Photo courtesy of Magzter
At the ceremonial opening of our first Parliament on 4th February, 1948 Mr. S. W. R. D. Bandaranaike addressed the nation with these words: “It is true that no people can live on memories alone. It is equally true that history often provides a source of strength and inspiration to guide them in the future. It is only against the background of the past that the present and the future can be viewed in their correct perspective.”
The new political ideology of “thinking out of the box” in governance seems impatient with the idea that history and experience has any value. This may be the “new normal” in a country where history was not taught in our schools for decades. The 20th Amendment that has just been gazetted and will go before Parliament for adoption demonstrates that the newly elected government is embarking on the important task of constitutional reform without reflecting on our experiences of governance under the 1978 Constitution.
Most nations in South Asia have not had to carry the cross of frequent changes to the basic law of their country, the Constitution. It is true that our country has not in general experienced illegal power grabs. Yet electoral politics has also encouraged ad hoc amendments to the Constitution. In debating the implications of the most recent exercise in Constitutional reform, the 20th Amendment, we should reactivate our collective memories on governance over the years. In doing so, we should reflect on Mr. S. W. R. D. Bandaranaike’s statement of 1948 giving due consideration to the kind of governance we deserve and want for our country in the future.
The opposition and the media did not ask the Sri Lanka Podujana Peramuna (SLPP) to clarify its rationale for repealing the 19th Amendment and adopting a new Constitution or its vision. Within a month of taking office, the 20th Amendment is being brought to Parliament to give supreme powers to the President without the system of checks and balances on distribution of powers between the three agencies of government in a Parliamentary democracy – the Legislature, the Executive and the Judiciary (courts). It is true that strong leadership in governance is essential for national development. However Parliamentary democracies create institutions and systems to help great leaders govern without forgetting the responsibilities of office and accountability, not just to electoral majorities, but to all the people.
The 1978 Constitution has provided the framework of governance for our country for 42 years. A Constitutional amendment that gives supreme power to an elected popular leader without institutional checks and balances can determine governance in a country long after he has left office.
The 19th Amendment 2015
The 19th Amendment continues to be demonised by politicians in the government and others as a conspiracy of the previous regime to cunningly increase the powers of the then Prime Minister and undermine the President’s powers in governance. Yet the consensus within and outside Parliament in 2015 was that the dismantling of the Executive Presidency of the 1978 Constitution done in stages pending a new Constitution was a worthwhile objective and in the public interest. It was agreed at that time and up to mid 2019 that the Executive Presidency was the demon that had to be destroyed.
That agenda itself had a long history that we have all forgotten. President Chandrika Kumaratunga, when she took office, pledged to dismantle the “bahubootha” 1978 Constitution, which she said was responsible for decades of bishanaya and dooshanaya (violence and corruption). Professor G. L. Pieris and the late Dr. Neelan Tiruchelvam were tasked with giving leadership and drafting a new Constitution that would transfer executive power to an elected Prime Minister and Cabinet responsible to Parliament and the people. When taking Cabinet office in that government Professor Pieris said, “A Parliamentary executive model must be re-introduced. The People’s Alliance has received an overwhelming mandate…for the abolition of the Executive Presidency.”
The 2000 Constitution that Professor Pieris brought to Parliament had strong provisions on the appointment and removal of judges to prevent political interference. It had a stronger bill of fundamental rights and a carefully thought out system of power sharing between the central and provincial governments. This 2000 Constitution was rejected because there was no consensus on its adoption within Parliament.
President Mahinda Rajapaksa assumed office in 2005 on a mandate to dissolve the Executive Presidency. His Mahinda Chinthanaya policy for national development called for strengthening the Bill of Rights in a new Constitution. The National Action Plan on Human Rights was drafted and adopted. The President also appointed an Expert Committee to assist the All Party Conference (APRC) on Constitutional reform and asked them to work towards maximum devolution to resolve the “national question” with power sharing. Yet in 2010, after giving leadership in ending the armed conflict in 2009, President Rajapaksa seized the moment to bring an 18th Amendment to the Constitution that would enable him to become a President for life. He acquired full powers on appointment and removal of holders of high office and Public Commissions without the scrutiny of a Constitutional Council and procedures introduced by the 17th Amendment.
