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Thursday, October 22, 2020

Amending 19th Amendment: Are we slashing the nose to spite the face?- Austin Fernando

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Recently, the Cabinet of Ministers decided to amend/repeal (?) the 19th Amendment to the Constitution (hereinafter referred to as 19). The media divulged that the government would retain positive features of the 19 and remove the unwanted. Concurrently, to identify and recommend these a Committee of five was appointed.

Background of 19

The 19 has a chronological evolution. For conceptual value, let us review one aspect – the public service. The 1947 Constitution enabled an independent Public Service Commission (PSC) for them.

In 1972, the Sirima Bandaranaike government placed the public service under a PSC but brought in the Cabinet control for operationalizing. Through the 1978 Constitution, the JR Jayewardene government also placed public servants under the control of the Cabinet. These were acts of continuous politicization.

The Chandrika Kumaratunga government, by the 17th Amendment (Article 54), depoliticized the public service and other democratic aspects by the appointment of a PSC nominated by a Constitutional Council (CC), consisting of politicians and civilians. Seven similar institutions (e.g., the Election Commission, National Police Commission) also were legislated on-demand.

The Mahinda Rajapaksa government passed the 18th Amendment to establish a government-biased “Parliamentary Council” (PC). The President snatched the depoliticization efforts under the 17th Amendment through Commissions.

By 2014, there were criticisms and deep dissatisfaction with politicization created by the actions of all political parties. This dissatisfaction created revitalized pressure for depoliticization. Ultimately, Mr. Maithripala Sirisena sought a mandate for the presidency on the depoliticization slogan. The 19 was the consequence. It is acknowledged that the passage of 19 would have inevitably failed, sans interventions of President Sirisena.

Are our politicians sticks in the mud?

The responses of parliamentarians for depoliticization, in general, had been ridiculous. They supported depoliticization by President Kumaratunga (17A); supported politicization (18A) of President Mahinda Rajapaksa. They helped depoliticization (19A) by President Sirisena. Parliamentarians will sponsor the 20th Amendment to empower President Gotabaya Rajapaksa. Strengthening the hands of the already empowered seems a hobby of Parliamentarians!

Political reactions created humour when a Minister recently declared that support for 19A was due to a promise made to change the electoral system, which of course, is a sheer necessity. Humorously and unfortunately, politicians who agree to change the Constitution on verbal agreements are elected to Parliament.

The clamor reinstatement of powers removed by 19

There is heavy orchestration that security and development would collapse with 19A. From 1978 to 2009, Sinhala and Tamil youth, especially in the North and East, revolted and thousands of innocents were killed or made to disappear, and suspects were killed in Police cells when Executive powers revoked by the 19A were with incumbent Presidents. The Executive powers were inevitably linked to the onset of conflicts. Therefore, it is a wiser step to find alternative solutions for enhancing human security than to demand the return of powers withdrawn by 19.

The same applies to development. Investment attraction during the tenure of President Jayewardene and infrastructural development during President Mahinda Rajapaksa’s (although both face criticisms) were positive moments before the 19th Amendment removed powers. Despite these powers being intact, some Presidents did not undertake such compelling development. I will not mention names to protect their dignity. Thus, one may argue that development isn’t constitution-centric but leader-centric.

There are shortcomings in the 19A since it is a human product. Before the General Election, President Sirisena said that 19A had good aspects, but its flaws should be rectified. He singled out some drawbacks but did not suggest a Deputy Premier post in the 20th Amendment. But it is rumored so.

Meantime, some like Minister Wimal Weerawansa and parliamentarian Gevindu Kumaratunga, who wished immediate abolishing of 19A during the election campaign, now demand a new Constitution instead of patchworking 19 (e. g., dual citizenship issue). It is unknown why this change of heart. Guess is yours!

The President has made a firm statement on the 20th Amendment in his Throne Speech. Therefore, President Sirisena may have to support the abolishing of 19A. In politics, sacrificing principles for partisanship, hollow promises, and tribal branding are acceptable!

The significant changes in 19A are categorized under, change in the qualifications for presidency and powers of the President, enhancement of the capabilities of the Legislature (= Prime Minister), empowerment of Commissions by the Legislature, and the Right to Information.

