By Nihal Jayawickrama –

Dr. Nihal Jayawickrama

The Bill for the Nineteenth Amendment to the Constitution has been drafted, published in the Gazette and placed on the Order Paper of Parliament without any opportunity for public consultation. Once more, a government has arrogated to itself the sole power to draft a constitution, ignoring the fact that the constitution belongs to the whole country and all its inhabitants. It is a social contract between the citizens and the state, whereby the people agree to submit themselves to the power of the state, and agree to the manner in which that power will be distributed, exercised and limited among the institutions of government. A constitution should not be the product of political bargaining between competing political parties; nor should it result from the application of the party whip.

The proposed Nineteenth Amendment to the Constitution appears to have been drafted with care to reflect some of the commitments made in the common programme of the common candidate for the presidency which received the overwhelming support of all ethnic and religious groups of this country. However, a reading of the Bill reveals several provisions which, if enacted, could impede the governance of this country, and interfere with the lives of ordinary Sri Lankans as well.

Access to Information

The proposed new Article 14A seeks to introduce a new fundamental right, namely, the right of access to information, notwithstanding the fact that the right to seek, receive and impart information is an element of the “freedom of speech and expression including publication” which is already guaranteed in Article 14(1)(a) of the Constitution. What is now required is a substantive law that gives practical effect to that fundamental right. Instead, what is being offered is a constitutional provision that reflects a serious misunderstanding of the concept of access to information. Article 14A seeks to grant every citizen the fundamental right of access to any information held by “any other person”, “being information that is required for the exercise or protection of that citizen’s rights”. As far as I am aware, there is no legislation in any country in the world that gives a citizen the right of access to information in the possession of another “person”.

The draftsman has apparently borrowed this provision from the 1996 Constitution of South Africa which was drafted in the context of the “secretive and unresponsive culture” that had prevailed under the apartheid regime. The draftsman appears to have ignored the fact that when substantive legislation was enacted in that country, that error was rectified and the term “private bodies” was substituted for “persons”. In the absence of any such implementing legislation in Sri Lanka, will my neighbour now acquire a constitutional right to intrude into the privacy of my home in search of information (perhaps my research material !) that may be useful to him for the purpose of vindicating his rights in a court of law?

Access to information means a right of access to information in documentary form in the possession, custody or control of departments of government or other public bodies constituted under the law for any public purpose. It is about open government and accountability and the strengthening of democratic processes. It is not about access to information in the possession of private individuals. Nor should the exercise of that right be restricted under an omnibus clause that includes grounds such as “the protection of health or morals” as stated in the Bill. Exempt documents are usually those that may prejudice a pending criminal investigation, information communicated in confidence by the government of a foreign state, trade secrets, yet incomplete scientific research, and such like.

Presidential Immunity

The proposed new Article 35 continues to provide the President with immunity from civil or criminal proceedings. An examination of comparative constitutions, including those of France, South Africa and the Republic of Korea, will reveal that such immunity is enjoyed only in monarchical states and not in democratic republics (where everyone is equal before the law and subject to the equal protection of the law). Even the President of the United States has not been granted any such immunity under the Constitution of that country, although the Supreme Court has declined to issue judicial directions in respect of his official acts. Under the existing and proposed provisions of the Constitution, even a president’s spouse is prohibited from instituting a civil action for divorce or for maintenance!

Acting President

The proposed new Article 37 states that whenever the President is absent from Sri Lanka or is otherwise unable to perform the functions of his office, the Speaker shall act in that office. This is a departure from previous practice in regard to the office of the constitutional head of state. Under both the 1946 and 1972 Constitutions, provision was made for the Chief Justice (or the chief judge of the highest court) to assume that office during such a period if no other person was appointed to act. If the office of President is expected to be non-political, it would be inappropriate for an elected politician belonging to a political party even to act in that office. Moreover, in terms of Article 66 of the Constitution, the seat of a Member of Parliament becomes vacant if he becomes subject to any disqualification specified in Article 91, and one of these disqualifications is “if he is the President of the Republic” – even for a day!