When President Sirisena was elected in 2015 he assumed office with a pledge to the nation to dismantle the Executive Presidency. He repeated this pledge on the passing of Rev. Maduluwave Sobitha who had led an election campaign to eliminate the Executive Presidency, reinstating the checks and balances on abuse of executive power through institutions such as Parliament and the courts and independent commissions. It was in this environment that the 19th Amendment was adopted by consensus and a two-thirds majority, without challenge within the Parliament or in the Supreme Court.
A comparison of these two amendments clearly demonstrates that the core principles of government in the 19thAmendment has been removed by the 20th Amendment in areas of great significance for the governance of the country.
The term of the office of the President and eligibility for office
The 19th Amendment repealed provisions in the 18th Amendment, and set a term of office of 5 years, and a two term limit on the period in which he could serve in this office. These provisions have been retained in the 20th Amendment. However, the President holding office under the 20th Amendment will have all the powers of the Executive President in the 1978 Constitution and some more powers.
When the 19th Amendment introduced limitations on the President’s terms of office, it also REDUCED Presidential powers to accommodate the concept of a transfer of powers from the President to an elected Prime Minister in Parliament. The changes in the Presidential term of office were combined with what Parliament agreed was a first step in LIMITING the executive powers of the President, to ensure accountable exercise of these powers. Limiting the term and period of office of the President in the 20th Amendment has no impact on the extensive powers given to him in the Amendment.
The 19th Amendment prohibited a dual citizen from being elected to office as a Member of Parliament, or as the President. These prohibitions have been repealed by the 20 Amendment and such persons can be Members of Parliament or President.
There is a perception that this prohibition will prevent dual citizens from holding ANY public office. This is incorrect. The prohibition in the 19th Amendment only applied to the public offices of President and Members of Parliament, recognising the potential for a serious conflict of interest should such a person be called upon to “carry arms” for another country, or support controversial policies of that country. An ordinary holder of public office may have choice and can resign. However resignation for conflict of interest has Constitutional implications, if a person is the President of the country, or a member of its legislative body, Parliament.
Presidential powers and accountability to other organs of government and the people in the exercise of these powers
Significant changes to the 1978 Constitution were made by the 19th Amendment in keeping with the overall objective of reducing the powers of the Executive Presidency, in the interests of accountable governance.
a) Duties of the President
The 19th Amendment defined powers and also introduced a principle of “duties” that had to be fulfilled by the President. Some of the significant duties were to:
i) ensure that the Constitution is respected and upheld
ii) promote national integration and reconciliation
iii) create a proper environment for the conduct of free and fair elections, on the advice of the Election Commission
The 20th Amendment retains provisions on Presidential powers and REPEALS the provisions in the amendment on Presidential duties under the Constitution, and to the people, and the other organs of government.
b) Accountability for Violation of the Fundamental Rights of the People by Presidential Acts and Omissions in Governance
The 19th Amendment removed the blanket immunity of the President that was incorporated in the 1978 Constitution. The 19th Amendment recognised that the President was immune from liability in criminal or civil proceedings for anything done or omitted to be done in his official or private capacity. However, it placed a limitation, by permitting actions for violation of fundamental rights in the Supreme Court. This was to ensure that the exercise of Presidential powers, in his official capacity, could not involve a violation of fundamental rights guaranteed to all by the Constitution, or by the provisions on the use of Official Languages in the Constitution.
The declaration of war and peace was excluded from this limitation.
The 20th Amendment repeals these limitations on Presidential immunity. It goes back to the principle of complete Presidential immunity from liability for his acts and omissions.
