By Varatharaja Perumal –
The Proposed 19th Amendment (19A), despite its being deemed a cyanide to wipe out Monarchic Authoritarianism and Naxist Patriotism, is a medical tonic essential for restoration of and advance further the health of democracy in and preservation of true unity of Sri Lanka.
My humble submission here is to strengthen it properly.
In the last Presidential election people did not elect a President to rule with the executive presidency but mandated for implementing the 100 days programme pledged and promised by the President Maithripala Srisena. Defeat of the former President Mahinda Rajapaksa was a clear rejection of the executive Presidency and assent to bring the independence of Judiciary, ensure fundamental and human rights and rule of law. People of Sri Lanka has rejected all kinds of narrow, vested interested and chronic nationalism and crude nation theories but have asserted the unity of Sri Lankan nationalism and democratic aspirations irrespective of linguistic and religious differences. The President Sirisena is obliged to the people elected him with an object that he would invariably ensure the implementation of the 100 days programmes, notwithstanding of all kinds of provokes and challenges. It is the duty of not only the President but also mainly of the PM Ranil Wickremesinghe, former President Chandrika Kumaratunga, Gen. Sarath Fonseka, Venerable religious priests who committed good governance to the people, JVP and JHU leaders, SLMC and ACMC leaders and the Tamil leaders including that of upcountry and the North-East, all who campaigned and promised during the last Presidential election. Otherwise, all the lost persons waiting for their opportunity would fly to sky as if newly born angels and raise the question of credibility and dependability of the present government and its supported forces.
It is therefore the President and his advisers and close aides and the Prime Minister to concentrate what is good for the future of the country. When I go through the proposed 19A, I strongly feel to express my appreciation to the commitment of the commendable job that has been done in such a short time by Dr. Jayampathy Wickremaratne and his team of legal experts. However, since they have asked comments, suggestions and corrections from outside of the government, regarding proposed amendments, I being a person having a little experience in the political affairs of Sri Lanka and an ambition to make Sri Lanka to be a genuinely democratic, politically pluralistic, truly peaceful and sustainably developing united nation accommodating all divergences and differences harmoniously.
Right to Access for Information (RTI);
The proposed amendment should include not only the rights but also the duties of all the departments of the government and their district branches to have compulsorily information officers to ensure the access for information without any undue delay to the persons entitled and duly requesting. The relevant Act of the Parliament may contain the provisions for such need. However, as the RTI is a part of the Fundamental rights, the duty of the government should be ensured by the Constitution without any loopholes for the government to excuse and comfortably escape from such duty.
Election to the President;
The future president is going to be a nominal executive head of the State and is going to act always in accordance with the advice of the Prime Minister (PM) and the Cabinet. To elect such a symbolic President, is it necessary that the State should spend so much of vast public resources in order to make the voters of the whole country to exercise their voting rights? The country has experienced that every time the Presidential elections result to a sort of civil conflict and irretrievably dividing the people of the country vertically, not only simply as the division of voters but also as majority versus minorities. The Presidential elections so far have repeatedly facilitated the chauvinistic and narrow nationalistic forces to sustain with mala fide propagation and promotion of distrust and disharmony between the common masses and check the liberal forces from progressing in the process of democracy and devolution.
I, therefore, propose that the 19A should be amended appropriately to elect the next President of Sri Lanka by a widely represented electoral collegiums consisting members of the Parliament, the Provincial Councils and the local councils, All Sri Lankan Services Personnel and registered Professionals including Lawyers and Charted Accountants and if possible extent to include the citizens holding graduation degree and above passed from SL universities and affiliated colleges and other universities recognized by the University Grant Commission.
Election of Interim President;
The interim President should be elected not only by the Parliament but also together with the members of the Council of States and the Provincial Councils. If the Parliament only elects, then such interim President would be a person of the Central Government.
The President to hold some Ministerial Portfolios and the discretionary Powers;
According to the proposed amendment, the President shall have some executive powers, particularly in function referred to in the proposed Art 33(2) (b) and (c). It is not clear whether he would have any specified ministries under him and he would act in exercise his functions in the said matters also on the advice of the PM or act at his discretion.
