What’s in the 19th Amendment For Me?

Image Courtesy of The Daily Mirror

The true value and effectiveness of the 19^th Amendment for improving governance in Sri Lanka has been a matter of debate for some time now. Political representatives and political parties have expressed different views, primarily negative, about this Amendment. How should citizens think about this Amendment and why does that matter? I think there are at least five aspects to this Amendment that citizens should consider seriously when engaging with the ongoing debate. They are: 1) the political context in which the 19^th Amendment was enacted, 2) the self-evident strengths of the Amendment, 3) its wide ranging progressive reforms, 4) its effect of increasing accountability and transparency in government and 5) the way in which the Amendment strengthens our fourth branch institutions.

1. Sri Lanka’s problematic track record of constitutional amendments

Of the 19 Amendments to the Constitution of 1978, the 17^th and the 19^th Amendments are easily the only amendments that increased accountability for the exercise of public power. The progressive impact of these reforms has been cast in a negative light due to problematic processes followed in the adoption of these amendments and a poor record in the effective implementation. The concept of an independent body for appointments to certain offices was proposed initially by the Presidential Commission on Youth in 1990. The 17^th Amendment introduced such a body, the Constitutional Council (Council), for the first time. However, the Council was not constituted from 2006 onwards. And, until the repeal of the 17^th Amendment in 2010, appointments were made in violation of the 17^th Amendment. In 2010, the 17^th Amendment was effectively repealed by the 18^th Amendment. In 2015, the 19^th Amendment was proposed and adopted largely due to the pressure brought upon by civil society actors that demanded accountable governance. The 19^th Amendment re-introduced a Constitutional Council. However, unlike the 17^th Amendment, the 19^th Amendment included a range of other reforms, including to the powers of the President.

2. Self-evident strengths of the 19^th Amendment

The value of certain features of the 19^th Amendment are self-evident.  For the first time since the 1978 Constitution was adopted, the fundamental rights chapter was expanded. The right to information, previously recognised by the judiciary, was included. Access to information is foundational to strengthening accountability and transparency in government and has proven to be so on several occasions since the implementation of the Right to Information Act.

The 19^th Amendment introduced a ceiling of 30 to the number of ministers in a Cabinet. Jumbo cabinets have been a serious issue in Sri Lanka. Lacking any scientific basis, jumbo cabinets have cultivated a perks-seeking attitude in representative politics. The distribution of portfolios in this manner has compromised evidence-based and rational policy making.

The 19^th Amendment reduced the scope of immunity of the Executive President. If the President’s actions are in alleged violation of fundamental rights, a petition can be filed before the Supreme Court. The Parliament has thus far not been effective in ensuring accountability of the Executive President and the provision of a judicial remedy was a much-needed response to this problem. It would be difficult make the case for the repeal of these provisions of the 19^th Amendment.

3. The wide range of reforms introduced by the 19^th Amendment

The 19^th Amendment was wide-ranging in its reform of the Constitution. The Constitutional Council under the 17^th Amendment increased accountability for the appointment to certain high offices and to statutory commissions by including 7 ‘persons of eminence and integrity who have distinguished themselves in public life and who are not members of any political party.’ Under the 19^th Amendment, in contrast, accountability of the Executive was increased by including more representatives from Parliament (7) and 3 individuals ‘persons of eminence and integrity who have distinguished themselves in public or professional life and who are not members of any political party.’ The quorum of the Council is 5, which effectively meant that decisions could be made without the 3 independent experts. This adaptation of the Constitutional Council’s membership took effect at the Committee Stage of the amendment process and has been criticised as falling short of the level of independence that ought to have been maintained. A significant feature of the Constitutional Council (under the 17^th and the 19^th Amendments) is that it includes representation from the Opposition in Parliament.

The number of statutory commissions that came under the Council was expanded in 2015 to include the Audit Service Commission and the National Procurement Commission. The Draft Constitution of 2000 proposed that the University Grants Commission (UGC) come under the Council. But neither the 17^th nor 19^th Amendments brought the UGC under the Council.

The 19^th Amendment reduced the powers of the Executive President. Correspondingly it strengthened the office of the Prime Minister by requiring the President to act in consultation with the Prime Minister in determining the ministerial portfolios and act on the advice of the Prime Minister in making appointments to the Cabinet. The Prime Minister could only be removed by Parliament, the President could no longer remove the Prime Minister. The term of the President was reduced and the President’s power to dissolve Parliament was restricted.

4. Promoting accountability for and transparency in the exercise of public power

Under the present constitutional scheme, the 19^th Amendment is the only amendment which promotes accountability for the exercise of public power. As highlighted above, it goes beyond the 17^th Amendment in increasing accountability beyond the original level of accountability envisaged by the Constitution of 1978.

The 19^th Amendment was a move away from the myths around ‘strong’ political leadership. Sri Lanka’s track record of ‘strong’ leaders speak for itself.  Moreover, since the 1960s political rhetoric in Sri Lanka has been peppered with notions of benefits of a ‘strong’ political leader and the example of Singapore as an instructive example. The differences between Sri Lanka and Singapore are such that a comparison between the two is hard to maintain. It is also important to ask ourselves whether the Singapore model is the one that we want to aspire to – one in which, for instance, the freedom of expression is limited, social welfare is not strong, ownership of housing is restricted, and education competitive and work is excessively demanding.

5. Improving independence and expertise in fourth branch institutions

The significance of fourth branch institutions (regulatory agencies), in a constitutional democracy cannot be overstated. Alongside civil society and knowledge institutions such as universities, they monitor the exercise of public power, propose policies etc. These institutions are expected to act independently not only from the influence of the government but also political parties and majoritarian politics.  High offices such as the Chief Justice, Attorney-General and Auditor General are mandated to strengthen accountability and bring in expertise. Similarly, statutory commissions such as the Elections Commission, the Human Rights Commission and the Police Commission are examples of fourth branch institutions. Ensuring that appointees to high office and statutory commissions are not beholden to a single office or to a single political party but rather to all political parties represented in Parliament and the Executive President is a much better way of ensuring independence of these bodies.

I think that it is important for us to note that the 17^th and 19^th Amendments were adopted in a political context where neither of the two main political parties were dominant and needed cross party support in order to remain in government. It is tragic that we have evidence of progressive constitutional reform only where political parties are weak and in need of cross-party support. It is shocking that several political representatives and political parties that proposed the 19^th Amendment and voted in favour of its adoption, today call for its repeal or remain silent or ambivalent. It is telling of our appalling political culture.

From increasing accountability for the exercise of Executive power to strengthening the capacity of fourth branch institutions, there is much in the 19^th Amendment that we as citizens ought to value. Despite the strengths of this Amendment, we the citizens are hard pressed to find political leaders, or a political party defending the 19^th Amendment. Would the 19^th Amendment suffer the same fate that met the 17^th Amendment? If the 19^th Amendment is to be repealed or amended, our interest as citizens would be to ensure that the weaknesses of the 19^th be Amendment be resolved and that its democratic aspects be preserved and strengthened. Anything less, would roll back the small steps that were taken to improve constitutional governance and its underlying values. We, the citizens, must expect more from politics.