In 1975, when President Gopallawa was due to leave the Island on an official visit, the then Speaker, Stanley Tillekeratne, staked a claim to be appointed to act. At the request of the Prime Minister, I sought the opinion of the Attorney General on this matter. Mr Raja Wanasundera was of the view that the combination of the offices of Speaker and President would be against the whole spirit of the Constitution. He wrote:

Both as the Speaker and as a Member of the National State Assembly, he is part of the legislature which does not directly exercise executive and judicial powers. The office of President is one of the most important offices contemplated by the Constitution. The President is the head of the Executive. Having regard to the functions and duties reposed in these offices, it seems to me that the nomination of a person who is a Member of Parliament and the Speaker of the National State Assembly, to act in the office of President, would tend to negative the distinctions drawn in section 5 of the Constitution.

The incompatibility would clearly arise if the person concerned is deemed not to vacate the office of Speaker or Member of Parliament, or both, on acting for the President. If, on the other hand, we take the view that the Speaker vacates office on acting for the President, then it seems that a new Speaker will also have to be appointed. The provisions of the Constitution seem to indicate that the office of Speaker and Deputy Speaker are different, and the Constitution contemplates that both offices should be filled.

The Attorney General concluded that having regard to the incompatibility referred to above, it was not desirable that the Speaker should be nominated to act in the office of President. Accordingly, Chief Justice Victor Tennekoon assumed the office of President, and Mr Justice Samarawickrema was appointed to act in the office of Chief Justice.

The Constitutional Council

The proposed new Chapter VIIA provides for the establishment of a Constitutional Council. However, that chapter does not appear to have taken note of the unfortunate experience of the previous Constitutional Council. Five persons are required to be appointed on the nomination of both the Prime Minister and the Leader of the Opposition. What would happen if these two opposing politicians are unable to agree on five or lesser number of persons? Similarly, what would happen if the Members of Parliament of other political parties and independent groups are unable to agree on one member to be appointed? Surely, provision ought to be made for the President to make such appointments on his own initiative in such situations.

Secretary to a Ministry

In the proposed new Article 52, provision is made for the appointment of a Secretary for each Ministry who shall “subject to the direction and control of his or her Minister” exercise supervision over the departments of government and other institutions in charge of the Minister. In the 1946 Constitution, the Permanent Secretary exercised such supervision “subject to the general direction and control of his Minister”. In the 1972 Constitution, the word “general” was deleted. “General direction” related to matters of policy only; “direction” on the other hand could be case specific if the Minister was so inclined. Thereby, the Minister, and through him numerous Members of Parliament and constituents whom he wished to humour or accommodate, became directly involved in the routine administration and decision-making processes of government departments.

This change appeared to have considerable support at the time among the Ministers since many of them believed that Permanent Secretaries who had been appointed by the President on the recommendation of the Prime Minister, sometimes with no prior consultation with the Minister to whom the Ministry had been assigned, were a channel through which the Prime Minister exercised oversight and influence, if not control, over those Ministries. That change stripped the Permanent Secretary of his independence, and transformed that office into that of a political agent who could be required to carry out the specific directions of the Minister even on matters where independent action was desirable. Having served as a Permanent Secretary under the 1946 Constitution and as a Secretary under the 1972 Constitution, I would strongly urge that the independence of that office (and thereby of the public service as a whole) be restored by permitting only “general” direction.

Dissolution of a Ministry

The proposed new Article 52 also states that the Secretary to a Ministry shall cease to hold office upon the dissolution of the Cabinet of Ministers, which is an event that would ordinarily happen at the conclusion of a general election. It is precisely at such a time that a Ministry should continue to function under a Permanent Secretary until a new Ministry is created or a new Minister is appointed. The conclusion of a general election should be the time for an orderly transition, and the Permanent Secretary should be the link between the past and the future.

