By Mahinda Pathirana –

Mahinda Pathirana

22^nd amendment to the constitution was approved by the parliament on 21^st October 2022, with 179 for, 1 against and more than 40 Members of Parliament abstaining. Modelled on the controversial 19^th Amendment, enacted in 2015 following the victory of President Maithrepala Sirisena, 22A is substantially not different from the former in its outlook and purpose, except some restrictions imposed by the Supreme Court on curtailing the powers of the executive. In marked contrast to the view of the Supreme Court back in 2015, this time the highest court seemed to have acted more rationally while determining bill’s constitutionality regarding the presidential powers delegated by the people. 

The objective of introducing both 19^th and 22^nd amendments to the constitution was limiting or restraining presidential powers, assigned to it by 78 constitution, while purportedly delegating such powers to the parliament. In order achieve this mission, both amendments proposed to set up a constitutional council (CC), comprising members of parliament and those of civil society, appointed by the speaker. In that sense, it is not delegating power to the parliament, rather to a committee, comprising also of non-parliamentarian.  This extra parliamentary council is created in a way that lies between the legislature and the executive, and acting as intermediary between the two organs. 

At the very outset, it should be highlighted that the name “constitutional council” itself is misleading in terms of its mandate. We find constitutional councils attached to constitutions of several countries in the world. For example, in France, such a council is operational since 1958, with the advent of so called fifth Republic in that country. We have similar mechanisms in the same name in the republic of Camaroon and Cambodia too. Objective and purpose of all these constitutional councils are completely different from that of what the CC here in Sri Lanka proposes. They play the role of what the supreme court of Sri Lanka does i.e interpreting the constitution, when demanded to do so and settling legal disputes between the government and the legislature. No constitutional council interfere with the executive to perform petty things such as appointing commissions etc, as the CC of Sri Lanka does.  So the basic idea of thinking behind this mechanism is fundamentally flawed.  

Having said so, let us now go onto principal discrepancies that the piece of law create. The main issue with the council is its role in distorting the doctrine of separation of power between the executive and the legislature. In adhering to the doctrine of separation of power, authors of constitutions anywhere in the world seeks to smartly separate powers assigned to it from the other, so that each pillar of democracy can discharge its duty without being unnecessarily hindered by the other. In the 78 constitution too, this rule has been reverently followed and has been in existence up to the adoptions 20^th Amendment in 2020, with the exception of the principle being briefly disrupted by the 19a. Even the 13^th Amendment, which introduced provincial council by devolving power to the periphery did not want to disturb the equilibrium. This doctrine is closely followed by framers of constitutions, for the violation of the same can create a constitutional deadlock or impasse. Such a deadlock leads to a constitutional crisis. 

This is exactly what happened in Sri Lanka, after the adoption of 19^th Amendment in 2015. The amendment swiftly put the President Sirisena and Prime Minister Wickramasinghe on a collision course, culminating in former sacking the latter following a series of ugly political battles. The reason for such a debacle is that both leaders seemed to have claimed the executive powers in governing the country. As well-known German philosopher correctly put it, the will to power is an inherent quality of beings, including that of human. Triggered by this inclination, the President and Prime Minister tended to run two parallel governments in one, pitting one against other. The dire consequences were to be borne by the people in this duo. In the backdrop of attempt to consolidating power by one party over the other, the victim was the smooth functioning of the governance. The economy took the highest toll, growth rate taking a nose dive, had fallen from a rate of 5.01% in 2015 to as low as 2% by the 2019. The lackluster growth rate could clearly be traced back to the economic crisis that the country is in today, with the economy being unable to cushion the shocks created by the pandemic. 

While economy was suffering for the want of political stability and coherent economic policy, the sphere of national defense was already in disarray, again due to the split of state into two factions, giving no one definite responsibility of the vital area. Security forces, including the police and intelligent agencies were at a loss getting guidance, direction and command from neither faction of the government. The crisis gradually seeped down into all relevant sections of the security machinery. The uncertainty that prevailed among the security apparatus gave extremists and other anti-state elements the opportunity to plan and execute any kind of attack in the country. The result was the unfortunate death of some 250 people in the so called Easter Sunday suicide attack by Islamic terror in the month of April, 2019. The commission set up to investigate the attack heard that, there have been more than 95 warnings by various intelligence agencies local and foreign, the latest such warning being just 10 before the attack by a famous intelligence wing in a neighboring country. No warnings were heeded and taken note of. All those in the highest positions of the government and security passed the blame on the other. 

