Saturday, 11 April 2015 00:15
THE Supreme Court this week determined that several provisions in the 19th Amendment to the Constitution needed to be approved by the people at a referendum. The provisions in question mainly dealt with the transfer of executive powers to the Prime Minister.
The Amendment aims to move away from the current presidential system towards one that allows the Parliament to take control of the Executive – a move that has been long-awaited by a large section of the public and was one of the cornerstones of the current regime’s successful election campaign. The constitutional amendment also promises transparency in governance as well as the establishment of independent commissions in the hope of strengthening the democratic process.
However, paragraphs 42(3), 43(1), 43(3), 44(2), 44(3), 44(4) in Clause 11 as well as paragraph 104 B (5) (c) in clause 26, were challenged in the Supreme Court and were deemed to require a referendum. These paragraphs, which deal with the increased powers of the Prime Minister, state that the Prime Minister shall be the head of the Cabinet of Ministers, determine the number of Ministers and their functions, be allowed to change those functions while also stating that the Ministers will be answerable to the Cabinet and the Parliament. Paragraph 104 B (5) (c) in clause 26 meanwhile deals with appointing a competent authority to monitor private and state-owned broadcasting services for any election law violations.
Despite the setback in the Government’s push for approval, the UNP quickly welcomed the Supreme Court’s determination. Prime Minister Ranil Wickremesinghe stated that the articles which require a referendum would be removed during the Committee stage thus nullifying the need to get the public’s opinion. This would mean that the Bill will be amended to contain only articles that need a two-thirds majority in Parliament to pass.
The Supreme Court’s determination surely comes as a positive sign of independence within the Judiciary as constitution-drafting is a process that must be argued and scrutinised by experts and the public alike – a striking contrast to the series of events that led to the hurried passage of the controversial 18th Amendment under the previous regime. The Supreme Court on that occasion determined that the amendment which extended the presidency beyond two terms and further strengthened its powers did not need a referendum.
The JVP claimed that it was hypocritical to pass the 18A without question and stall with the 19th as MP Anura Kumara Dissanayake called on the House not to destroy a step towards democracy. MP Prof. G.L. Peiris pointed out however that Sri Lanka had in place a system to pre-challenge these Bills but not to challenge them after they were passed, advising the Government to ensure the implementation of a system that could not be challenged in the future.
Although the 19th Amendment to the Constitution is an important facet of the President’s mandate, no shortcuts can or should be taken towards its implementation. These proposed changes must be studied and challenged at all turns in order to ensure that the country does not find itself in hot water where the Constitution is amended according to the whims of select politicians. The Supreme Court’s determination has ensured that the systems in place are finally working independently; the Government’s reaction can be commended as it continues to seek approval for a Bill which will hopefully pull the country back from the precipice it dangled from a few months ago.