Dissolution of Parliament

To curtail the power of the President to dissolve Parliament during the first four years and six months of its five year term (except on a resolution passed by not less than two-thirds of the whole number of members – including those not present – voting in its favour) as is sought to be done in proposed new Article 70, is a recipe for anarchy. What would happen in a Parliament in which no single party has a clear majority, and each government that is constituted is defeated after a few months, or a budget is repeatedly rejected, and members are unwilling to vote for a dissolution until they have qualified for their pension at the end of the fifth year? Surely the President must have that reserve power to dissolve Parliament and call a general election to ensure that stability returns to governance.

Head of Government

Much has been made in certain political circles about the lack of a reference to the “head of government”. There was no reference in either the 1946 or the 1972 Constitutions to a “head of government”. As in both those Constitutions, the President (or Governor-General in the 1946 Constitution) is the head of the executive (i.e. the government), while the Prime Minister is the head of the Cabinet of Ministers which is charged with the direction and control of the Government of the Republic.

The Issue of the Referendum

The proposed new Article 3 provides for the President of the Republic to be “elected by the People”. A national election of a constitutional head of state is a luxury that Sri Lanka cannot afford. This provision is probably being retained in the Nineteenth Amendment for fear that any other, more rational, form of election (such as by Parliament) may require approval at a referendum. It is time that this unreal fear, unleashed by a 2002 judgment of former Chief Justice Sarath Silva, is finally laid to rest.

Following the general election of 5 December 2001 at which the UNP secured a comfortable majority in Parliament, President Kumaratunga invited her principal political opponent, Ranil Wickremesinghe, to form a government. In mid-2002, fearing that President Kumaratunga may exercise her power of dissolution at any time, the UNP Cabinet decided to seek parliamentary approval to amend the Constitution, inter alia, to make the President’s power to dissolve Parliament subject to parliamentary control whenever the majority of members belonged to a political party of which the President was not a member.

Chief Justice Silva constituted a seven-judge Bench, from which he excluded the three most senior judges, to examine the constitutionality of the Bill. This Bench held that the proposed amendments to the Constitution infringed Article 4. A Bill that is inconsistent with Article 4 may be passed by a two-thirds majority and does not require approval at a referendum. The Chief Justice, however, went beyond his judicial role, and trespassing into legislative territory held that Article 4 was “linked” to Article 3 which is one of twelve Articles of the Constitution which require both a two-third majority in Parliament and approval by a majority at a referendum for the adoption of any inconsistent legislation. He thus retained for President Kumaratunga the power to dissolve Parliament at a moment of her choosing, a power that she exercised a few months later.

Article 83 of the Constitution specifies twelve “entrenched” Articles. These, apart from Article 83 itself, are Articles 1 (The State), 2 (Unitary State), 3 (Sovereignty is in the People and is inalienable), 6 (The National Flag), 7 (The National Anthem), 8 (The National Day), 9 (Buddhism), 10 (Freedom of Thought, Conscience and Religion), 11 (Freedom from Torture), 30 (Term of Office of the President), and 62 (Duration of Parliament). Article 4, which describes the manner in which the Sovereignty of the People is exercised – i.e. legislative power by Parliament, executive power by the President, judicial power through courts, fundamental rights, and the franchise at elections, is not one of them.

It is interesting to recall that in the original draft Constitution prepared by the Select Committee of the National State Assembly, Article 4 was also included as an entrenched provision. However, on 16 August 1978, when the Bill containing the draft constitution was being considered in committee, Justice Minister Devanayagam moved that the reference to Article 4 be deleted, and it was so agreed. Therefore, what the legislature deliberately omitted is what Chief Justice Sarath Silva sought to re-introduce. It may be that other judges before him have also shared his view, but it is Parliament, and not the Supreme Court, that can add or delete provisions of the Constitution. The sooner that Parliament asserts its authority to do so, the better it would be for the governance of this country.