The Twentieth Amendment to the Constitution Bill (20A) is in the public domain. If I were to describe it in one sentence – 20A seeks to take the country backwards to the 2010-2015 period. The only features introduced by 19th Amendment that would survive if 20A is passed in its present form would be the five-year term of the President and Parliament, the Presidential term-limit and the fundamental right to information (RTI).
Several summaries of 20A have been published and I do not intend providing another. Instead, I will highlight its adverse impact on democratic governance and its prejudicial effects on the sovereignty of the People and argue that 20A needs the approval of the People at a referendum.
Dr. Colvin R. De Silva described the system of government under the 1978 Constitution as a constitutional presidential dictatorship dressed in the raiment of a parliamentary democracy. With the 18th Amendment, the executive presidency in Sri Lanka became one of the strongest and vilest, if not the strongest and vilest, presidential systems in the ‘democratic’ world. Now, 20A seeks to reverse the gains of 19A and take the country backwards.
19A has its shortcomings, most of them due to the changes that the draft that was submitted to the Cabinet underwent. That draft was initially prepared by a team that consisted of three retired senior officials of the Legal Draftsman’s Department, myself and another legal practitioner. The several drafts that were prepared were vetted by a Cabinet-appointed committee headed by the Prime Minister. Dr. Colvin R. De Silva’s famous statement “When a Constitution is made, it is not made by the Minister of Constitutional Affairs” – applied equally well to the drafting committee. This is not to say that we did not have any space. We did, but each and every provision that we proposed was cleared by the high-powered committee. The recognition of the right to information as a fundamental right, the elevation of the Commission on Bribery or Corruption to constitutional status and the National Procurement Commission were among the drafting committee’s proposals that were so approved. As the initial drafting process neared its end, the drafts were shared with the Legal Draftsman who put the final touches as he was required by law to do.
In the morning of 15 March 2015, which was a Sunday, the finalized draft which had been sent to the Office of the Cabinet of Ministers a few days earlier was discussed at a meeting held at the Presidential Secretariat, presided over by President Sirisena. At the meeting, representatives of the political parties of the Opposition, the Sri Lanka Freedom Party – whose MPs sat in the Opposition while its leader now was President Sirisena – and the Jathika Hela Urumaya, which was in Government, were strongly opposed to the extent of the proposed erosion of powers of the President. The Prime Minister and the leaders of the United National Party and the other parties of the Government offered little resistance. The absence of the Tamil Nationalist Alliance and the Janatha Vimukthi Peramuna, which were not invited, was also a contributory factor. The writer’s perception was that the opposition to the draft was pre-planned, with the tacit approval of President Sirisena. The Opposition’s big advantage was that the Government did not even have a simple majority in Parliament and needed Opposition support for any constitutional amendment. More changes were made during the Committee Stage in Parliament. While some of them were made to fall in line with the determination of the Supreme Court, others such as dropping the anti-cross-over provision were made due to pressure from the Opposition.
Readers may pardon me for quoting Colvin again and again. Responding to JR Jayewardene’s proposal in the Constituent Assembly for a Presidential form of government, Dr. De Silva warned against the danger of counterposing the Prime Minister, chosen by the people who are sovereign, against a President who is directly elected. That would result in two powers at the apex of the State counterposed to each other, each drawing its power from the same source, the sovereign people, but each drawing the power independent of the other. ‘No Constitution will be able to define adequately and satisfactorily the relationship between the two and the United States of America is precisely the best example of that’, he said. The experiences under 19A clearly underscore the need to completely abolish the Presidential form of government and move towards a Parliamentary form, not to go backwards.
Sword of Damocles over Parliament
Under 20A, the Sword of Damocles, in the nature of Article 70(1), will hang over Parliament. The President can dissolve Parliament at any time, even if the Prime Minister (PM) commands a comfortable majority in Parliament—that is what President Kumaratunga did in 2004. The only fetter on the power of dissolution is that if the previous Parliament had been dissolved before completing its five-year term, the President can dissolve the new Parliament only after one year. If the previous Parliament had completed its full term, the President can, under proposed Article 70(1), dissolve the new Parliament even one day after it holds its first meeting.