There is a provision in the 20th Amendment on the right to bring actions against the Attorney General in respect of the President’s acts as a Minister, his/her impeachment, elections and a referendum, but the scope of this liability is not clearly stated.
The President’s relationship to Parliament
a) Responsibility to Parliament in the exercise of Presidential Powers
The 19th Amendment gave prominence to the President’s responsibility to Parliament in the exercise of his powers and functions, as a core principle of governance, in the Chapter of the Constitution on the President’s powers and duties. This principle was originally stated in the 1978 Constitution in the Chapter on the President and the Cabinet – the branch of the executive also represented in Parliament. The 20th Amendment brings this principle back to the part of the Constitution that deals with the Cabinet, denying it the importance given in the 19th Amendment.
The change can be interpreted as limiting the President’s responsibility to Parliament. It is significant in a context where the 20th Amendment gives total presidential powers in regard to appointments to “High Posts,” defined by the Constitution, and the Public Commissions defined in the 20th Amendment. The Constitutional Council that was given oversight responsibility by the 19th Amendment had a significant majority of Parliamentarians on the Council. The Constitutional Council has been abolished by the 20th Amendment. The Parliamentary Council that replaces it has the Speaker, the Prime Minister and the Leader of the Opposition, and two Parliamentarians nominated by the latter, who are appointed by the President, and who can also be removed by the President at his discretion!
The Parliamentary Council under the 20th Amendment is under the control of the President. There is only a token role for Parliamentarians, including the Speaker the Prime Minister and the Leader of the Opposition. They have no contribution to make in their official capacity as members of the Parliamentary Council.
b) Dissolution of Parliament
Presidential powers on the dissolution of Parliament, and the provisions on presentation of urgent Bills, also erode the role and responsibility of Parliament, and the capacity for oversight and scrutiny of legislation.
The 20th Amendment empowers the President to dissolve Parliament one year after a General Election. This places the country in a situation where a costly General Election can be held in a very short time, and with no assurance that this decision will be made in the public rather than the rulers’ interests.
c) Other changes of concern relate to the Presidents capacity to refer legislation that has been rejected by Parliament for a referendum.
This provision in the 1978 Constitution was repealed by the 19th Amendment and has been brought back by the 20th Amendment. A new provision on legislation states that “any amendment to a proposed Bill in Parliament must not deviate from the merits and principles of such Bill.” This sweeping provision can restrict debate and modifications of legislation in Parliament, and will encourage greater passivity and disinterest in serious discussions.
The President, Prime Minister and Cabinet as the Executive in governance
The agreed objective of the 19th Amendment was to reduce the executive power of the President and transfer some of these powers to a Prime Minister and Cabinet from Parliament. Consequently, the provisions in the 1978 Constitution were changed significantly. The 20th Amendment has repealed all these provisions and gone back to the concept of supreme executive powers given to the President.
The President has complete discretion in determining the number of Ministries and the topics allocated to Ministries and State Ministries. “Jumbo Cabinets” can hold office without regard to national resources, at the discretion of the President. More importantly, the office of Prime Minister, Cabinet Minister and State Minister, will be held at the “will and pleasure” of the President, with the full power of appointment, removal, and selection of Ministries left entirely to the discretion of the President. He can also assign any subject to himself, and take away Ministries allocated to any Minister, without even consulting the Prime Minister, exercising these powers in any manner that pleases him.
There are no checks and balances at all on the exercise of Presidential powers in relation to the Prime Minister and Cabinet, under the 20th Amendment. Can this not encourage complete servility to the President within Cabinet?
The changes ignore the fact that the Prime Minister and Members of Parliament have been elected by voters to Parliament and have separate responsibilities to them. Having permitted voters to choose Members of Parliament, the 20th Amendment disempowers those Members completely, and makes them accountable to a single individual – the President. The Prime Minister has been reduced to an “office orderly,” as one holder of the office described himself, when he held the position under the 1978 Constitution. Yet ironically the provision that the “Cabinet has the direction and control of government and that they are answerable and responsible to Parliament” has been retained in the 20th Amendment.
