President’s Counsel Dr. Jayampathy Wickramaratne expressed the importance of abolishing the executive presidency and electoral reforms under two different constitutional amendments. Dr. Wickramaratne, who is involved in constitutional reforms, expressed his candid views about the 19th Amendment, electoral reforms and the 100-day program. He is also a member of the National Movement for Social Justice and a dissident of the Lanka Sama Samaja Party (LSSP).
Following are excerpts:
Q: What are your remarks about the 19th Amendment?
The 19th Amendment that was gazetted has now been presented to Parliament. In the meantime the Cabinet of Ministers has approved the second set of changes to the 19th Amendment. They have shared it with leaders of other parties and it has also found its way to the newspapers. I am satisfied with the 19th Amendment read together with the changes proposed by the Cabinet.
Q: Do you feel the 19th Amendment has met your expectations?
Yes, to a certain extent. I am a member of the drafting committee. There are two senior retired drafts persons who are also members of the committee. We only do the initial draft and then send to the legal draftsman who makes changes. His draft will be the final one.
Q: Is it true the gazetted 19th Amendment was not the one that was drafted by the committee?
Ranil Wickremesinghe is also the Minister in charge of the subject of Constitutional Affairs. He has summoned a political committee on constitutional reforms. That committee has representation from all the parties in the Government. The preliminary drafts were prepared on the basis of decision arrived in that committee.
The preliminary draft is in accordance with the election manifesto and the 100 day program. It calls for the change in the form of government, but also provides for the president to have certain powers unlike the 1972 Constitution. Then it had further provisions which are applicable only
to the current president Maithripala Sirisena. That was discussed and accepted by the political committee and instructions were accordingly given to us and we did the draft on that basis.
Then it was discussed by the party leaders. At the party leaders meeting different views were expressed. There was no unanimity on the issue of who the head of government would be. That is very crucial; if the head of the government is the president, the executive presidency would continue. The draft did not provide the president to be the head of the government.
Instead it was provided that the president would act on the advice of the prime minister, which means essentially the advice of the cabinet of ministers like under the Soulbury Constitution. But it also provided that if the president disagrees with any advice given to him he could ask the cabinet of ministers to reconsider that advice. Of course the president is required to act on the advice given after reconsideration. This is novel for Sri Lanka.
All parties agreed the bill must be gazetted soon, because the government had decided the bill must not go as an urgent one. Considering the long period involved, everybody agreed that until full agreement was reached the bill must be gazetted. The gazetted bill provided for the president to be the head of the government and advice provision was deleted. Thereafter people who had expectations of total abolition were not satisfied. But it was also decided at the same meeting that the president would talk to the prime minister and they did talk to each other and then fresh proposals were placed before the cabinet.
The fresh proposals provided that the president would not be the head of the government and that he would act on advice. In the meantime the Attorney General has also made some observations which were also taken into account. The cabinet agreed to the changes proposed to the 19th Amendment.
Q: But in legal terms it is the gazetted amendment that will be accepted?
The Attorney General has advised the Government that the amendments made at the committee stage should be submitted to the Supreme Court when the matter comes up. We have already prepared that. Changes to the gazetted bill would be submitted to the Supreme Court at the hearing. The changes will also be given to the council to appear. It has already being given to the party leaders. It has also found its way to the media.
The Constitution provides for amendments made at the committee stage. Those amendments have to be certified by the Attorney General. But the Government is going a step further informing the Supreme Court of the proposed changes.
Q: Can you further explain how the bill would read when read together with the proposed changes?
The President will not be the head of the government. The phrase ‘head of the government’ is taken off. And it was so with the Soulbury Constitution as well as the 1972 Constitution. The direction and control of the government is with the cabinet of ministers. The prime minister will be the head of the cabinet of ministers. That was the phrase used in the Soulbury Constitution as well as the 1972 constitution.
We are bringing back the advice provision which means the President would act on the cabinet of ministers conveyed to him by the prime minister. Where the president does not agree, he has the power to ask the prime mister reconsider such advice. Then starts the consultation process which I think is good. This provision is in India as well.
We have proposed a further provision, which strengthens parliament. In a situation where the cabinet of ministers stick to its original decision or does not change, the matter is brought to the notice of parliament by the prime minister. And parliament’s views would be sought. If the parliament does not express any views, for example then the reconsidered view prevails.
If parliament’s decided original advice is to be changed, they will be free to decide on that. Then thereafter it is the view of parliament that prevails. Both the president and the cabinet of ministers would have to act in accordance with the views of parliament. This is novel to Sri Lanka. A similar provision is found in the Constitution of Finland. I feel this is good because it strengthens parliament. The parliament is elected by the people. Therefore in my view this strengthens the sovereignty of people.
Q: Who has the authority to appoint the cabinet of ministers and the prime minister?
The cabinet of ministers is appointed on advice of the prime minister. Even in the gazetted version of the 19th Amendment it is the Prime Minister that advice who the cabinet of ministers will be.
Q: How is the Prime Minister selected?
The Prime Minister is not elected. The President appoints as Prime Minister who in his opinion commands confidence of parliament. That is the usual form.
Q: Some argue the 19th Amendment gives more powers to the speaker and the deputy speaker. Do you agree?
Actually, now there is a change. Presently it is the prime minister who can act. But in the new structure that is proposed, it is prime minister who advices the president. The prime minister cannot act for the president because he would be advising for himself. Therefore there has to be a third person, the government thought the speaker should act for the president. There is a change as far as the deputy speaker is concerned. What we have now proposed is that if the speaker is unable to act for the president that the prime minister with the consultation with the leader of opposition would nominate a member of the parliament.