PM, a peon again
Mr. R. Premadasa, before he became President of course, likened the PM under the 1978 Constitution to a ‘peon’. Today, the PM, who is the MP who commands a majority in Parliament, has much more power, thanks to 19A. If 20A is passed, the PM will again be relegated to the status of a peon. The President can remove the PM at will. Ministers and Deputy Ministers will not be appointed on the recommendation of the PM. The President may consult the PM but is not obliged to. Ministers and Deputy Ministers may be removed without reference to the PM. It is the President who decides the subjects and functions of Ministers and changes them; the PM has no role whatsoever.
The proposed provisions relating to the dissolution of Parliament and the weakening of the PM would result in a consequential weakening of Parliament, which is the institution that exercises the legislative power of the People, and thus adversely impact on the sovereignty of the People.
President unfettered in making appointments
The Constitutional Council, re-introduced by 19A, provides for a national consensus on appointments to important positions, including the judiciary and the independent commissions. The Constitutional Council has representatives from both the Government and the Opposition, including a representative of the smaller parties. The President also has a representative. The Council also has three eminent persons who are not in politics and who are nominated jointly by the PM and Leader of the Opposition after consulting leaders of political parties represented in Parliament. In appointing these three persons and another two MPs, the PM and Leader of the Opposition must ensure that the Constitutional Council reflects the pluralistic character of Sri Lankan society, including professional and social diversity.
Under 20A, the President would only ‘seek the observations’ of a Parliamentary Council, which consists of the Speaker, PM, Leader of the Opposition and two MPs. The leverage that the Constitutional Council had with important appointments would be completely gone. The President will be unfettered in making appointments to the judiciary, certain high posts and the independent commissions, compromising the independence of these institutions and positions and resulting in the loss of the people’s confidence in them.
Before 19A, the Attorney-General and the IGP were required to obtain extensions from the President upon reaching 58 years, thus compromising their independence. K.C. Kamalasabayson, one the best and most respected AGs Sri Lanka had, died a disappointed man after he was given only a 3-month extension. 19A provided that the AG and IGP would retire at 60, so that they would not be at the mercy of the President. This provision would be negated by 20A. The belief in some quarters that the AG and IGP cannot not be removed under 19A is patently wrong. The Removal of Officers Act No. 5 of 2002 provides for their removal upon an address for removal being passed by Parliament after due inquiry.
The writer submits that the removal of the salutary provisions relating to the appointments referred to and the consequent adverse impact on the independence of the institutions and high positions impinges negatively on the sovereignty of the People and would therefore necessitate a referendum.
Adverse effects on fundamental rights
An obvious erosion of the sovereignty of the People is the proposal to take away the right of a person under Article 17 to invoke the fundamental rights jurisdiction of the Supreme Court when a fundamental right to which s/he is entitled is infringed by the President. Article 17 being a provision in the chapter on fundamental rights, the right to complain to the Supreme Court is itself a fundamental right. The original 1978 Constitution made an exception to this right by giving the President total immunity from suit. 19A made the President’s official acts subject to the fundamental rights jurisdiction and thus removed the anomaly, thereby strengthening fundamental rights and thus the sovereignty of the People. It was that change that made it possible for citizens to successfully challenge the unconstitutional dissolution of Parliament by President Sirisena. Now, a restriction of the fundamental right under Article 17 would offend Article 4(e) (‘the fundamental rights which are by the Constitution declared and recognized shall be respected, secured and advanced by all the organs of government and shall not be abridged, restricted or denied, save in the manner and to the extent hereinafter provided’) and consequently Article 3, which states that sovereignty includes the powers of government, fundamental rights and the franchise.
Article 3 is one of the Articles listed in Article 83. A Bill for the amendment or for the repeal and replacement of the provisions so listed, or which is inconsistent with any of them, requires approval at a referendum.
In regard to the argument that since 19A was not approved at a referendum, its provisions could also be deleted or amended without a referendum, it is submitted that a referendum is not needed to enhance sovereignty. For example, if the right to life is to be included in the chapter on fundamental rights, that would not necessitate a referendum. But to take away the right to life later would certainly need approval at a referendum. The gains achieved through 19A contributed to the strengthening of the sovereignty of the people. Therefore, the removal of the gains so achieved prejudicially impacts on sovereignty and necessitates approval at a referendum.
To ascertain whether sovereignty is adversely affected by 20A, it must be compared with the existing Constitution, not with the pre-19A Constitution or the original Constitution of 1978 which do not exist anymore. There is only one Constitution and that is the present Constitution.