By Rajiva Wijesingha –
Productive day in Parliament, with the first reading of two amendments to the Constitution that I had proposed, seconded by Upeksha Swarnamali. The 24th, which is the more important I think, is about making Secretaries to Ministries Permanent, and restoring their appointment to the Public Service Commission. I hope that all those who are keen on independent commissions will accept that these will have no teeth if the most important appointments in the Public Service are left in the hands of the Executive.
The other amendment, the 23rd, is to fulfil the pledge in the Presidential manifesto to introduce an electoral system that ensures individual representation for constituencies but makes the whole of Parliament proportionate to the will of the people. I cannot understand why we are making such a meal of this particular reform, since the text as gazetted indicates how simple it is to ensure this. The only question is the number of constituencies, and since the election Commissioner said that 125 would be hard to define, I have suggested that the first election under this system could be for 150 constituencies. He said that reducing the current number to this would not take him more than three months.
I can only hope that, now that these are before Parliament, they will be discussed more widely. To go for an election on the present system would be disastrous, since we would once again have a Parliament elected on a system that privileges money and strong arm tactics.
Before I presented the Amendments however there was a long discussion on the Supreme Court ruling regarding the 19th Amendment. That is excellent and well presented, but from something Ranil presented, I fear that there will be further sleight of hand. The Supreme Court, rightly, looked only at the gazetted version, and did not comment about the amendments that had been virtually smuggled in, contrary to the consensus at the Party Leaders Meeting on March 15th. But they did refer to one amendment which helped to overcome one of the objections raised to the gzetted draft. Ranil used this to suggest that those amendments had also been subjected to the scrutiny of the court.
This was emphatically not the case, and in fact the only other suggested amendment they mentioned in the judgment was another the Attorney General said would be brought in at Committee stage. In fact the text cited is nonsensical, so I hope that the actual amendment to be introduced is drafted more carefully.
But the real danger is that Ranil will try to claim that the smuggled in amendment to the newly introduced 33A has been approved by the Court. This is a very substantial amendment, which requires the President to always act on the advice of the Prime Minister.
This provision had been in the original draft but had been removed after it was objected to by everyone at the meeting on March 15th who spoke, except for Ranil. It was then that he said that he would complain to President Kumaratunga. He denied in Parliament that he had complained, but he could not deny his plaintive threat to go and tell mummy that the other children were depriving him of his toys.
That clause then was removed from the gazetted draft, though Jayampathy Wickremaratne allowed the even more offending provisions, that the Prime Minister should head the Cabinet and decide on Ministries, to remain. He claimed that this was a mistake, and it was human to err.
That so-called human error was struck down by the Supreme Court, but it did not comment on the smuggled in 33A. However the judgment does say very clearly that ‘If the people have conferred such power on the President, it must be either exercised by the President directly or someone who derives authority from the President….If the inalienable sovereignty of the people which they reposed on the President is trust is exercised by any other agency or instrument who do not have any authority from the President, then such exercise would necessarily affect the sovereignty of the People. It is in this backdrop the Court in the Nineteenth Amendment Determination came to a conclusion that the transfer, relinquishment of removal of a power attributed to one organ of government to another organ or body would be inconsistent with Article 3 read with Article 4 of the Constitution. Though Article 4 provides the form and manner of exercise of the sovereignty of the people, the ultimate act or decision of his executive functions must be retained by the President. So long as the President remains the Head of the Executive, the exercise of his powers remain supreme of sovereign in the executive field and others to whom such power is given must derive the authority from the President or exercise the Executive power vested in the President as a delegation of the President.’
This makes it clear enough that subordinating the decision making power of the President to the advice of the Prime Minister is unacceptable. But Ranil tried to skate over this, and talked about his usurpation of powers not applying to the currently elected President. However the draft makes clear that the President loses much residual authority after the next General Election.
But we cannot leave such important issues to the subterfuges Ranil will employ. I hope it will be possible for the matter to be canvassed in the Court, which should be asked to rule on whether the smuggled in 33A can be passed without a referendum. The wording of the judgment, as quoted above, makes clear that there can be no such derogation of power. But it may be best to get a clear ruling from the Court if possible, otherwise the Amendment may well be smuggled in to Parliament.
It was agreed at the meeting to decide on when the Bill would be taken up that only the gazetted version could be voted on at the 2nd reading, which is standard practice. I suspect there will be a lot of amendments, including my own, which will try to introduce specific Cabinet portfolios. But it will be necessary to discuss these at length, and also to disallow anything that contradicts the very clear opinion of the Court regarding the continuing Executive authority of the President.