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Thursday, October 22, 2020

Sri Lanka: Governance without accountability at the core of 20th Amendment – Javid Yusuf

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The 19th Amendment to the Constitution has been criticised and demonised on the basis that it created two centres of power that prevented the smooth functioning of Parliament. As discussed in this column last week this is not substantiated by any evidence.

The fact that there were conflicting opinions between the President and the Prime Minister during the Yahapalana Government that impacted on the performance of that Government is highlighted by the proponents of the 20th Amendment as a justification for abolishing the 19th Amendment. That it was simply the inability of the two leaders to iron out their differences while in Government and not any structural difficulties in Governance caused by the 19th Amendment is lost on those who support the repeal of the changes brought about by the 19th Amendment.

The fact that the 19th Amendment is eminently workable is amply proved by the performance of the Government of President Gotabaya Rajapaksa who was elected to office in November 2019. One of the biggest challenges that the current Government faced since its assumption of office was the situation caused by the COVID-19 Pandemic. The current Government counts its handling of the situation as one of its achievements. The 19th Amendment clearly did not stand in its way in dealing with this challenge.

The main ground on which the proponents of the 20th Amendment wish to repeal the 19th Amendment is that it creates two centres of power — the office of the Executive Presidency as well as the office of Parliament– and thereby making governance difficult. If that was the intention it could have been simply done by transferring all necessary powers to the office of the Executive Presidency.

But the provisions of the 20th Amendment go far beyond that and seek to bring about changes that do not have an impact on the quality of Governance but for collateral purposes. One example is the proposal to remove the bar on dual citizens entering Parliament. Clearly the absence of dual citizens in Parliament does not in any way adversely impact on the quality of governance. In fact this is being increasingly recognised within the ranks of government as evidenced by the number of voices of dissent being raised against the removal of the bar on dual citizens enacted by the 19th Amendment.

Nor does the scheme of appointments to the higher Judiciary and the Independent Commissions set in place by the 19th Amendment impede efficient governance. In fact it does exactly the opposite by strengthening the independence of the administration of justice and depoliticising the public service and police thereby strengthening the efficiency of these agencies of the State.

In the context of the Government announcing its intention to enact a new Constitution it is difficult to understand the indecent haste with which the 20th Amendment is being pursued. It would be prudent to introduce a Constitution after wide consultation and which is acceptable to all sections of society. The new Constitution should facilitate democratic governance and social justice rather than authoritarian tendencies.

Contrary to the claims made that the 20th Amendment is being introduced to remove the obstacles to governance, a number of provisions in fact promote governance without accountability. An examination of some of the new provisions that are included in the proposed 20th Amendment give credence to this conclusion.

The 19th Amendment ensured that even with the reduced powers of the Executive Presidency, the President was subject to the Fundamental Rights jurisdiction of the Supreme Court. Through this process the public could call any action of the President to account and if he was in violation of the Law, the Supreme Court could grant relief to the aggrieved person.

Under the scheme of Governance proposed by the 20th Amendment which entrusts enhanced and almost absolute power to the office of the Executive Presidency, there is no right granted to the ordinary citizen to call the President to account.

The Constitution requires the President to be responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions. While on the face of it this provision makes the President accountable, there is no specific mechanism to make accountability a reality. In fact the power given to the President by the 20th Amendment to dissolve Parliament after one year makes such a provision of little or no effect.

In the event of Parliament seeking to call the President to account he can resort to the simple step of dissolving Parliament with no questions asked.

The current Constitution gives Parliament the power to oversee and monitor Government expenditure. This is a salutary power given to Parliament to ensure that the Government as a whole acts prudently with regard to the finances of the country but here too the power of the President to dissolve Parliament after one year weakens such oversight powers.

Another provision in the proposed 20th Amendment that has serious repercussions for accountability is the proposal to abolish the National Audit Commission and the National Procurement Commission which were set up as a result of the 19th Amendment. In desperation the trade union of Audit representatives have made representations to the Mahanayake Theras regarding this threat to accountability.

Equally dangerous is the weakening of the Right to Information Commission which empowers the citizen to call government to account.

Introducing the 1978 Constitution J. R. Jayewardene justified the Executive Presidency on the grounds that the holder of such office would not be subject to the whims and fancies of Parliament. But today the 20th Amendment seeks to make Parliament subject to the whims and fancies of the Executive President.

The 20th Amendment’s provisions to remove and weaken provisions related to accountability in the Government’s handling of the country’s finances can lead to increased corruption in the country. When the 1978 Constitution was enacted J.R. Jayewardene’s cry was “let the robber barons come”. The 20th Amendment seeks to go beyond this and can result in the creation of more home-grown robber barons.

The 20th Amendment can therefore not only reduce democratic accountability but also economic accountability which can prove disastrous for a country struggling to meet post COVID- 19 challenges to the economy.

(javidyusuf@gmail)

(Sunday Times)

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