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Saturday, October 24, 2020

Sri Lanka: Presidential accountability is what the 20th Amendment is about – Prof Rohan Samarajiva

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Despite the Government appearing to step back from the planned decimation of the improvements made to the Constitution in 2015, it is likely that some of the key autocratic elements of the original J.R. Jayewardene design made worse by the 18th Amendment will remain in a new draft amendment. Or they may be included in the proposed new Constitution.

The in-your-face nastiness of some of the provisions proposed in the SLPP’s original 20th Amendment caused many critics to neglect other elements and for some to even concede ground. In light of the overall effort to concentrate power in the presidency, it is important to address the Gazetted 20th Amendment’s impact on accountability. Accountability is at the heart of a democratic constitution.

[title]Accountability and the power to dissolve[/title]

Political parties that control the Executive and/or the Legislature are held accountable through periodic elections in all democratic systems. The question of when they are held to account by the public matters.

In the proverbial “first 100 days” it is likely that the party that won the election will sweep any other elections that are held. After that, the popularity of the party in power will wax and wane depending on the external environment (for example, an epidemic or a drought) and how the party responds either in terms of passing laws or through executive actions and depending on the success or otherwise of their policy initiatives.

In the American system of strong separation of powers, election dates are fixed by law. In such countries, one can discern a political cycle. Programs that are likely to win popular approval tend to be concluded prior to the election date. The more problematic events tend to happen in early enough so that they can be forgotten by the time the election comes around. Of course, politicians cannot control all factors. The emergence of a pandemic in an election year threw a spanner in the re-election plans of Donald Trump.

In systems that allow the ruling party to set the election date, the opposition tends to be disadvantaged. The Prime Minister’s ability to dissolve Parliament and call elections at time of his/her choosing is also helpful in controlling ruling-party MPs. It was with the intention of neutralising this power that the Liberal Democrats in the UK pushed through a Fixed Term Parliaments Act in 2011. Under this law, Parliament can be dissolved early only if a simple majority approves a motion of no confidence or if a motion to dissolve Parliament is approved with a two-thirds majority.

Nine years after the Mother of Parliaments abandoned the practice of one person deciding to terminate the mandates of all MPs for his political purposes, Sri Lanka wants to restore that practice. The difference is that the Prime Minister in the UK also must face the hustings. In Sri Lanka, the President can dissolve Parliament any time after a year, with no disturbance to his or her tenure.

If this change is enacted, the MPs will be under the thumb the President, fearing to face another costly campaign, and in the case of first-time MPs, fearing the loss of their pensions. It is unlikely that such a Parliament will serve as an effective check and balance on the President.

[title]President as Minister[/title]

The 19th Amendment allowed the President to be part of the Cabinet and to chair its meetings, but did not permit him to hold a portfolio. There has been little push back on the effort to rescind this provision and to allow the President to hold an unlimited number of portfolios and in addition to assign herself/himself various unallocated agencies.

The damage done to accountability by a President who is outside Parliament is little appreciated today. In the Westminster model, every member of the Cabinet is also a Member of Parliament. They can be held to account in the House by multiple means, including through written and oral questions and no-confidence motions. If the President holds a portfolio, there is no way to hold him accountable in Parliament.

In the US system, all the Cabinet members are outside the Legislature. The separation between the executive and the legislature is clean. Here, all members of the Cabinet (all 15 of them plus several agency heads with Cabinet rank) are held to account through the Committee system. The establishment of oversight committees under the previous Speaker sought to create a similar mechanism for accountability in addition to those available in the Westminster system. It does not appear that the current Speaker intends to continue the oversight committees, preferring the Ministry Consultative Committees chaired by the Minister.

Some believe that the President will not be able to perform his functions as Commander in Chief unless he holds the Defence portfolio. This is peculiar because more warlike nations with executive Presidents such as the US and France have separate individuals holding the positions of President and Minister of Defence.

In those countries, the Defence Minister is appointed by the President. Even under the 19th Amendment, the President has a say in who would be appointed as Minister. If at all, the President could be allowed some special leeway in deciding which of the MPs is named as Minister of Defence. Making the President Minister of Defence is no solution. It breaks the accountability mechanism for one of the most important portfolios.

The whole idea that the President should be able to retain random state agencies is a recipe for subverting accountability, especially in the context of reduced oversight of entities under the President. If the proposal to exclude the Presidential Secretariat and entities under it from audit are implemented accountability will be close to non-existent.

[title]Immunity and accountability[/title]

Even under the 19th Amendment, the President could not be held to account in court for official and private acts while in office. The only exception was in instances when the President’s actions violated a citizen’s fundamental rights. Even here, the President would not be dragged into court as claimed by those who should know better. The Attorney General would be noticed on his behalf.

If the President violates the Constitution, only two remedies are available. The first and the most obvious is impeachment. But this is onerous. It requires approval by 150 MPs and a Supreme Court trial. The other remedy is for a citizen whose fundamental rights have been violated by the President’s action to move the Supreme Court under Article 126. This is the remedy that was used when President Sirisena violated the Constitution.

This is the remedy they are trying to take away. If that succeeds, the President is unaccountable to us, the citizens. He or she can do anything he wants with impunity as long as two-thirds of the MPs are unwilling to impeach.

Parliament under the President’s thumb. A President, unaccountable as Minister but with unlimited Ministries and agencies; unauditable; unaccountable for violating fundamental rights. Is this the essence of the SLPP’s 20th Amendment? Why would 150 MPs support this?

(Courtesy of Daily FT)

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