The judiciary is an important organ of government in a system of Parliamentary democracy, often expressed in the concept that institutions engaged in the administration of justice must be “independent” or free of political interference. Certain measures are incorporated in Constitutions, in a Parliamentary democracy, to ensure that there is no political interference in the matter of appointment and dismissals of judges.
The long history of political interference and the experience with the impeachment of Chief Justices after 1978 led to pressures for a system of appointment that would prevent such interference. The 19th Amendment failed to incorporate changes in regard to dismissal of judges of the Supreme Court and the Court of Appeal. However it went back to the norms of the 17th Amendment and created a Constitutional Council that was responsible for oversight on appointments to the Appeal Courts, and also in regard to the two judges (apart from the ex officio Chairman, the Chief Justice), who serve on the Judicial Services Commission. This is the body entrusted with the appointment dismissal and disciplinary control of other judicial officers.
The 20th Amendment has repealed the provisions on the Constitutional Council. The President is required to obtain the “observations” of the Parliamentary Council that has replaced the Constitutional Council but he is not required to consider their views in making appointments to the Supreme Court and Court of Appeal. Appointments are at his complete discretion. He can also (as in the 1978 Constitution) dismiss the two judges who serve on the Judicial Services Commission at his discretion. Both the 19th and 20th Amendment have retained the procedures of impeachment in the 1978 Constitution for dismissals of judges of the highest Appeal Courts.
The Attorney General is the chief prosecutor and plays an important role in the administration of justice. The 20th Amendment provides for this appointment to be made at the complete discretion of the President. The oversight of the Constitutional Council that functioned under the 19th Amendment has been removed. The views obtained by the Parliamentary Council that replaced this body are only “observations” and can be ignored by the President. This Council has no oversight responsibility .
However the Attorney General’s removal from office will be, as under the 1978 Constitution and the 19th Amendment, according to a specific law that covers this matter – the Removal of Officers Act 2002. This Act provides for a Parliamentary system of investigation and decision making for removal of the Attorney General.
High Posts and Public Office
The 20th Amendment has repealed the provisions on appointments to designated high posts with the oversight of the Constitutional Council. Appointments to the posts of Commanders of the Armed Forces have been a Presidential prerogative under the 1978 Constitution and the 19th Amendment, and this position has been retained in the 20th Amendment. However the post of Inspector General of Police has been omitted from the high posts coming within the purview of the new Parliamentary Council that has replaced the Constitutional Council. It is not clear how the Inspector General of Police will be appointed, though the Removal of Office Act 2002 determines the procedure for removal and, as in the case of the Attorney General, involves a Parliamentary procedure.
The Auditor General’s post is retained as a high post in the Constitution by the 20th Amendment. But he is appointed by the President, and can be removed by him at his discretion, holding office during “good behaviour.” The oversight of the Constitutional Council on his appointment and removal, mandated by the 19th Amendment, has now been removed. This in a context where both the Audit Services Commission and the Procurements Commission established by the 19th Amendment have been abolished by the 20th Amendment. The serious negative implications of these changes for auditing key public institutions have been placed in the public domain by professional associations of auditors.
“Independent ” Public Commissions and the 20th Amendment
When the 19th Amendment was passed by consensus, it was agreed within and outside Parliament that important public Commissions recognised in the Constitution should be independent of Presidential control. This principle, clearly recognised in the 17th Amendment had been repealed by the 18th Amendment, but was incorporated once again in the 19th Amendment.
Consequently the system of appointment and removal was by the President but subject to the oversight of the Constitutional Council. The 19th Amendment also had detailed provisions aimed at strengthening the work of the Commissions. It established an Auditing Services and Procurement Commission to facilitate oversight, in use of public funds, and financial and management accountability, of important public institutions and offices.