It is to be clearly said In the proposed constitutional amendments that unless s/he is required to act at her/ his discretion in any function referred expressly and specifically in any clause of the Constitution, the President should act only in aid and accordance with the advice of the PM and his Cabinet. Otherwise, it may be imminent to lead for misinterpretations in the future and will end up with confusion and constitutional crisis as the Provincial councils face in Sri Lanka in respect of the powers of the Governors.
How and Why the President shall be Answerable to the Parliament?
It is widely understood that according to the 19A, the President is going to act always and only on the advice of the PM and the Cabinet of Ministers. In this circumstance, why the President is required to answer to the Parliament, since s/he shall not decide or execute any act on her/his own desire or discretion. All acts executed by the government in the name of the President are not the acts of the President but of the officers and authorities function under the direction and control of the PM and the Cabinet Ministers.
Further, the 19A provides a list of functions to be executed by the President. When some functions are, specifically by the Constitution, reserved for her / him, irrespective of whether s/he shall act at his discretion or otherwise, the President has to act as a Minister in executing such functions. However, it is impossible and improper that the President himself shall in person appear before the Parliament and answer to the questions of the members. It is therefore that the Amendment should provide that the PM or any other Minister should be made answerable to the Parliament on behalf of the President in relation to the acts executed by the President through the officers of the departments functioning directly under the President.
Political affiliation of the President;
To make the new arrangements successful the President should be a non- political person. He may be a member of any political party or a front. But, once s/he is elected to the office of the President, s/he should not be identified or affiliated with any particular party. Then only s/he can be deemed as a symbol of national unity as the Constitution requires.
Status of the Former Presidents;
No former President should contest in any election or hold any office of profit in any part of the State. However, former Presidents should be provided official houses with assistants and servants, adequate emoluments, sufficient transport facilities and necessary level of security, etc. Former Presidents’ immunity may be limited but their dignity should be maintained until they are found guilty on specific criminal charges after due process of law.
Presidential Rule and No Care-taker government;
It is widely acknowledged that the ministers of the incumbent governments misuse the public resources and the State apparatus for their victory in the elections they face. I, therefore propose that during the election for the Parliament, the Central Government should be brought under the Presidential rule in aid and consultation with the incumbent secretaries of the Ministries for the election period from the day of nomination to the taking over of the new government. Later, this principle may be applied to the Provinces.
Review power of the Judiciary;
I expected that the proposed amendment would repeal the Art 80(3) of the existing constitution and empower the Judiciary to review any law at any time as to whether such law or any provision of such law violates any provision of the Constitution or in any manner violates the fundamental and human rights provided by the Constitution. In my opinion, the Art 80(3) of the existing Constitution [it is proposed to be amended as the Art 80(4)], is contrary to the principle of the Constitutional Democracy and it asserts the superiority of the legislative organ over the other organs of the State. So, it contradicts with the principle of separation of powers.
Further, the compliance of all the provisions of an Act to all the provisions of the Constitution and the real practical implications and future consequences in respect of the fundamental and human rights cannot be contemplated fully and comprehensively within the short period given before making the Bill into an Act of the Parliament. Every law of the legislature and act of the government should be in accordance and in compliance of the Constitution, if not, the Constitution would become a redundant and ridiculed booklet. Further, in case somehow the incumbent government manages the judiciary to consent the constitutional validity to its Bill and make the Parliament to pass such Bill to become an Act, then such Act shall prevail permanently despite of its constitutional invalidity. Experience of the Divineguma Act should be taken in to consideration. In such situation the Constitution shall have no value towards such an Act. It denies the sovereignty of the people to reassert and restore always the Constitutional superiority.
It is therefore the 19A should provide flexibility to the Supreme Court of Sri Lanka to decide and review the Constitutional validity of any Act at any time. The assertion of the rule of law sustains not only on the review of the executive functions but also on the review of the law /statutes that in any way or manner may provide the grounds for executives to violate the Constitution.
