If the present Parliament fails to bring in the 19th Amendment, President Maithripala Sirisena has a duty to dissolve it immediately and seek a mandate from the people to elect one which can change the Constitution, noted J.C. Weliamuna, leading human rights lawyer and former Director of Transparency International Sri Lanka.
He pointed out that implementing 19A is everybody’s responsibility but now it is a matter that is in the hands of the 285 Parliamentarians. “Two-thirds of them have to support this, otherwise the President has no option but to dissolve this Parliament,” said Weliamuna, who is also an active member of the People’s Movement for a Just Society.
He stressed that people in the Government who jumped at the last minute or who supported Mahinda Rajapaksa could not suddenly say they are against it. “Failure to bring in the 19th Amendment will be a complete reversal of the mandate of the people.”
Following are excerpts:
Q: What are key changes in the 19 A?
A: These changes are basically shifting governance from a presidential system to a more hybrid system, where Parliament takes control over the Executive. Secondly, there will be institutions as well as independent commissions which strengthen the democratic framework in the country. Thirdly, there are consequential amendments which cater to a more transparent system of governance. These are the main three areas of changes.
The last election was on a political platform demanding the abolition of the executive presidency. All the political parties except the Jathika Hela Urumaya (JHU) wanted a complete abolition. The JHU wanted to trim the powers but 6.2 lakhs of people voted for major abolition of the executive presidency.
In shifting the presidential system from an executive presidency to a parliamentary democracy, there are a few provisions in the Constitution which require a referendum if they were to completely shift those provisions. This particular amendment has been designed carefully not to affect those. One has to understand that some of the provisions have been introduced because they wanted to avoid the referendum.
In a presidential system we had the head of the executive as the president who is also the head of the government and head of armed forces, etc. When it comes to the parliamentary system, the head of the government is the prime minister or the head of the cabinet. One major shift is that the president remains as the head of state. But the head of the government will be prime minister. There are so many countries with this type of system, including France.
The second change is the president acting on the advice of the prime minister. The cabinet is chosen from the parliamentarians and their leader will be the head of government. Therefore the head of the state has to act on the advice on the government.
But since the president remains as the head of state, he will be the person who will be making almost all major appointments, either on the advice of the prime minister or with concurrence of the Constitutional Council. It is actually sharing the responsibilities. So even the worst president coming to power cannot be bad because there will be enough checks and balances. The president cannot dissolve parliament without approval of parliament.
The prime minister and cabinet as well as the president are answerable to parliament now. That means parliament can have systems to question any one of them.
There are transitional provisions too. The present President until his term finishes in five years can be the head of defence or cabinet defence minister and can also hold two ministries, Mahaweli and Environment. It was designed in the Constitutional amendment itself. But after the five years end, no future president can hold any ministries.
The 17th Amendment was brought in with amendments. 17A was the one that introduced independent commissions. 19A will introduce additional commissions. One is the Procurement Commission which will be appointed by the Constitutional Council. The University Grants Commission will also be appointed by the Constitutional Council. There will be an Audit Commission. There are major changes done in that direction.
Previously there was a bit of a mistake with the 17A where once the president is elected he is the one who can appoint the members to the Constitutional Council and the Constitutional Council appoints the commissions. If the president doesn’t appoint his nominee into the Constitutional Council, then these councils cannot function. Now there is a provision that if the president is not appointing the nominees within two weeks, then those members are immediately appointed automatically. The president will have no say after that.
Then there is a very broad audit provision into this. At the moment the Auditor General cannot audit public companies. For example if the government has even 100% shares, because it’s a company, the Auditor General doesn’t have power to audit. That has been changed. Now they can do all types of audit. They can audit public money wherever it is located.
Freedom of Information has recognised as a fundamental right. With that they can soon introduce the Right to Information Act. This act cannot be introduced without this amendment to the Constitution.
Q: What were the submissions at the Supreme Court on the 19A?
A: There were two types of submissions. Some petitioners argued some of the provisions cannot be introduced without a referendum. The Supreme Court has to decide only one question in a constitutional amendment, whether a referendum is required or otherwise. If a referendum is required, then the Supreme Court can say to amend the provisions in a particular way in order to avoid the referendum. There were major challenges with the presidential system itself. They said if the prime minister is going to have the final say, then that changes our Constitutional framework, therefore this requires a referendum. That was the argument. We all appeared in support of citizens. We don’t know what the judgment is. So once the determination comes the Government will have to take a decision.