It is now stated by those who demonise the 19th Amendment that the Commissions were packed with “NGO Karayas”, because the Constitutional Council was dominated by the same people. This point of view has also been expressed by Professor G. L. Pieris in public fora and the media and by the Minister of Justice. They should know that this assessment is based on fiction rather than facts.
The Constitutional Council had a very strong majority of Parliamentarians and was chaired by the Speaker. There were only three persons representing “civil society.” At no time were all of them from NGOs. Several had an established national and international reputation, as required by the 19th Amendment, and none of these appointments were objected to in Parliament. The previous Human Rights Commission of Sri Lanka was delisted from regional and international bodies of National Human Rights Commissions, for non-conformity with the Paris Principles that set standards on the method of appointment. Professor G. L. Pieris and the Minister of Justice must be aware that the Human Rights Commission appointed under the 19th Amendment has received national, regional and international recognition for its work.
The 20th Amendment has abolished the Auditing Services Commission and the Procurement Commission. It has also repealed the detailed provisions in the 19th Amendment relating to other Commissions. There are new provisions relating to the Public Service Commission and the National Police Commission. The provisions on the Elections Commission limit their powers to monitor and set guidelines for the conduct of elections. A new provision provides for public complaints against the Police and for redress “according to law”. It is not clear how this procedure will be implemented.
The 19th Amendment provided for Presidential appointments and removal of members of the Commissions, but subject to oversight by the Constitutional Council. This procedure has been abolished. The President has full powers in regard to appointments and removal of members of the Commissions referred to in the 20th Amendment.
The transitional provisions on the continuity of Commissions and High Post appointments under the 19th Amendment, give the power of removal to the President. This would include removal of members of the current Human Rights Commission referred to above, at the discretion of the President. The drafters of the 20th Amendment have disregarded the standards set by the Paris Principles on National Human Rights Commissions, once again.
A Post 20th Amendment future on governance
The 19th Amendment was to be a temporary initiative for reducing the powers of the Executive Presidency and re-establishing governance with an elected Prime Minister, Cabinet and Parliament, pending the adoption of a new Constitution. The 19th Amendment therefore changed what can be described as “the grund norm” or the foundational principles of the 1978 Constitution. This significant modification to the system of governance was not challenged from within or outside Parliament, or by litigation in the Supreme Court, because there was consensus that the change was good for the governance of the country.
The 20th Amendment is a dramatic turn around and has changed the “grund norm” again. The 20th Amendment that was in the public domain in 2019 as a strategy to eliminate the Presidential system of governance, has now emerged as a Constitutional change that will create an even stronger executive Presidency. This time there is no consensus within or outside Parliament. We do not know whether in this context, a 2/3 majority in Parliament and a referendum will be required for the 20th Amendment to become the Constitutional bench mark for the governance of the country in the years to come.
We speak of the possibility of drafting a new Constitution to replace the 1978 Constitution, and it is said that the 20th Amendment is an interim measure. But what has been our experience on Constitution making? When the Constitution of South Africa was adopted after a fully participatory drafting process, Nelson Mandela said that “A Constitution is a law that embodies a nation’s aspirations.” Our nation’s aspirations for a new Constitution have never been realised because of adversarial politics, and a failure by politicians to recognise that a Constitution is for the people and not for them.
The 19th Amendment could have contributed to good and accountable governance, pending a new Constitution to achieve the agreed objective of dismantling the Presidential system of governance. The two centres “of power” in the executive, created as an interim measure, could have functioned effectively in the nation’s interest, if the President and the Prime Minister had not torn each other apart by their narrow and partisan political agenda. Excellent position papers on key areas of governance were prepared in 2015-2017, in a consultative manner, and another report was prepared on the basis of public consultations. The Parliamentary drafting process collapsed because our political leadership became enmeshed in adversarial politics.
