Positive aspects of the illusive 19th Amendment to the Constitution
Friday, 13 March 2015 01:01
If Parliament could agree and pass the 19th Amendment with meaningful provisions, we can expect a more accountable system of governance in Sri LankaBy Kamal Suneth Perera
We are now at a crucial juncture as far as our constitutional law is concerned as the ruling coaling is busy these days to bring an amendment to the Constitution, promised during the last January presidential election.
Thought the election promise large focused on the abolition of the executive presidency, the number of politicians in the current ruling coalition promised fare more positive amendments to the Constitution, towards the accountability and good governance. In the title of this article I called it ‘Illusive 19th Amendment,’ because as of today when I write this article, a Bill has not been tabled in the Parliament, but only at rumours as to the features of the 19th Amendment. The 19th Amendment intends to reverse not only the provisions introduced by the 18th Amendment, but also the provisions that are there in the Constitution since its inception in 1978.
The powers of President
Chapter VII in the Constitution contains provisions with regard to the “President”. The 19th Amendment expects to curtail the power of the president drastically. But the President still will be the Head of State, Head of Executive and Commander in Chief of the armed forces. But the 19th Amendment would expect the president to play a more apolitical role.
The President would still have power to appoint the Prime Minister, but it will only be the Prime Minister who could appoint Ministers and NOT the President. The term of presidency will reduce from six years to five years. In fact, in most of the democratic countries, the Head of State holds office for a term of five years.
One of the key attributes of the 19th Amendment is that it will curtail the blanket immunity given to the President by Article 35. If this is happened, the true meaning of the Article 12 (“All persons are equal before the law”) would be achieved. Because as far as the present constitutional provisions are concerned, all the persons are equal before the law, but the President is not so.
It is also a must to remove or restricts the “Presidential pardon” provided in the Article 34 of the current Constitution. Because it was apparent from our past experience that this power had been use by the President on no rational basis, but to release his/her political associates from prison. In a famous murder case, the wife of a Minister convicted along with three other for murdering the alleged mistress of the Minister. The President granted pardon to the wife of the Minister while other three accused continued to serve life in prison.
The other point with regard to the President is the provisions and procedure relating to the impeachment of the President provided in Article 38 (2). The existing procedure is as such that practically it will be impossible to the Parliament to complete the impeachment process against the President as the President can dissolve Parliament to get away with the impeachment. We witnessed this during late Premadasa’s period.
The move to repeal the impeachment procedure and replace with no-confidence motion procedure to remove the president is therefore a timely need. At the same time the new amendment would limit circumstance under which President can dissolve the Parliament.
One of the highly criticised aspects of the 18th Amendment was the repeal of Article 30 (2) and 92 (c) which prevented a president from running for office more than twice. As far as the democracy and good governance are concerned, the move made by the 18th Amendment by allowing a president to run for the office forever is just creating a dictatorship. Therefore, it is highly expected that the 19th Amendment would bring back Article 30 (2) that was there in the original Constitution.
Article 32 (3) introduced by the 18th Amendment, that the president to attend Parliament once in every three months, is just a white elephant. Nothing will happen if the president fails to attend. Even when he attended (we observe this on three of four occasions), no meaningful thing happened. Therefore, if the 19th Amendment expects the President to attend Parliament, the provisions should be made to have a mandatory session of oral answers by the President. For this, we can learn how the “Prime Minister’s Oral Questions” conducts at the House of Commons in the UK.
The powers of Prime Minister
We hope the 19th Amendment to bring practical steps to make the Prime Minister the Head of Government and transfer some of the constitutional powers the President had to the post of Prime Minister. Therefore, we should expect considerable changes to Chapter VIII of the Constitution.
A dire need for the Constitution would be to restrict the number of Cabinet, State, Non-Cabinet and Deputy Ministers. The current Constitution has no restriction on this so, virtually there could be even 225 Minister and Deputy Ministers. For this reason, Sri Lanka shamefully became the country that has most number of ministers. However, we have correctly tackled this issued with regard to the provincial councils in the 13th Amendment to the Constitution by restricting the maximum number of Ministers to four per province.
