Executive Presidency - foundation for strong growth, development- Prof. G. L. Peiris

By Manjula FERNANDO

External Affairs Minister Prof. G.L. Peiris, an authority on constitutional affairs was interviewed by the Sunday Observer on the proposed 18th Amendment Bill that is to be presented and debated in Parliament on September 8.

Here are the excerpts:

Q: The Government promised to scrap the Executive Presidency. But now the Amendment calls for the removal of presidential term limits, repealing Article 31 (2). Why the turnaround?

A: It is not correct that the Government promised to abolish the Executive Presidency. There was a reference to that in the manifesto of 2005. That was a presidential election that was won very narrowly. By contrast, the Mahinda Chinthana document which was released before the presidential election of November 2009 did not speak of any abolition of the Executive Presidency.

That was not embodied in the Mahinda Chinthana at all. So the manifesto of 2009 proceeded on the basis of a plan for development of the country which did not include the abolition of the Executive Presidency. Quite unlike the majority that was obtained in 2005, the majority in 2009 was massive. President Mahinda Rajapaksa had a majority of 1.8 million votes.

It is often reported that the government undertook to abolish the presidency and is now going back on its words. This is not correct at all.

In fact, the program of action which the people endorsed by an overwhelming majority in 2009 was a program which was founded upon a strong executive. It is that program that was so enthusiastically endorsed by the people.

Q: Why do you think the Executive Presidency should continue?

A: I think there are compelling reasons to continue with the Executive Presidency at this time. The vast majority of people in our country would accept the reality that the war against terrorism could not possibly have been won without the Executive Presidency. Given the composition of Parliament, what imparted strength to the Government was the overarching mechanism of the Executive Presidency.

Now, of course, the hostilities are over and terrorism has been eradicated, but the challenges which we face today are no less daunting than the challenge of defeating terrorism. Today, the country has an opportunity which it did not have for the last 20 years. The unique opportunity that is available today is to put the country on the track of accelerated economic development. To do that, you need a strong executive. It is that which is attracting investment to the country in particular.

Today, the country has two major advantages; one is durable peace, and the other is political stability of a degree which we had never had for the last decade and a half. I was told just yesterday that the number of apartments sold in the country reached record heights after the results of the election. People have confidence. Some of the world’s leading companies are coming here to invest; Shangri La is one instance, Ananda Mahendra of India is another.

To derive maximum benefits we need a very strong executive. That is what we are seeking to give the country.

And there is this misconception, that what the Amendment is attempting to do is to extend the term of office of the President. That is not the case at all. All that the Amendment does is to remove the legal fetter imposed by Article 31, Sub Article 2 of the Constitution - that no person can be elected President of the country more than twice. We are doing away with this restriction and giving the people of the country the unfettered right to elect a person of their choice.

That is clearly seen by us, not as a restriction, but as an enlargement of the franchise. Why should the people be prevented from electing whoever they want? If a person serves two terms and offers himself for election on the third occasion, the final arbiter should be the people.

It is the judgement of the people that should prevail. This is therefore a democratic exercise. So the result of the Amendment will be to give the people the right to exercise their franchise without the restriction contained in Article 31 (2) of the Constitution.

Major aspects

Q: What are the key changes proposed in the 18th Amendment?

A: The 18th Amendment has two major aspects; one is what we just discussed, the removal of the limit on the number of terms that a person can occupy the office of the Presidency. A strong executive is a necessary condition for the rapid economic and social development.

One of the anomalies of the present Constitution is the distance between the Executive President and Parliament. I would see that as a weakness. The proposed Amendment brings the President into Parliament. Under the present Constitution, the President can attend sittings of the Parliament, he can speak, he can answer questions, but not vote. Under the proposed Amendments too, he cannot vote, but the difference is he is compelled to attend Parliament at least once in three months. Today, it is a discretionary matter. There is no requirement that he should do so.

Once this Amendment is enacted into law, there is a compulsory obligation on the part of the President to attend Parliament. That is going to make a world of difference. He will be interacting with the Members of the Opposition, Members of Parliament in the lobby or the library.The fact that the Head of Government is in Parliament, constantly in communication with MPs and observing them at close quarters, is a circumstance that would undoubtedly strengthen Parliament and elevate its stature, as a crucial organ of Government.

Q: With regard to the proposed amendments, have we taken a precedent from any particular country?

A: No we are not proposing to model the Amendments on any particular Constitution, because we believe that at the end of the day, for the Constitution to be effective, it must be home-grown and home-spun.

We can draw on elements from other constitutions and provisions which had worked well elsewhere, but at the end of the day, one has to modify these provisions to suit the situation in ones own country.

A constitution will work satisfactorily only if it responds to the aspirations of the people. It has to take into account the cultural values, the historic background and the traditions and values of the people. It is by taking fully into account the nuances of the local situation that we would be able to come with amendments which will be timely and beneficial.

