitution that sovereignty reposes in the People and not in any single person.”

 

Keeping yahapalana overkill in check

 All these cases were heard long before the 19th Amendment. Thus the proviso to article 35(1) introduced by the 19th amendment enabling fundamental rights cases to be filed against the AG over actions taken by the President was clearly a case of yahapalana overkill. The removal of this proviso and the restoration of the pre-19th Amendment Article 35 does not turn the President into an autocrat. It just provides the executive branch of the government the leeway to exercise the powers vested in the executive. While it’s true that former presidents in Sri Lanka have been accused of being authoritarian, the same accusation has been levelled at former Prime Ministers like Mrs. Sirima Bandaranaike. Much the same thing was said about Mrs. Indira Gandhi as well.

 The person holding the title and functions of head of the government can be as authoritarian or as liberal as he or she is inclined to be. In fact it may be argued by some that Prime Ministers have even greater potential and incentive to be authoritarian because no Prime Minister in the world seems to have term limits whereas almost all presidential systems do have term limits. Even the 20th Amendment will retain the two term limit for the President. Lee Kuan Yew was a Prime Minister but he too was accused of being authoritarian. It just so happens that Presidents tend to attract more charges of authoritarianism than Prime Ministers even though everyone knows at the back of their minds that Prime Ministers who are heads of government can be as every bit as authoritarian as any President holding the position of head of government.

 It’s interesting to speculate on why this is so. Is it because the President sits and does his work in grand isolation whereas the Prime Minister sits in Parliament with everyone else and is available to be heckled and booed at? Is it because the President once elected, is very difficult to remove whereas the Prime Minister (at least theoretically) can be thrown out at any moment through a Parliamentary revolt? It has to be noted that under the presidential system introduced by the 1978 Constitution, the President cannot rule without the support of Parliament. In 2001, at a time when President Chandrika Kumaratunga possessed all the powers of J.R. Jayewardene’s presidency, her party lost a parliamentary election and lost her majority in Parliament. She gave all powers to the newly elected Prime Minister Ranil Wickremasnghe and took a back seat for a while. Despite all the hype about authoritarian Presidents, the fact is that both Presidential heads of government and Prime Ministerial heads of government that this country has had in the past, have been completely dependent on Parliamentary majorities to govern. No President can override Parliament even under the pre-19th Amendment 1978 Constitution.

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