Changing powers of the President

It is already stated that Articles 30 (2) and 31 (2) of 19, related to the five-year term of office of the President and the two terms in office and the Right to Information Act, would not be amended.

But the government would need the power to dissolve the Parliament without parliamentary consent or completing the four and half years mentioned in 70(1). While President Jayewadene has taught lessons on using alternative powers (i.e., Referendum) not to dissolve, the present government authorities otherwise learned negative lessons in October 2018.

Also, dual citizens are no longer allowed to be Parliamentarians. [Article 91 (d) (xiii)]. Critics who protest dual citizen Arjuna Mahendran appointed as Governor of the Central Bank do not mind a dual citizen becoming a parliamentarian, Minister, Prime Minister or President. Those who support Minister Namal Rajapaksa’s presidential aspirations (if any) seem not to understand that the change of dual citizenship could jeopardize this aspiration by introducing a competitor. Is the demand by some for a brandnew Constitution instead of amending 19 a response for this potential jeopardy?

When queried on these changes, Ministers GL Peiris and Wimal Weerawansa said that constitutional changes should not be person-centric. Based on Minister Peiris referring to Basil and Namal Rajapaksas by name, if the contention is that 19A was person-centric and has disadvantaged selected persons, then the 20th Amendment raises the question of awarding person-centric advantages to another.

Presidential and National Security

Under Article 43 (2) of 19, the Minister of Defense must be appointed from among the Members of Parliament. It is so in other countries that have more significant defence risks (e.g., India). Now the societal belief is that the President is the Minister of Defence. If true, the President has illegally “snatched” the subject of defence. Nevertheless, I passionately believe that the security function should constitutionally remain with the President.

I take this stance on constitutional grounds, quite impersonally. Article 4 (b) of our Constitution stipulates that the “executive power of the people, including the defence of Sri Lanka,” must be exercised by the President. The term defence’ is a specially chosen here. The President has the power and duty to “declare war and peace” [Article 33 (2) (g)]. The appointment of Military Commanders and the Police Chief is a presidential power (Article 61E), and, under Article 33A, the President is accountable to the Parliament on laws applicable to public security. Accountability to Parliament is about the President’s “own” powers, and not of another Defence Minister. The Ministry of Defence/relevant institutions must be under him to fulfil these functions.

When the President is held accountable for the duties performed by another Defence Minister, he is subjected to moral injustice, and the presidency is demeaned. The security/defence of the country is a constitutional responsibility of the President, and the 19th Amendment should be amended to strengthen his hands on defence and security. Technically “snatching security/defence” as purportedly done now is unacceptable. Also, he should not snatch other ministries on this basis, although he may prefer.

Increasing powers of the Legislature and PM

Sovereignty is “exercised and enjoyed” by the tripod Executive, the Legislature, and the Judiciary under Articles 4 (a), (b), and (c) of our Constitution. But what is heard, seen, and said now insinuates that all three functions should be left to the Executive. It seems to be the government’s political stance. It is not constitutional and decimates democracy.

When the Legislature is considered, the power of the President is weakened in several ways. Examples include the appointment of Ministers [(43(2)], non-Cabinet Ministers [[44(1)] ‘on the advice’ of the Prime Minister [43(2)] and remove any one of them on prime ministerial advice [Article 46 (3)(a)]. The power to remove the Prime Minister or any Minister was with the President [47(a)] in the 1978 Constitution.

The number of Ministers is decided by Article 46(1)(a) and (b). With 145 parliamentarians supporting the government President may opt to reward more portfolios and will require amending it.

Article 44(2) of the 1978 Constitution permits any subject or function unassigned to a Minister to be left with the President. This power was removed by 19, and the 20th Amendment may return this power to the President.

The sudden removal of the Prime Minister (as President Kumaratunga did in 2004 and President Sirisena in October 2018) [70(1)(a) of 1978 Constitutionn] is prohibited now. Such restriction is necessary for the stability of the Legislature and the country. Still, I think the 20th Amendment can be used to prevent the judiciary from rejecting such courses of action.

In this connection, the dissolution of the Cabinet and removal of the Prime Minister were issues. During the October 2018 constitutional crisis, it was argued that the President had this power over Article 48 (1) of the Constitution (Sinhala version), which is not in the English version. The judiciary rejected this. Any President will inevitably rush to regain that decisive power.

