Constitutional Changes Front and Centre | Daily News


 

Constitutional Changes Front and Centre

The country is at the threshold of a major Constitutional Amendment that will reinforce the Executive powers, practically re-instating the status quo that prevailed prior to the 19th Amendment.

The proposed 20th Amendment (20A) to the Constitution will restore the wings of the Executive which were clipped by the 19th Amendment (19A).

The Bill to provide for the 20A was gazetted last week by the Justice Ministry following the Cabinet nod and the Attorney General’s confirmation that a two-thirds majority in Parliament is sufficient for its passage.

The Bill is now in the public domain getting the attention of political parties, constitutional specialists and the citizenry. Some salient features of the proposed 20A have been mentioned in brief separately in this Column. Political analysts observe that the 20A will create a paradigm shift in the system of governance and institutional structure, once adopted.

Then again, it does not force in new provisions that had not been there in our Constitution before. An all-powerful Executive was what the 1978 Constitution, in its original form, gave birth to, and the country’s administration and political landscape have experienced it since then. From time to time, the country has seen constitutional changes to prune down or scale-up Presidential powers in line with the political currents of that particular period.

President Gotabaya Rajapaksa has been very clear in his position since the beginning that he wishes for a free hand to deliver what the people expect from him, and that removing constitutional barriers that stand in the way of implementing his work plan would be his Government’s priority after the General Election.

Following the unprecedented mandate of the people at the last Election, the Government has fast-tracked the Amendment with much vigour, and it wields a super majority to make the Bill sail through Parliament quite effectively.

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While the ruling party members are in agreement with the 20A in principle, some of its allied groups are at variance with some Clauses such as removing the barriers for dual citizens to enter Parliament and giving full legal immunity to the President and they have come up with proposals to drop such Sections.

The Samagi Jana Balawegaya (SJB) led by Opposition Leader Sajith Premadasa and the National People’s Power (NPP) led by MP Anura Kumara Dissanayake have taken a stand against the 20A. The Tamil National Alliance (TNA) led by R Sampanthan will voice its opinion this week following a group meeting, but many in the party have expressed their opposition to it at various functions.

The SJB has also expressed its intent on petitioning to the Supreme Court against the proposed changes to the Constitution. It has decided to organize a public agitation campaign against the Amendment. SJB MP Dr Harsha de Silva posting on his Twitter account opined that the 20A is a mechanism to strengthen the Executive Presidency at the expense of the Legislature, adding that it bestows almost absolute power upon one individual. He questioned how the proposed changes could help strengthen democracy, rule of law or transparency.

NPP Leader Anura Dissanayake, convening a press conference a day after the 20A was made public, registered his Party’s strong opposition to it stating that it drags the society backwards. He also lamented the lack of policies and clear stances of the MPs, observing that some of them had consecutively raised their hands in approval of the 17th Amendment to scrap the Presidential powers in 2001, the 18th Amendment to increase the same powers in 2010 and the 19th Amendment to scrap those powers again in 2015 and are going to repeat the same with the 20A to enhance the same powers once more.

Countering those arguments, several MPs pointed out that their actions had been in the country’s best interests in accordance with the times. While defending the 20A, the Government members were highly critical of the Constitutional Council, adding that its members as well as the members appointed by it to Independent Commissions were not ‘independent’ at all. They observed that the people, at the last two Elections, spoke out their disapproval of the mess created by the 19A.

The Sri Lanka Freedom Party (SLFP) MPs said that they were supporting the Government to bring in a new Constitution. Former President Maithripala Sirisena and his group of 14 MPs will be in an awkward position when it comes to supporting the 20A as it was under his leadership the 19A was passed in Parliament. However, former President Sirisena, with the benefit of hindsight, complained in the latter part of his Presidency that the 19A had led to an imbalance of power and also described the 19A “as a curse”.

New Constitution

In the meantime, the Government has begun the process of drafting a new Constitution to replace the Second Republican Constitution formulated by former President late J R Jayewardene. For 42 years, successive Governments and the people have been battered by the ill-effects of Jayewardene’s Constitution, which legendary intellectual late Dr N. M. Perera, a former Finance Minister and a founding member of the Lanka Sama Samaja Party, then described as a “hotchpotch of the Anglo-Saxon Parliamentary system and the American Presidential system”.