At the moment there is no certainty as to what maximum number of ministers would provide in the 19th Amendment. The current President promised to have not more than 30 Ministers, but with his Deputy Ministers and State Ministers, the total exceeds well over 50. This again, I think not acceptable. If you compare our county with other major democratic nations with their population, you would agree that we should limit the Cabinet to maximum 15 or 20 while all other Deputies, State Ministers and Non-Cabinet Ministers’ total should not exceed 20.
Cabinet means to be a group of people who sit on one table to discuss the issues. Therefore 15 is very reasonable given the fact that we have only 20 million of populations. While the current Cabinet presides by the President, after the 19th Amendment it should usually preside by the Prime Minister. However, the Power should vest with the President to call Cabinet meetings on special circumstances.
The 19th Amendment should bring Parliament supremacy. As at today, especially with the introduction of the 18th Amendment, the Parliament became just a nominal place of governance and often has to adjourn due to lack of quorum. The lack of accountability by our 225 elected MPs can be understood as we often hear when Parliament adjourn for not having at least 20 MPs attending the Parliament.
A much-awaited change would hopefully introduce to the electoral system, especially with regard to Parliament elections. The 19th Amendment should try to introduce the first past the post system (FPP), if not at least a mixed system of FPP and proportional representation.
The other major aspect is with regard to the qualification to be a MP. A country like Thailand requires MPs to be a university degree holder. We, while claiming 98% literary rate requires no education qualifications to be a MP and have over 90 MPs in the current Parliament who even not passed GCE O/L. Therefore, the 19th Amendment should require to have provisions for the candidates for the MPs to have at least GCE O/L qualification. Disqualification over dual citizenship is another positive move for the national interest. Therefore we should expect amendments to article 89, 90 and 91 of the current Constitution.
The other major issue that the 19th Amendment intends to tackle is the crossing over of MPs. Though there are no clear enabling provisions in the Constitution for the MPs crossing over, the Supreme Court judgment in 1990s made possible MPs to cross-over parties yet protect his/her seat. And during the last couple of years we experience this more than any other country in the world and crossing-over became an investment decision for MPs, leaving a side all his obligations towards voters and party. Therefore, the 19th Amendment would hopefully bring provisions to disqualify MPS, if crossed-over after elected.
Another positive step of the 19th Amendment is to get away with the provisions with regard to the Urgent Bills. We know by past experience, the parties who were in power often abuse this provision just to get away with the public in unpopular moves. The 18th Amendment to the Constitution was also introduced as an “urgent Bill” by the then government, though there was no reasonable urgency existed.
Unlike what late J.R. Jayewardene did with the 1978 Constitution, the 19th Amendment will not discontinue the present Judiciary and Appellate Court Judges. Yet, we expect that it would introduce provisions to the appointments and removal of Superior Court Judges somewhat similar to South Africa. It will effectively get away with the existing impeachment procedure of the Superior Court Judges, which we experienced as highly unjust and political process in the 43rd CJ’s impeachment.
The new provisions either could incorporate the 19th Amendment or else refer to a separate Act, similar to what was tabled as a private member Bill by Wijeyadasa Rajapaksha PC, MP who is the current Minister of Justice.
The 17th Amendment created a number of independent commissions and made provisions to improve the independence of the existing commissions. At the same time it introduced a Constitutional Council with the main purpose of limit the President’s arbitrary powers to appoint people to different commissions and key public posts.
The 18th Amendment replaced the Constitution Council with the Parliamentary Council. However, we could not observe any active role played by the then Constitutional Council or the current Parliamentary Council. The best example is that we have still failed to appoint the Election Commission, created by the 17th Amendment. Therefore the 19th Amendment should strengthen the powers of the Constitutional Council/Parliamentary Council whatever name given. Moreover, the 19th Amendment is expected to introduce new commissions to improve good governance and accountability. So, there could be Audit Service Commission and National Procurement Commission.
As people expect the winners of the last presidential election to keep their promise, the ruling coalition should deliver the type of Constitution they promised, going beyond the abolition of the executive presidency. All the political parties and MPs should leave aside their party politics and support the provisions of the 19th Amendment if they are for the best interest for the country and the people.
If Parliament could agree and pass the 19th Amendment with meaningful aforesaid provisions, we can expect a more accountable system of governance in Sri Lanka.
[The writer, B.Sc (HRM) Sp., is an Attorney-at-Law.]