Q:We were talking about the proposed changes in the 18th Amendment....

A: Yes. One set of changes is with regard to the Executive Presidency and the other major area is the 17th Amendment. The crux of the matter is that the 17th Amendment has not worked on the ground level. This is because it is unworkable. This was clearly foreseen by the Supreme Court when the 17th Amendment was sent to the Supreme Court to be tested for consistency with the Constitution. This was debated in Parliament in just one day and passed at the end of the day. In the afternoon, it looked as if the Amendment could not be passed at all because it was impossible to obtain a two-third majority. At the time, the Speaker adjourned Parliament and the party leaders made a desperate attempt to arrive at an agreement which would enable them to obtain a two-third majority.

A series of compromises and concessions were made which were based entirely on experience, not on any principle or policy. The result was that the 17th Amendment contained contradictions of a sort which could not be resolved. It was incurably flawed. The proof of it is the fact that the Parliamentary Committee which was set up under the chairmanship of Minister D.E.W. Gunasekera, in spite of all his efforts, was not able to arrive at a solution to these problems. To date, the political parties that participated in the deliberations of that Committee could not agree to a final set of recommendations acceptable to all.

The Supreme Court foresaw these problems. There are many fundamental deficiencies and anomalies in the 17th Amendment. Many of these relate to the Constitutional Council (CC). The CC was conceived as an apolitical institution. The professed objective was to depoliticise crucial appointments. But you cannot think of a body that is more politicised than the CC. It consisted of persons who were nominated by political parties. The idea that the CC is an apolitical mechanism which had the capability to elevate appointments to crucial commissions above the level of party strife, is a myth.

The other major flaw was that the whole structure contemplated in the 17th Amendment stultified effective governance in respect of a crucial area - defence. At the best of times, authority and responsibility must go together. Whoever has constitutional responsibility for the discharge of a particular function must have the legal authority to carry out that responsibility. Article 4 B of the Constitution clearly declares that the executive power of the people including the defence of the country is vested in the President of the Republic, elected by the people.

Defence is an integral part of the executive power. To discharge that responsibility, the President must have the authority to issue directions and orders to the Army, Navy, Air Force and the Police. As far as the Commanders of the Army, Navy and Air Force are concerned, there is no issue. With regard to the IGP, under the present constitution, the situation is different. The National Police Commission has a critical function in this regard. The President is burdened with a responsibility, but he is not provided with the authority to carry out that responsibility. That is an unacceptable situation.

We have therefore taken a fresh look at the situation and have asked ourselves from a policy standpoint what the best course of action to adopt. And come up with a Parliamentary Council to associate itself with the President to identify persons to be appointed to these crucial positions. Under the present law, there are seven commissions; Finance, Elections, Delimitation, Human Rights, Public Service, Police and the Commission against Bribery and Corruption. All seven commissions are being retained.

The major change is with regard to the mode of appointment. Even today the appointing authority is the President. It cannot be otherwise. When the 17th Amendment was sent to the Supreme Court (SC) to be tested for constitutionality, the SC declared that any amendment which erodes the executive powers conferred on the president by Article 4 would not be valid. Therefore, the President will continue to retain that power. No body else can take that power because it is contrary to the basic structure of Sri Lanka’s Constitution.

Process of Consultation

But there must be a process of consultation. It will not be an outside body, but a parliamentary body. The Parliamentary Council which replaces the CC consists of five persons; the Speaker, the Prime Minister, the Opposition Leader and two members of Parliament nominated by the PM and the Leader of the Opposition.

There is a special provision relating to the two nominees by the PM and the Opposition Leader that they must belong to communities that are not represented by the other three. For instance, if the first three are members of the Sinhala community, the two nominees should be from the Tamil and Muslim communities.

There are certain other officials who fall within this special category of persons appointed after the process of consultation. The relevant provisions are contained in the Article 41 B and 41 C of the Constitution. Schedule One refers to the Chief Justice and the Judges of the Supreme Court, President and Judges of the Court of Appeal, and the members of the Judicial Services Commission other than the Chairman. Schedule Two refers to five officials; the Auditor General, the Attorney General, the Ombudsman (Parliamentary Commissioner for Administration), Secretary General of Parliament and the IGP.

All these officials will remain in that category except the IGP. Except for the IGP, the others will be appointed by the President after the consultation process.

Q:With regard to the IGP, will there be no such consultation?

A: The IGP is the head of department; there is no need to do that with the IGP. Under the new Amendment, the IGP will be responsible for routine administrative matters within the Department. That is how it should be. The National Police Commission (NPC), however eminent its members may be, would not have knowledge of day-to-day police administration.

In fact, one of the glaring anomalies of the 17th Amendment was that the IGP was not even an ex-officio member of the NPC. The NPC attended to police appointments and transfers without even consulting the IGP. Now those functions will be discharged by the IGP.