Political interests have once again dominated the drafting of the 20th Amendment. The lack of consensus even within the government is manifested in the fact that no one is taking ownership for drafting the document. The drafting of the 20th Amendment reminds us of the words of a great justice who suggested that it is in the public interest that “laws are not conceived in secrecy and brought forth in obscurity”.
Why is there such lack of transparency in regard to the drafting of the 20th Amendment? The public was informed that a Cabinet Sub Committee chaired by Professor Pieris, and consisting of the Minister of Justice and others were authorised by the President to draft the 20th Amendment. We are now informed through media that the Justice Minister does not know who prepared the 20th Amendment Bill that has been gazetted to go before Parliament. Another Committee appointed by the Prime Minister also chaired by Professor Pieris with the participation of the Minister of Justice and others, will now “report” on the 20th Amendment. This hardly inspires public confidence in Professor Pieris’ public statement that Constitutions are not authored by anyone but represents the thinking of the whole government.
The adversarial approach by politicians to Constitution drafting is because of the failure to appreciate that democratic governance which is accountable to the people demands accommodation of both majority and minority points of view in the country, on governance. Giving priority to “sweeping election mandates” and confusing that kind of populism with democracy, denies the responsibility to respect the views of all citizens, on their aspirations for peace and progress. Election majorities are at best temporary phenomenon. The long term interests of the people in accountable governance go beyond electoral politics.
We are at a point in history where a large majority of citizens are tired of democracy and want governance to be the sole responsibility of a single popular leader, who commands confidence. They sincerely believe that handing over the country on a “bulath hurulla” to a strong and popular leader will lead Sri Lanka into a glorious future of “kiri and pani”. They are not aware of or have forgotten the lessons of history, and the manner in which a government elected by the people through the franchise, (the “heart and soul of democracy” as eloquently described by Professor Pieris) transforms itself into a totalitarian dictatorship.
This is a point of view that is understandable, even if one may disagree with it. What is more difficult to understand is how professionals and academics who should lead the nation towards good governance can describe authoritarian dictatorial exercise of executive power by a single individual, without any checks and balances by other institutions as the quintessential form of “democratic ” governance.
This country has experienced and witnessed abuse of political power, in the last few decades. They have seen how governance and the administration of justice has been impacted by abuse of power. Need they be reminded that we have an international record of installing three different Chief Justices in three days – one was “disappeared” from office because of politics, another impeached because of politics, and brought back to office by the successor government for one day, and a third appointed to hold the vacant post. The people have witnessed serious violence and intimidation at elections because of confrontational politics, prosecution or non-prosecution of offenders in emblematic cases because of political imperatives, and a person in remand for murder nominated as a candidate for Parliament. Can they be convinced again by Constitutional lawyers speaking eloquently on electronic media, that we have a perfect system of governance and administration of justice, which will be strengthened by going back to a more powerful executive Presidency?
At this critical time it is wise to reflect on what His Lordship H. N. J. Perera, the last Chief Justice of this country, said in the unanimous decision of all the judges of Supreme Court (a full bench) in the Dissolution of Parliament case 2018. Citing earlier precedents and the changes in governance in the 19th Amendment, His Lordship said that “Since 1972 (when we broke the link to a British sovereign) this country has known no monarch, and the President has not inherited that mantle”. The 20th Amendment is seeking to clothe the President with that mantle. The President and the people must reflect on our national experience on governance, and ask whether a “monarchy” created by a 20th Amendment to our Constitution, is in the long term interest of the people and the President.
Perhaps President Mahinda Rajapaksa and Professor Pieris can reflect on the wise words of their former leader in 1948 and bring back into governance the values of the 2000 draft Constitution’s system of governance based on parliamentary democracy. They should, with their long experience in governance, give leadership, and save this nation from the crisis and risks inherent in a “single powerful leader” form of governance.