Such are the direct consequences of so called democratic reforms introduced by the 19^th Amendment. The total opportunity cost of this constitutional blunder could only be ascertained by taking stock of economic stagnation during the period from 2015 to 2019, complete loss of Tourism industry following the Easter Attack, depriving the country billions in dollars and the loss of livelihood for some 2 million people.

Coming back to the 22^nd Amendment, the Supreme Court has, this time, decided to deviate itself from the position it took back in 2015. Apparently they were of the view that, by diluting the powers of the executive vis a vis the PM, the country could have once again fallen back to the constitutional crisis as in 2019, prompting the intervention of the apex court. So they were kind of acting in practical sense of the operation of the constitution in their determination on 22A. In line with that sense of pragmatics, the court changed the proposed wording of bill of 22A with regard to appointing ministers and deputy ministers from “on the advice of prime minister” to “in consultation with prime minister where it deemed necessary” giving the President his choice. The Supreme Court also held that the President can dismiss the Prime Minister at his will, implicitly ruling that power as an essential part of the executive. 

The court also intervened to dilute the powers of the constitutional council by not making it mandatory for the President to make appointment to independent commissions upon the recommendation of the CC. In other words, the President can delay or withhold making such appointments indefinitely. According to the original bill of the 22a, as was also found in the 19^th Amendment, if the President does not appoint persons recommended by the CC within the stipulated period, appointments would be deemed to have been made. The court ruled that all the above changes require a special majority and the approval of people at a referendum.  

It is commendable that, the Supreme Court, restoring the powers of the executive back to its former glory, has once again been conscious of the foundational value of our constitution that the “sovereignty is in the people and is inalienable” (article 3 of the constitution). 

Counter argument to the SC determination on “inalienable power of the people delegated to the President” is that, even if the decision to appoint Ministers or members to independent commissions are made by the Prime Minister and the Constitutional council respectively, the final act of making appointment is made by the President, suggesting that the power of people enshrined in the executive is not taken away from him. There is a serious problem with this line of reasoning.  It is an act of deception of people’s power. One does not need rocket science to understand the fact that the sovereignty of people delegated to the President goes far beyond the mere act of putting the signature and rubber stamping by the President. 

In spite of all the changes made to the original bill of 22A in the right direction through the judicial review, one should not forget the fact the restriction imposed by the SC on curtailing presidential power is like a suspended sentence by a court of law. Even if one does not serve the sentence in a prison, s/he is made to be seen as a convict. Thinking along the same line, the appointments recommended by the CC are seen as proper ones by the society, even if they are actually not, in contrast to the persons chosen by the President at his own discretion. In that case, society will polarize along the lines of administration of the commissions, making these institutions looking untrustworthy to the people.   

Moreover, not complying with the recommendation of the CC in making appointments could lead to a conflict between the President and the Parliament. The mutual trust between the two organs is lost and fighting follows. Not long ago that the former President Sirisena accused the CC of his times under the 19A of neglecting the concerns of the executive. He further said that this state of affairs escalated to a conflict between the legislature and the executive. The same thing could happen in a new round with non-compliance with the recommendation of the CC. 

All in all, the functions of the constitutional council, set up in between the legislature and the executive, is very much prone to become the Trojan horse disrupting the smooth functioning of both institutions from inside. It is not the romanticized rhetoric of democracy as suggested by MPs during the debate on the bill.  Weather the President honor or dishonor CCs recommendations is immaterial. In both cases, the conflict could become the rule of the day. 

The only exit route out of the impending crisis lies in totally doing away with the existing constitution, not tinkering with it. We can think about whether we retain the presidential system or go for a parliamentary system. The danger in tinkering with the existing constitution, introduced in1978 is due its design being fundamentally a presidential system. It is framed in a way that executive, elected directly by the people has power of execution of operation of the government. The other two organs are created to support the executive and hold it check. By trying to weaken the executive is hampering the proper discharge of presidential discretion. It will only distort the system and lead to unintended consequence.,  

 *Mahinda Pathirana, Chairmen, Sri Lanka Press Council