However, the extent to which these perfections are democratic is most questionable.

Duties of the CC

The CC plays a leading role in depoliticization in 19A. After abolishing 19A, the alternative to the CC could be the passage of an instrument closest to the 18th Amendment. Further provisions can be added as appropriate to concentrate power in the Executive. The 17th and 19th Amendments proposed a CC (including Members of Parliament and civilians). The 18th Amendment appointed a “Parliamentary Council” (PC) consisting of only Members of Parliament. It was total politicization. Although the PC could make nominations to the Commissions and Scheduled Offices in the 18, the President was allowed constitutionally to overrule them. The 19A allowed these appointments to be made only on recommendations of the CC [Article (41B (1)]. If the President did not appoint them within two weeks, they were considered “as deemed to have been appointed.” [Article [41B (4)] It prevented the President’s ‘monopoly’ of appointing. The President would like to use the 20th Amendment to remove these strictures on him.

Appointments under the 19A were mostly acceptable. The best evidence of the independence of the CC was observed when it (inclusive of Opposition membership) rejected two nominations made by President Sirisena to the Supreme Court and the Court of Appeal. On a handful of occasions when the President did not agree to appoint some of the nominees to Commissions, they were successfully reconciled through dialogue. The CC should not be the cat’s paw of the President; nor should the CC be a dictator. Amendments to 19A for efficient and transparent operationalization of the CC could be undertaken now. But what the government needs is to win, at all costs, because of its two-thirds majority!

Critics of the CC highlight the failure to appoint a Police Chief and the conduct of a Member of the Election Commission. To correct these, they demand abolishing the Commissions! The former, I believe, is a result of public service disciplinary procedures that cannot be ignored by the National Police Commission. Critics could have sought legal redress if Article 41A (8) of the Constitution was insufficient to discipline this Member. Providing in 20th Amendment remedies for such will be more effective than crushing the CC. One should not slash the nose to spite the face!

Another complaint is that even the President cannot appoint a judge. The reason may be the failure of President Sirisena to appoint two persons nominated by him to the judiciary. There were Opposition members in the CC when those decisions were made. Yet, they do not accept these reasonable decisions. These are victories for democracy. Also, they are silent that the CC also considers Chief Justice’s recommendations.

If the monopoly on appointing judges is given to the President, there will be no space for objections in the CC. The President is a ‘political product.’ He is a human being. Therefore, the President can appoint his supporters to higher judicial posts from his professional organizations if he so wishes. The President must respect Lord Chief Justice Hewart’s maxim that justice should not only be done but should be seen to have been done.

Of course, one can criticise the CC for some questionable appointments. Again without slashing the nose to spite the face, the 20th Amendment could propose cleaner operational guidelines. In a country where judicial appointments were made (though rarely) based on personal consideration before the 19A, these critics should value the CC machinery as superior to pure presidential whim and fancy.

Information law and action

Some question whether the Right to Information Act is adequately implemented due to deliberated delays by the authorities. Although this is not changed, it is appropriate to strengthen operations through the 20th Amendment. I note that not only the RTI Act but also other Commissions may require similar legal changes.

The value of caution

It is not surprising that a two-thirds majority or a government capable of manipulating that superpower would somehow pursue achieving its goals. Everyone who came to power thought that power was eternal, though it is impermanent. It is also not surprising seeing leadership that utilized the 18th Amendment attempting to regain lost powers. Even the present Opposition may pray for rejuvenation of powers of the 1978 Constitution; because politicians are greedy for power. Therefore, it is not surprising that they are also fluid about 20A.

But it should be kept in mind that if a constitution that cannot be amended again without a 2/3 majority is promulgated today, it could endanger the constitutional complexity another day. The vision and aspirations of the incumbent President may be pure. He may not be entertaining dictatorial goals, as alleged. But we must not be blind, that one day someone like Robert Mugabe or Idi Amin will not emerge. Therefore, it would be better to fertilize democracy without cutting the nose to spite the face when dealing with 19A.

(Austin Fernand has been a  Secretary to the President, a Defence secretary and an ambassador.)

The Island

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