Constitutional Amendments formulated

by Manjula Fernando

Two important Constitutional Amendments, as promised by the Government as the Common Opposition during its election campaign, are now in the initial stages of formulation. The 19th and 20th Amendments will carry important reforms to prune executive presidency and bring in electoral reforms, both of which are expected to be fulfilled before the next general election.

The Sunday Observer met one of the key brains behind the project, Constitutional Law expert Dr. Jayampathy Wickremaratne last week to discuss what to expect under the Amendments and what the new law meant for the people of Sri Lanka.

Excerpts of the interview,

Q: What is the need for a 19th Amendment to the Constitution ?

A: Democracy and Governance were the main issues at the last election. Of course there was the question of the cost of living. But governance issues arose out of the constitutional provisions that provide for authoritarian rule and that was what the Rajapaksa regime did.

The authoritarian state of affairs was firstly due to the Constitution and secondly due to the Rajapaksa style of governance.

Because the Constitution allows the concentration of power, Parliament is devalued. Under the Rajapaksa regime Parliament lost its value.

The President is above the law, you cannot even file a Fundamental Rights application against the President in Courts. But it really became bad under the previous regime, Then there was corruption, nepotism and flouting the rule of law. It was never as bad as this.

As I said most of these issues can be traced to the Executive Presidency.

Not every citizen in this country understood it that way. But a large percentage of people realised that there was something wrong. During the campaign you found people saying yes there is corruption, something has to be done. There is this family rule, something has to be done.

While not understanding the root cause of all this, most people understood the consequences of the Executive Presidency.

I would describe the Sri Lankan Executive Presidency as one of the most if not the most powerful in the democratic world. Because there are no safeguards, there are no checks and balances, he enjoys total immunity from any lawsuit - the president is above the law and Parliament.

We need to rectify this. That was one of the main campaign promises of the Government, that you would have a democratic structure in place.

We are not going for a new Constitution now. Drafting a new Constitution is not easy. What the Government thought was to immediately introduce two constitutional amendments, one to democratise the state by the abolition of the executive presidency bringing in a parliamentary form of government and also to bring back the 17th Amendment which will reinstate the Constitutional Council and independent commissions. That is the first Amendment.

The second Amendment would be electoral reforms. That would be the 20th Amendment.

The 19-A is being discussed, there is a concept note that is being shared with the Opposition and we are now awaiting the response from opposition parties.

Q: What are the changes proposed to the Executive Presidency under the 19th Amendment proposals?

A: About the Presidency, he will be the head of state and he will continue to be the head of the Executive. Even under the 1972 Constitution, the President was the head of Executive but executive powers were exercised on the advice of the Prime Minister and the Cabinet of ministers.

He will also be the commander-in-chief but the President will, except on the issue of the appointment of the Prime Minister or where otherwise required by the Constitution, always act on the advice of the Prime Minister and the Cabinet.

The President will have some powers but not executive powers. For example, like in India, the President may ask the Prime Minister to reconsider the advice given to him. He may also require Parliament to reconsider a Bill that may have been presented him for certification. Under the proposed amendment, the certification of new Bills will be taken away from the Speaker and vested with the President. He has an opportunity to ask Parliament to reconsider legislation and to ask Cabinet to reconsider decisions.

But once the reconsidered Bill is presented, he has no option then.

In addition to that, the usual powers of the President in any country would be available to him, such as appointment of ambassadors, President's Counsels, to declare war and peace, re-summon Parliament on the advice of the Prime Minister. In addition, there is a proposal to designate the President as a symbol of national unity. He will also promote national reconciliation and integration.

He will also have an important role to play in governance issues, we will ensure and facilitate the preservation of religious and ethnic harmony, he will also ensure and facilitate the proper functioning of the constitutional council and the Independent Commissions.

Therefore, the President won't be a mere figurehead like President William Gopallawa under the 1972 Constitution.

But presidential immunity will be taken away. All acts and omissions of the President in his official capacity can be challenged in court by the appropriate application against the Attorney General. The Attorney General will be made the respondent.

This is something President Sirisena talked about on his election platform. He said "My actions as the President must be permitted to be questioned in a court of Law ".

The term of the President will be reduced to five years. That is the proposal in the draft. Actually the President wanted it reduced to four years but the general consensus was, both Parliament and the term of office of the President must have five years.

Q: So it will be a parliamentary form of Government?

A: It will be a parliamentary form of government. The President will appoint as Prime Minister, a Member of Parliament who in his opinion is most likely to have the confidence of Parliament, just like in any other parliamentary form of government.

We will also make provisions for a Deputy Prime Minister. In case such a deputy Prime Minister is needed. It is not mandatory but it can be used if there is a coalition government.

The number of ministers will not exceed 30. The total number of ministers and deputy ministers will not exceed 40. This is to be further discussed.

There will be special provisions relating to the present president in that he will be able to hold ministries. But this is only for the present term of the current president. He had expressed a desire in this regard and it will be permitted by the Constitution.

When he wants to discuss an issue relating to his subjects, he can summon the Cabinet of Ministers in which case he will preside over the Cabinet.