The Proposed Council of State;
Idea of establishing a Council of States at the Centre is an innovative one. A similar type of arrangement was proposed in the recommendation made by the All Party Representative Committee led by Prof. Tissa Vitharana. The 19A proposes it as a powerless and only a commentary making body on Bill placed in the Parliament and in respect of the acts of the executives and events happening in the country. In this circumstance, the representations of the Chief Ministers in this Council shall have no value except participating to shout in a different forum.
I, therefore, propose a Council of States which shall have someway meaningful and useful functions as following:
1) The Council is to have 100 members in total.
2) The Chairman of the Council may be nominated by the President or elected by the Council itself from the members of the Council or from any of the eminent and experienced personalities in the Country.
3) The Chairman should be a person of a national community other than that of the President.
4) The representation to minority national communities should be reserved together not less than 40 percent of the total members of the Council.
a) Provincial Councils to elect 40 members in total – in average one member to each 10 members of each PC. Out of the 40 members, 20 members should be women in total.
b) Two members from each district, nominated by the Prime Minister in concurrence with the Opposition leader and after consultation with the party leaders represented in Parliament. In case of no concurrence, the President shall have the final decision from the lists of recommendations of the PM and the Opp. Leader. In this representation at least women should be one third.
c) Another 10 members appointed by the Cabinet Decision and ratified by the Parliament
5) Powers and functions of the Council inter alia:
a) If the majority of the members of the Council or the Supreme Court considers in a proceeding or sue motto that a Bill or any provision of such bill is harmful or detrimental to the powers of the Provincial Councils or to any statuary and fundamental rights of any national community, then such Bill or such provisions should not become Act of the Parliament unless such Bill or such provision is approved by the two third members of the Council.
b) Every Bill placed in the Parliament should be discussed and debated and the recommendations approved by this Council should be sent to the Parliament for its consideration and the Parliament should consider the opinions of this Council before making such Bill into an Act.
c) Every Minister of the government should answer by present before the Council to the questions raised in writing by the Members of the Council, in reference to the duties, responsibilities and acts of the Minister or any department, authority or officer of his ministry
d) The Council with the approval of the majority of members should be able to refer any Act or Bill or any act of the government to the Supreme Court of Sri Lanka for obtaining the Constitutional validity of such Act or Bill or such act of the government.
The Constitutional Council;
I wish to note about the proposed Art 41A (1) (e), in accordance of which, five members have to be nominated by the PM and Opposition leader to the Council. I propose that after having consultation with the party leaders in Parliament, the PM and the Opp. leader shall appoint two members each at their choice. In case there is no consent in appointing the fifth person the President may appoint that fifth member from the list of names recommended by the PM and the Opp. leader. However, all three have to ensure that the Constitutional Council reflects the pluralistic character of Sri Lankan society, including professional and social diversity.
Independent Devolution Commission (IDC);
I propose for an Independent Devolution Commission also to be appointed by the Constitutional Council
At present, every Minister of the government and every Governor of the provinces determine and interpret the provisions of the 13A and the related Acts on their own way and understanding. It is one of the main reasons hurdling the effective functioning of the PCs. There are hundreds of differences and disputes with regard to the 13A. Supreme Court is the final authority to provide final interpretation to the provisions of the Constitution and the Constitutional validity of any law. However, if we expect that the Supreme Court would resolve all the disputes and differences relating to the powers of the PCs it will take further many decades, even if all the disputes are raised now before the Supreme Court.
Further when any matter related to the powers of the PCs is taken before the Supreme Court, it immediately become a politically and communally sensitive, consequently such situation creates prejudice to the proceedings and affects the decision of the Court.
Therefore, there is an urgent need of an impartial and independent mechanism to resolve the disputes and differences peacefully and amicably within the four walls between the Central government and PCs, establish a cooperative participation between the both administrations and facilitate the PCs to functions efficiently. The IDC may function as a Resolving / Clearing House between the PCs regarding any dispute among them.
To make a change of shape in an iron rod strike when it is red in hot.
*Varatharaja Perumal – Former Chief Minister of North-East Province