However, this does not mean the decisions can be arbitrary or capricious. There must be a remedy to people who claim to have a grievance. That is fully provided for in the 18th Amendment. A member of the Police who feels aggrieved by the decision of the IGP will have access to the (PSC). If a decision has been made which is unjust or contrary to the rules of natural justice, if there is bias or malice, one has recourse to the PSC. An appeal can also be made to the Administrative Appeals Tribunal. If the public wants to make a complaint against the police, that function is vested in terms of the Amendments in the National Police Commission. The NPC is able to entertain complaints from the public against the behaviour of police officers.

We have restored a principle which is consistently being applied by all the Constitutions under which the country has been governed since independence.

These are all changes that will streamline administration and will in the final analysis uphold the principle of accountability.

President’s term

Q: This is not an urgent Bill. The next term of the President is due in six years. But it seems the Government is in a hurry to bring in the 18th Amendment?

A: It has nothing to do with the President’s term. The urgency arises from a different cause, it is important to appoint the Commissions without delay. It is of national interest. The Commissions cannot be appointed in the manner contemplated in the 17th Amendment. The Commissions serve a statutory purpose, but the method of appointment referred to in the 17th Amendment is flawed. And for a very long period, the 17th Amendment has been a dead letter. We don’t want to perpetuate that situation. We want to change it as soon as possible and bring the Commissions into being. The Government wants to appoint these Commissions no sooner than these Amendments are passed.

The Supreme Court must give its mind to the constitutionality of the proposed amendments within three days. Then the Parliament is in a position to debate the Bill and enact it into law.

Q: Is it to be presented in Parliament on September 8?

A: Yes. It will be presented in Parliament and debated on the 8th. At a party leaders meeting held in Parliament earlier this afternoon (September 2), it was agreed to debate the Bill to a finish on Wednesday. The normal sitting hours will be adjusted to enable extra debating to take place. On Wednesday the sittings will start at 9.30 am and will continue till 7.00 pm. There will be no adjournment motion.

Q: How long will it take to appoint the Commissions after passing the Bill in Parliament?

A: Once it is certified by the Speaker and becomes law, then there is no impediment. The President would then be free to select persons for appointment. In fact, he is already considering suitable persons.

Q:There have been many amendments to the Constitution. Does it mean that our Constitution is weak?

A: No, you need to take a balanced approach to that question. Constitutions are not intended for all time. They are not cast in stone. As social circumstances and priorities change, there must be corresponding changes made to the Constitution. The 17th Amendment was enacted almost a decade ago.

But there must be certainty that those changes are desired by an overwhelming majority of the Members of Parliament. That is why a two- third majority is stipulated. In this case, the two-third majority, we are certain, will be available. There will be a very strong consensus in support of this constitutional change.

I think the experiences of other countries in the region have also underlined the need for an amendment on these lines, particularly with the experience of the Maldives and Nepal. If you have checks and balances which may have been introduced with the best of intentions, but if they go too far, then you have a gridlock situation. Breakdown of effective government is the last thing we want in Sri lanka, when we have a unique window of opportunity.

100 percent support

Q:Is it a cause for concern that the UNP and the JVP have opted to vote against this Bill?

A: Obviously, we would have liked them to support the amendment, but it is not realistic to expect 100 percent support for any Constitutional amendment. Therefore, you cannot be unduly dejected or disappointed.

At the end of the day, notwithstanding the opposition, if there is a two-third majority and more in support of the change, then the changes ought to be made because that reflects the democratic consensus.

Q: The Opposition parties clamour for a referendum; they say that this new set of constitutional amendments should be first put before the public. What is the Government’s majority opinion? Are the Lanka Sama Samaja Party (LSSP) and the Communist Party (CP) with the Government?

A: I cannot speak for the LSSP or the CP. As far as the referendum issue is concerned, the constitution defines very clearly what provisions can be changed by a two-third majority and what requires a two-third majority as well as a referendum as a necessary condition for amendment. The dividing line is very clearly established by the Constitution.

The changes that we are seeking to make do not require the holding of a referendum. But that will be one of the issues that the Supreme Court will be called upon to determine. It is a legal issue to be adjudicated upon by the Court. The Court’s ruling on that matter will be final.

Q:There was a proposal to replace the Constitution with a new constitution including the establishment of a second chamber. Is it correct to assume that these have been put in the backburner?

A: No, that is not the case. Many changes are required. But all these cannot be made at the same time. We have decided to do this in stages, starting with the most urgent amendments. We remain committed to modifications of the existing Constitution in a variety of ways. It has to be a sequenced program.

Q: Is it possible to set a timeframe for these changes?

A: That will not be helpful. If the timeframes are not adhered to, there will be a loss of confidence. The Government is very serious about constitutional reforms and the other matters will also be addressed as quickly as possible.