Q: During the election President Maithripala Sirisena vouched to abolish executive presidency and said he will not to exercise any power. Why has the 19th Amendment given certain powers only for himself?
President Sirisena never said he would not exercise any powers; he only promised to abolish executive presidency.
Q: But how can he promise to abolish executive presidency and retain certain powers under him?
He is not keeping anything under him. He can hold ministries. When he holds ministries he will have act on the collective decisions of the cabinet of ministers. The 19th Amendment spells out the certain powers. President Sirisena has expressed his wish to retain the Ministry of Defence, Ministry of Environment and Mahaweli under him. After all, this was all made possible because of him. That has to be acknowledged. We should not forget that he is the elected President. He is the one who gave leadership to this. He will only hold these ministries until his current term of office is over. After that, under the 19th Amendment there is no provision that says the president can hold ministries after the present president’s current term of office.
Q: Do you also believe a hung parliament will not be conducive for the country?
We are restricting the powers of the president to dissolve the parliament. Parliament will be restricted for five years. For the first four-and-a-half years parliament can be dissolved by a two-thirds of the majority request on dissolution. It is good. There is a similar provision in the British system as well. People are fed up with frequent elections. This provision also permits the incumbent prime minister to decide when it is most beneficial to his party. It is not fair. He can take the country by surprise. It is also good for the parties to work together. It is stability. I believe there is no stability when parties get together and form coalitions. If they cannot go on, they will decide on a general election. In Sri Lanka, except for 1952 and 1977 we have always had coalitions. The SLFP had never formed a government of its own. Therefore coalitions are nothing new.
Q: Don’t you agree such a situation will encourage crossovers for mere personal gains, similar to what happened during Mahinda Rajapaksa’s Government?
There is a restriction on the number of ministers; 30 cabinet ministers and 40 other ministers and deputy ministers. But that is for the next parliament only. We have to go in stages. It is possible to increase the numbers of ministers but with the approval of parliament provided only if the main two parties in parliament are part of the government. Therefore, you cannot buy parliamentarians or offer ministries to anybody.
Many parliamentarians who crossed over, mainly from UNP to the government, ran to the district court and got a stay order, whereas the Supreme Court had been given an exclusive jurisdiction to deal with the expulsion of MPs. What the parliamentarians did is to go to the lower court and get an enjoining order and thereby stalled the disciplinary process of the party. Therefore there is a provision in the 19th Amendment to take away the jurisdiction of other courts. Any matter involving the disciplinary control of a MP has to go to the Supreme Court. Some MPs have kept their enjoining orders going on for four years. This would also prevent people from crossing over.
Q: Why is the Right to Information Act incorporated in the 19th Amendment? Shouldn’t it be presented as a separate bill?
The Right to Information Act will be presented to parliament. The manifesto and the 100 day program only promised the Right to Information Bill. We are going further than that and elevating the right to information as a fundamental right.
Q: During his campaign President Sirisena pledged to remove immunity of the president but he has so far failed to do it. Your views?
Immunity will be restricted for his official acts. His official acts can be challenged under the fundamental right jurisdiction of the Supreme Court. It is best that this is given to the highest court, otherwise hundreds and hundreds of applications will be filed in the district court. President’s official acts can usually be challenged in two ways; by writs and fundamental rights. Article 12 will be enough to challenge any act of the executive. This is a tail-end of a parliament. The new parliament will deal with more comprehensive constitutional reforms. We do not have time to do that.
Q: What is the relationship between the 19th Amendment and the electoral reforms?
If we go through the 100 day program it is clear that the changes in the form of government and the 17th Amendment and the bringing back the 17th Amendment will be done through a separate constitutional amendment and electoral reforms will be brought in by a second constitutional amendment. Under the 100 day program, on 21 January, the constitutional amendment for the change in the form of government and bringing back the independent commissions should be presented to the Parliament. The fact that we are behind the schedule is a different issue. One week after that on 28 January, the committee was to be appointed to go into the electoral reforms. That committee would take almost a month and present its recommendations on 2 March. Based on those recommendations a second constitutional amendment would be presented to parliament on 17 March. It is very clear that there are two different amendments. It is well and good if you can agree on both. I am totally opposed to agreement on electoral reforms being a precondition to the 19th Amendment. I am for both the amendments to be presented to parliament and passed before the general election.
The Commissioner of Elections has come up with a new proposal; a modified form of mixed system that is found in Zealand. He has not given us any details. At a first glance most party leaders thought it is worth going into. This week we will send the proposals. We are due to meet on 6 April. If there is agreement on electoral reforms, that would be a bonus to the country.
Q: President Sirisena’s manifesto promised there will be a general election at the end of the 100 days. Your views?
It appears the 100 days is going to stretch a bit, but I have no problem even with 150 days. The National Movement for Social Justice said that this must be run in 180 days. However, I don’t like this dragging too much. New political factors have come into place. New political relationships are made, existing relationships break down. That can scuttle the whole system.
Q: What are your remarks about President Sirisena taking over the SLFP and offering ministerial positions to SLFP members that was not included in the 100 day program?
In the 100 day program, on 10 February, it clearly says, a government will be formed with the support of all other parties, not only the parties who helped President Sirisena. Therefore, actually if you go by the mandate, an all-party government has been promised.