Important but imperfect.
This is how some have described the draft of the proposed 21st Amendment to the Constitution Bill (the framers of which are Justice and Constitutional Reforms Minister, President’s Counsel Dr. Wijeyadasa Rajapakshe, Prime Minister Ranil Wickremesinghe, and lawyers associated with the latter), which has been presented to the Cabinet of Ministers and the political parties represented in the Parliament, but is yet to be gazetted as it awaits amendments in the form of additions and omissions of text from the aforementioned groups prior to resubmission to the Cabinet for approval.
A lot has been made of the fact that the objective and purpose of the proposed 21st Amendment to the Constitution is to restore the provisions of the 19th Amendment to the Constitution and to enhance its overall intent (a ‘19/19th plus’ so to speak) which is to curtail the powers of the Executive Presidency, provide for a more democratic mechanism for the process of making apex public appointments, and to improve accountability, financial independence and transparency, and also to repeal the 20th Amendment to the Constitution.
Be that as it may, anything (the Kantian [reference to German philosopher Immanuel Kant] ‘thing-in-itself’ if you will) – in this case, the draft 21st Amendment to the Constitution Bill – must stand on its own merits and demerits. Hence, to rectify its flaws, address its shortcomings and perfect its imperfections, one is required to refer to the philosophical amuse-bouche proffered by the piquant fulltime forensic psychiatrist and part time cannibal, Dr. Hannibal Lecter in The Silence of the Lambs who cites the Roman Emperor and stoicist Marcus Aurelius. In Meditation X, found in Book Eight of Aurelius’s Meditations, we are told how to “examine all things that present themselves” by inquiring into “This, what is it in itself, and by itself, according to its proper constitution? What is the substance of it? What is the matter, or proper use? What is the form, or efficient cause? What is it for in this world, and how long will it abide?”
The draft of the 21st Amendment to the Constitution Bill proposes the repeal of Chapter VII A of the Constitution on The Executive – The Parliamentary Council. The Parliamentary Council is comprised of the Prime Minister, the Speaker of the Parliament who is also the Chairperson of the Parliamentary Council, the Opposition Leader, a Parliamentarian nominated by the Premier and a MP nominated by the Opposition Leader. It is tasked with making observations – note that it is not with making recommendations or approvals – to the President, on the making of apex appointments, namely the Chairpersons and Members of independent Commissions and the Chief Justice (CJ) and the Judges of the Supreme Court (SC), the Court of Appeal (CoA) President and the Judges of the CoA, Members of the Judicial Service Commission, the Attorney General, the Auditor General (AG), the Parliamentary Commissioner for Administration (Ombudsman), the Secretary General of the Parliament and the Inspector General of Police (IGP). The Commissions in question include the Election Commission, the Public Service Commission, the National Police Commission (per the said draft Bill is to be tasked with the appointment, promotion, transfer, disciplinary control and dismissal of Police officers in consultation with the IGP), the Human Rights Commission, the Commission to Investigate Allegations of Bribery or Corruption (per the said draft Bill is to be given suo motu powers), the Finance Commission, and the Delimitation Commission.
The Parliamentary Council is to be replaced by a Constitutional Council including in addition to the Premier, the Speaker (Chairperson of the Constitutional Council) and the Opposition Leader, a MP appointed by the President, two MPs and three non-MPs nominated by the Premier and the Opposition Leader, and a MP nominated by majority Parliamentary consensus but one who does not belong to the parties to which the Premier and the Opposition Leader belong to. Additionally, when nominating the aforementioned two MPs and three non-MPs, the Premier and the Opposition Leader have to consult the leaders of political parties represented in the Parliament, so as to ensure that the Constitutional Council reflects the pluralistic character, professional and social diversity in the society. Also, the three non-MPs should be persons of eminence and integrity who have distinguished themselves in public or professional life, and who are not members of any political party whose nomination can be approved by the Parliament.
Moreover, the Constitutional Council is vested with the power to recommend appointments, and sans such recommendations from the Constitutional Council of fit and proper persons, the President cannot appoint any Chair or Member of a Commission. Here too, the Constitutional Council should endeavour in their recommendations to reflect the pluralistic character including gender within the society. All removals of Members of Commissions can only be done per the law and in the absence of such, the approval of the Constitutional Council.
The Commissions that have been added anew in the draft Bill include the Audit Service Commission (to be comprised of the AG who is also the Chair, two officers of the AG’s Department who retired as Deputy AGs or above, a retired SC, CoA or High Court Judge, and a retired Class I Administrative Service officer) and the National Procurement Commission (to formulate fair, equitable, transparent, competitive and cost effective procedures and guidelines, for the procurement of goods and services, works, consultancy services and information systems by Government institutions).
The additional apex appointments to be made concerning which the Constitutional Council is to be empowered under the said draft Bill include the Governor of the Central Bank. Furthermore, the Constitutional Council is to obtain the CJ’s views concerning the recommendations for Judges of the SC and CoA including the CoA’s President.
It has also been provided for the Constitutional Council’s decisions to be challenged on Fundamental Rights (FR) related grounds.
It is hereby recommended that the Constitutional Council’s composition be changed to include a 50:50 ratio of MPs to non-MPs, with five MPs and five non-MPs, with the process for the appointment of the non-MPs being the same as that which is proposed for the appointment of two MPs and three non-MPs, with the Premier and the Opposition Leader together consulting the Parliament and reflecting the pluralistic character, professional and social diversity in the society. Since enacting and implementing this recommendation would involve the reduction of two MPs from the Constitutional Council, the MPs that remain can be the Premier, the Speaker (Chairperson of the Constitutional Council), the Opposition Leader, a MP appointed by the President, and a MP nominated by majority Parliamentary consensus but one who is not affiliated to the parties to which the Premier and the Opposition Leader belong to.