Unfortunately this has been misunderstood or purposely twisted by some people. They say they are going to change the gazetted Constitution. That is not true. What was gazetted is the one which will go. There will always be further changes to the bill in Parliament. Now there are no surprises. Some amendments we know nobody knew about until they were passed. This time even the committee stage amendments were introduced. This is a very healthy move. This is the first time it appeared.
Q: Are you saying there is no truth to the allegations that the original draft of the 19A was amended before gazetting?
A: The drafting committee has representatives from all the political parties. The Prime Minister was there, all the political parties including the SLFP, JVP, JHU, Tamil and Muslim parties, they all agreed to the 19A. Having agreed, how can they go out and say they are against it? I am surprised. These people are in the Cabinet. How can they make such accusations?
Q: Do you think the 19A has fulfilled what was expected of it?
A: If we don’t want to go for a referendum, this is the maximum we can do.
Q: Some argue 19A strengthens the Executive rather than trimming existing powers?
A: No, I don’t agree with that. At the moment he is the head of state and head of the government. Now with this amendment the prime minister will be the head of the government. Secondly, he cannot unilaterally decide on major appointments. He cannot dissolve parliament. A lot of powers of the president will be curtailed.
Q: Then will 19A pave way for an executive prime ministership?
A: I heard that some people saying we are creating a kind of executive prime ministership. That is absolutely untrue. I would dismiss such accusations as absolute rubbish. Because the executive prime minister means a prime minister who cannot be questioned. The next prime minister after the changes will be questioned by parliament, there is no immunity, and the head of the state is not the prime minister. All these are self-serving arguments and these arguments are absolutely misleading.
Q: Why do you think there is so much opposition within the Government against the 19A?
A: It was a rainbow coalition. This coalition was led by people like you are me, by a civil force. There are some people who try to get the credit. But it is totally misconceiving. It is people on the street with guidance of others such as Ven. Maduluwawe Sobitha Thero who made the change. People in the Government who jumped in the last minute or who supported Mahinda Rajapaksa cannot suddenly say that they don’t want it. That is going against the mandate of the people. I strongly believe this Opposition is challenging the mandate of the people. This is a self-serving objection. I don’t think there is any fairness in this objection. This is a golden moment to move away from the executive presidency. If they don’t support this, they must pay for it. People will curse them forever.
Q: What if the Government fails to get the 19A passed?
A: If the Government fails, that should be understood as a complete reversal of the mandate of the people. Then they have no option but to dissolve Parliament immediately and seek a mandate from the people to elect a Parliament which can change the Constitution. If this Parliament is not doing it, I think the President has a duty to dissolve Parliament immediately.
Q: You played a significant role in bringing Maithripala Sirisena and the Common Opposition together. Don’t you think you have a responsibility to get everybody to support the 19A?
A: Of course. I think everyone of us has a responsibility to get the 19A through. That is why we are organising meetings. But ultimately we have educated the people; now it is a matter for these 285 Parliamentarians. Two-thirds of them have to support this, otherwise the President has no option but to dissolve this Parliament. This is a distorted Parliament; it is against the recently-obtained mandate.
Q: What are the important findings of the SriLankan Airline report?
A: I am sorry I cannot comment on that. I don’t think it is ethical to be the judge and the commenter.
Q: Are you satisfied with the present situation in the country? Do you have any regrets?
A: I have absolutely no regrets. The speed at which things happen is understandably slow. Even when it comes to corruption charges, institutions such as the Police have to work with a group of people who are willing to challenge political power. I think although the Police is slow in some of the investigations, they are doing the right thing. They are not rushing through, they are not going behind people to fix them, and they are following the highest standard of rule of law. Even the people are having concerns; I think they must bear with those authorities for that. We have to understand that those corrupt people in the past regime are richer than even the Government. They can still do anything. It’s the long arm of the law that can basically control their corruption even in the future.
I am not the happiest person when I see some of the Cabinet Ministers who have been recently appointed, but if that is the only way of getting two-thirds in Parliament, I am prepared to take it as the only exception. However, having got to the Cabinet also and if they can’t pass the two-thirds, I think they must be defeated by the people not only by the President.
Q: There are allegations against this Government too?
A: Well, those things should be investigations without any exceptions. Nothing should stop any investigation against any corruption whether it is this Government or the past Government.
FT