“What J. R. Jayewardene has conceived is a mixture of the Presidential-cum-Parliamentary system. It is a mixture that does not mix,” Dr N. M. Perera said, foreseeing the many constitutional snags the country experienced in the years that followed.

Dr Perera in his well-articulated thoughts argued that Jayewardene’s Constitutional change was “ill-conceived and inapplicable to the political situation in this country”. Four decades down the line, all parties across the political divide are in agreement that it is high time to bring in a new Constitution to dispense with the heavily “patched-up” Constitution that will soon see another revision.

To set an exhaustive process in motion to draft the country’s Supreme Law, the Government last week appointed a nine-member Expert Committee headed by President’s Counsel Romesh de Silva and consisting of legal luminaries and academics. There was extensive deliberation on making a new Constitution under the previous coalition Government too, but the process was stalled due to lack of concurrence of the political parties and dithering at the highest level of Government.

The previous Parliamentary committee level deliberations on vital aspects of the Constitution and the set of recommendations in those reports may provide valuable inputs to the renewed exercise. The Government aims to bring in far-reaching changes, including electoral reforms, in the new Constitution with inputs of all stakeholders. It will be a more prolonged and profound process where the opinions of all parties will be sought.

 

 


A 20-point analysis of the proposed 20th Amendment

* The ten-member Constitutional Council will be replaced by a five-member Parliamentary Council comprised of the Speaker, Prime Minister, Opposition Leader and two MPs nominated each by the Prime Minister and the Opposition Leader. Civil Society representation has been dropped.

* The Council’s role is to send observations to the President on appointments to the Independent Commissions and high rank posts.

* The President appoints the Chairmen and members of the Independent Commissions, Chief Justice and superior court judges, Attorney-General, Auditor-General, Ombudsman and Secretary-General of Parliament.

* The Inspector General of Police (IGP) is appointed by the Police Commission.

* The National Procurement Commission and the National Audit Commission will be abolished. The Auditor General will take back the reins. He is not required to audit the Office of Secretary to the President, Office of the Secretary to the Prime Minister and companies with more than 50 per cent stake to the Government.

* The President can dissolve Parliament one year after a General Election.

* The President can consult the Prime Minister, if he considers it necessary, when appointing Ministers. The President can remove the Prime Minister, Cabinet Ministers and Deputy Ministers.

* Any number of Ministers and Deputy Ministers can be appointed.

* The President can assign any number of Ministries and institutions to himself or herself.

* The President has full legal immunity except for limited situations.

* Dual Citizens are no longer disqualified from contesting Parliamentary or Presidential Elections.

* Minimum age limit to contest the Presidential Election has been reduced to 30 from 35 years.

* Bills have to be gazetted seven days prior to placing it in Parliament. This period is 14 days under the existing provisions.

* The Government can present ‘Urgent Bills’, but a Constitutional Amendment or a new Constitution cannot be passed as an urgent Bill. The President can directly refer such Bill to the Supreme Court to decide on the Constitutionality, and the Supreme Court has to give its determination within 24 hours or three days depending on the instructions of the President. No requirement to gazette urgent Bills.

* The President can submit any Bill rejected by Parliament to the People by way of a Referendum, but this provision is not valid for a Constitutional Amendment or a new Constitution.

* The Election Commission will not be authorized to issue guidelines pertaining to the public service during the period of an election.

* The media guidelines issued by the Election Commission are applicable to both the state and private electronic and print media.

* A failure of a public officer to cooperate with the Election Commission to enforce any Election law, or a failure of a public officer to comply with the Commission’s directions or guidelines will no longer be an offense.

* The National Police Commission can investigate into complaints against a police officer or the police force and provide redress. It will not have the power of appointment, promotion, transfer, disciplinary control and dismissal of police officers.

* Removes constitutional recognition for the Commission to Investigate Allegations of Bribery and Corruption.

 


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