We are following the new British law with regard to parliamentary affairs. In Britain now there is a limitation on the dissolution of Parliament. People don't want Parliament to be dissolved at one person's will.

The proposal is to restrict the dissolution in the first four and a half years. It cannot be dissolved unless such a request is made by Parliament with a two thirds majority.

Q:What are the other key features of the 19th Amendment?

A:There are proposals to bring back the 17th Amendment and abolish the 18th Amendment.

The constitutional council and the independent commissions to be set up. There are proposals for two new commissions – the audit service commission and the national procurement commission.

During President Chandrika Kumaratunga there was a procurement council to over see procurement of goods and services to government agencies. That was later abolished during President Mahinda Rajapaksa's time.

We want to bring it back and upgrade it to a constitutional commission. The Constitutional Council will appoint members to this Commission.

The procurement Commission will formulate fair equitable transparent, competitive and cost effective procedures and guidelines for procurement of goods and services by all government agencies.

There is a proposal by the Sri Lanka Bar Association and the legal community that when judges are appointed to the higher courts, the views of the Chief Justice, the Minister of Justice, the Attorney General and the president of the Bar Association must also be considered.

The National Police Commission will also be brought back. Matters concerning police officers including appointments will be entrusted with the NPC.

Q:Is there a proposal for a Second Chamber?

A: There is a proposal to have a Council of State. It is not a legislative body or a Second Chamber.

But to have representatives form civil society, various political parties, the Chief Ministers not as a Second Chamber but to consider draft legislation. All draft legislation will be available to them to make recommendations. Matters of national importance will also be referred to them.

These are emerging proposals that need to be finalised after wide consultation.

There will be consultative committees for each ministry and for them to be given constitutional recognition.

Meetings of many of the Parliamentary committees such as Public Accounts Committee, COPE and select committees are proposed to be held in public.

The Constitutional Council will appoint members to all the independent commissions and the Constitutional Council will be appointed as stipulated in the 17-A.

Except that the five members appointed by the Prime Minister and the Leader of the Opposition, will be required to consult the leaders of the political parties and independent groups to ensure the Constitutional Council reflects the pluralistic character of Sri Lankan society including professional and social diversity. Previously there was a complaint that the CC consisted of only lawyers.

The Audit Service Commission will also be given constitutional recognition. That will be handled by the Auditor General.

The National Procurement Commission will be a important aspect, because during the last few years there was this issue of unsolicited bills and tender procedures being overlooked.

They will report if guidelines are being followed in procurement of goods and services.

The Right to Information will be included in the Constitution as a fundamental right.

The usual safeguards will be there, restrictions in the interests of national security and privacy, Parliament will pass a law to give effect to this right.

Q: How soon will the two Amendments reach Parliament ?

Draft proposals have been shared with the parties in the Opposition. We are expecting a feed back soon. The public will also be given an opportunity to respond. I cannot say anything about a timeline but we want to wrap it up soon.

Q: These proposals have been given consent by the political parties in the Government ?

These are being drafted with the participation of parties in the Government.

Q: Will it require a referendum ?

A: No. We are trying to avoid a referendum. Of course any constitutional amendment will require a two thirds majority in Parliament but we want to draft it in such a way that hopefully that we will not have to spend millions and billions of rupees on a referendum. And the people have given a verdict. The people's will has been very clear. It was expressed at this election.

Q: Will there be any proposals to change the 13th Amendment ?

No. The 13th Amendment will not be touched during this round of reform.

Q: Some of the powers vested with the President ensured the unitary form of the Sri Lankan state?

Powers of the President under the 13th Amendment regarding provincial councils, remain with the President except that in the future, they will be exercised on the advice of the Cabinet of Ministers including the Prime Minister.

The President cannot act unilaterally. And if the President does not agree with the decision given, he will be entitled to ask the Cabinet to reconsider. There will be consultation between the President and the Cabinet, as in India. In India there has never been a problem.

Q: When implementing any project or something similar in the state sector, a lot of consultation will take place. Will it increase the unnecessary bureaucracy and the red tape and hamper the country's progress ?

Consultation is good even if there is a minor delay. The decisions taken are informed decisions.

Q: What assurance can you give that this amendmet will not create further divisions among communities ?

Not at all on the contrary. These proposals will democratise Sri Lanka.

Q: Will it be brought in before the next election ?

Yes. The idea is to bring it before Parliament before the election.

Q: Wouldn't it be a hastily prepared law?

This has been discussed over the last few years. The abolition of executive powers has been an issue for the last few years. There is no haste in this whole thing. No one can suggest that this has been done in a hasty manner. It was one of the main issues at the last election. We have had at least 2-3 years. For 35 years we have been criticizing the executive office.

There has been an interesting debate. There is a separate committee, which is preparing the preliminary draft. It is the norm. But the draft prepared by the commitee, finally goes to the legal draftsman. It is the legal draftsman who will fine tune it and approve the final draft. He will correct the loopholes and mistakes. It will be referred to the Attorney General also.