Importantly, the Constitutional Council should, at the outset of commencing work on its mandate, specify objective criteria that is to be adopted when vetting nominations and approving recommendations of persons to be appointed to the said Commissions and apex positions, and publish such officially.
Also, it is echoed herewith, as recommended by the private and unofficial bar (the Bar Association), that the Constitutional Council also approve of the appointment of the rest of the Members of the Monetary Board, the latter which is Chaired by the Central Bank Governor.
The Bar Association has also called for the said draft Bill to provide for the appointment of Ministry Secretaries, Provincial Governors and heads of overseas diplomatic missions to be done on the advice of the Premier in consultation with the Cabinet. It is hereby recommended that the Constitutional Council plays its mandated role also with regard to the appointment of heads of overseas diplomatic missions and President’s Counsels.
At present, there is an absence of legislative safeguards against the kind of court packing (refer to the Judicial Procedures Reform Bill of 1937 of ‘New Deal’ United States [US] President Franklin D. Roosevelt) taking place on Presidential prerogative, that involves manipulating the people’s and the Parliament’s sovereignty by creating a Judiciary that is in the President’s own ideological persuasion; this must be Constitutionally remedied.
Ministries, subjects and functions
The draft Bill proposes to amend the provision that states that with regard to the appointment and the changing of the Cabinet and its subjects and functions, the President only needs to consult the Premier where he/she considers such consultation necessary, by instead making it mandatory for the President to do so on the advice of the Premier with regard to all Ministers – Cabinet and non-Cabinet (Deputy and State) – and their subjects and functions.
Also, the draft Bill proposes to delete the provision which holds that the removal of the Prime Minister from office is a ground for the dissolution of the Cabinet in the interim period between the dissolution of the Parliament and the conclusion of a General Election.
However, the President still retains the power to assign to himself any Ministerial subject or function. This should be done away with.
The President also has the power to dissolve the Parliament two and a half years after the General Election. This should only be permitted four and a half years following the Parliamentary Election as was the case under the 19th Amendment to the Constitution, unless the Parliament by majority, requests the same prior to the lapse of the said period.
Presidential pardon: Recommendations
With regard to the Presidential power to grant a pardon, it is also recommended hereby that special legal rules and guidelines be formulated to govern the exercise of the power of pardon by the Executive President in order to ensure that it is exercised in a transparent and accountable manner, and following publicly disclosed, specified, objective criteria, while duly recognizing the rights of victims.
The draft Bill proposes to make being a Sri Lankan citizen who holds citizenship in any other country disqualified from being elected as a MP. This is vital considering the havoc that an “ugly American (a euphemism for former Finance Minister cum Sri Lanka-US dual citizen Basil Rajapaksa)” wreaked. In a departure from the norm (rule against enacting retrospective and retroactive laws) necessitated by dire national circumstances (the need to clip calamity’s wings), it is hereby recommended that a clause be inserted making this have a retrospective application and retroactive effect, thereby relegating the said Rajapaksa to a status of un-eminence grise.
While the opportunity for politico-legal reform that has presented itself, may not, given the present political volatility, be conducive to undo every wrong visited upon the body politic by the Second Republican Constitution of 1978, the Legislature should however, seriously consider the repeal of Article 16 of the Constitution which provides for all existing written and unwritten law to remain valid and operative notwithstanding any inconsistency with the provisions of Chapter III of the Constitution on FR, and by doing so, pave the way for the SC to follow in the path of the US SC in Marbury vs. Madison (post-enactment judicial review), and provide therefore for equality and non-discrimination to not just be relegated to the shadowy liabilities of the black letter of the law but for such to be tangible assets possessed by the disenfranchised.
The draft of the 21st Amendment to the Constitution Bill is a start; it is certainly not an end. There is much to be added to its text to ensure that the pith and substance of its intent, which is the transfer of some of the excessive and arbitrary powers of the Executive Presidential system to a more democratic framework of the Parliament and the Constitutional Council, whilst maintaining a system of checks and balances on both arms of governance – the Executive and Legislative branches, comes to fruition.
In theory, vesting the powers of the Executive Presidency – particularly one that is ‘booster-ed’ (to use a Covid-19 pandemic related metaphor) by the 20th Amendment to the Constitution, and which, as the local Founder of the system, late President J.R. Jayewardene quipped, only cannot perform a sex change – with the Parliament, is certainly democratic, if not particularly progressive, as it is obvious to all but a few despots in waiting and in training for the role. However, Parliamentary supremacy, especially in the absence of simple legislative changes such as the power of post-enactment judicial review being afforded to the Judicial arm of governance (the Judiciary), the option of recall elections afforded to the electorate, measures related to dealing with crossovers and defections, and the abuse of the national list being put in place, and campaign finance reforms being effected, comes with its own pitfalls which if the state of affairs of Parliaments as far back as the mind can recall is any indication, and this is true also of the incumbent 17th Parliament, would result in a deleterious, albeit somewhat pernicious, impact, that would, with time, be wholly inimical to the people’s sovereignty and the interests of democratic governance.
This is the question to be pondered when taking into consideration the draft Constitutional Amendment Bill proposed to the House.
Perfecting the important.