By Savitri Goonesekere –
Excellencies of the diplomatic community, Mr Abeykoon, Secretary to the President, officials of the Presidential Secretariat, ladies and gentleman,
It may sound as if I am repeating what has already been said when I say that I share the sentiments expressed by both Mr. Dhanapala and Prof. Munasinghe. To me, as a citizen, the 19th Amendment brings new beginnings. I say that because, sometimes we suffer in this country from a collective sense of amnesia. We also know that this country has many good laws. But our problem is that even when we have the law in the books and we do not implement it. However when we look at the 1978 constitution we note the fact that law was not in place because we had many restriction on the democratic process and it was a law that needed to be changed. It was distressing to see the debate on the 19th amendment and I think that is why I said we have a collective sense of amnesia, because we know as citizens what happened and how the constitution is interpreted and particularly through the 18th amendment how we saw how a government which had come into power with massive peoples power eventually dismantled democracy. It was distressing to see in parliament what should have gone through with absolute consensus, as an opportunity for democracy had to be negotiated in a process that in my view, undermined some of the opportunities for Constitution making. As a lawyer I have to say that the 19th amendment is a reflection of new beginnings, but as a lawyer I want something more, I want for this country fundamental constitutional change and constitution making because that is a challenge of a country that has emerged from a period of armed conflict. That has been the experience of nations. A new constitution in a participatory consultative environment which is not top down, can address the need to heal wounds, and to really make for fresh beginnings. And I certainly hope therefore, as a citizen of this country, every single party that is seeking our votes will come forward with an agenda of complete constitutional reform. Having said that I also recognize the difficulties of doing that in the kind of adversarial political environment that we have. And it is therefore in that context that we have to see the 19th amendment, as Dr. Jayantha Dhanapala said, as creating the opportunities for democratic culture and for addressing the democratic deficit that we have seen in this country. It is that context that I would like to make a few comments to add to what has been said by the other speakers.
The first point is that this amendment provides us with an opportunity to connect the whole development process and the discourse on development with a human rights based approach. That focus has not been there in the past. And the strengthening of the democratic deficit comes with the idea that here you have a concept of the people’s sovereignty and of people’s rights. We talk people’s sovereignty but we didn’t talk people’s rights. The 19th amendment connects the concept of people’s sovereignty and people’s rights through establishment of some of the key norms of democratic governance associated with the democratic process. And I think this is very important because it provides a vision for development where there will be public accountability and scrutiny of development processes. Hopefully, the process of achieving development goals will also be based on the need to really address the issue of people’s rights. And this is why the restraints on presidential power are key. The concept of presidential power has been enshrined in this article because there was so much controversy. People were feeling that they have to have an executive presidency, if you don’t have executive presidency with power, you have a diminished national security. Even though President Sirisena says “I have given up power,” the constitution gives him power. He is: Head of State, Head of the executive, Head of the Cabinet, Commander in Chief, all of it. What about the scope and substance of the power? There are limitations that encourage responsible use of these powers. The limited term is as crucial to accountable governance. There are other provisions which have been built in here which take away that concept of an unaccountable strong executive. And so you have a new provision for instance, apart from the old provisions, of the concept of duties of the President. Duties were not specified anywhere in the constitution. The duty to respect the constitution, the duty and the duty to ensure that the constitution is respect, the duty to promote national reconciliation and ensure proper functioning of the constitutional council and to ensure that the elections commission would function in such a way as to ensure the creation of proper conditions for the conduct of free and fair elections. I think these statements of duties are very important, and not very symbolic. They give a process for questioning the exercise of power and ensuring some accountability. I am not sure the provision in the amendment that he cannot dissolve parliament up to four years is a good provision. It is, perhaps, a protection from the reality that Sri Lanka has experienced where parliament has been dissolved arbitrarily. We are a country with a history of a strong and accountable judicial system. And what we have witnessed over the years is political interfearance that has contributed to a lack of public confidence in the independence of the judiciary. The 19th amendment addresses the crisis of confidence.
The President’s powers of appointment are limited by the setting up of the constitutional council and various other provisions. And in the very appointment of the judges of the Supreme Court and the Court of Appeal there’s a procedure for consultation. Now this was actually argued out in a case where under the former constitution also it was argued that there was a duty of consultation with the Chief Justice. This has now been put into the constitution. So there is that concept of the Chief Justice having a voice. However one of the limitations in the 19th Amendment is that it has not addressed very unfortunately the critical issue of the removal of judges of the Supreme Court. I see that this is an omission. There is no change in the provisions for removal of Chief Justice and as many of you know these were extremely controversial during the time of the impeachment of Chief Justice Bandaranayke. The constitution council provisions are also important because they create independent commissions and as you have heard there are several of those in key areas of administration. The constitutional council also becomes an institution responsible for the key high posts in this country. And most importantly even the constitutional council has a very good provision which gives guidelines of whom they should appoint. It is incorporated in the constitution. For example it states, that they must appoint people by taking into account the pluralistic character of Sri Lankan society including gender. That’s perhaps the first time the constitution has referred to the concept of gender and this is extremely important because it is a guideline to the constitutional council on its responsibilities. The decisions of the constitutional council are backed by a provision which says they cannot be challenged by court of law, except for violation of fundamental rights. In this context it is interesting that there is also a reference to respect for pluralism and gender in the guidelines for the commission.
With regard to fundamental rights, references have already been made to the inclusion of a right to information, the jurisprudence of this country incorporated a right to information through the right to freedom of expression and speech but here is a specific reference to the right to information and this is a important. It has taken Parliament a long time to legislate in this area and now the constitution gives a clear mandate to introduce the legislators reorganizing that the right to information is essential to the democratic process. However the focus is essentially here on state accountability and there is no reference to private, non- state actors who are playing an increased role in public services like health and education. On independent commission there is an interesting new clause which provides legislature to establish a new bribery commission which will replace the old commission. And the guidelines and mandate for that commission are set in a very specific way and this is also very interesting because one of the specific provisions is that the in taking legislation will also have to incorporate the standards set internationally on preventing corruption. And specifically there’s a mention of the international standards and international conventions. That’s very unusual in this country because we have no reference in the constitution to any other international standard. In fact, there is no provision with regard to treaties in the constitution or a specific provision to cover the President’s powers with regard to treaties. However the provision on the Bribery commission introduces that international standard. And that hopefully will create an environment and a context later for the understanding the importance of international standards in the process of governance and can become even a guideline to the judiciary in trying to harmonize international and national law.
The cabinet and the executive again try to address the issue of jumbo cabinets which are all concerned about. The provisions are fairly generous and they also might eventually lead to a semi jumbo cabinet hopefully depending on the numbers that are being restricted. There is also the constitutional incorporation of cabinet and state ministers, and as a citizen, that is something I question. Why do we need the concept of cabinet ministers, state ministers and deputy ministers. And as citizens we can ask whether this does not discourage political patronage. Do we need that? As Professor Mohan Munasinghe said this Buddhist text as incorporated at the end of our Constitution “May the rains fall in season, may there be a good harvest and may the ruler be righteous” comes from a Buddhist text. If we interpret righteousness in the context of modern language we could say that righteousness is protecting the rights of the people. I believe that text incorporates that concept. Protecting the rights of the people which ultimately amounts to accountable good governance in the interest of the people. Our politicians lose sight of the fact that the concept of rights and the human right based approach to development is of the essence of the wellbeing of the people. And the essence of making rulers accountable to the people. If we achieve this goal and if we walk towards that goal through the 19th amendment and hopefully we can create a consensus on the need for new constitution making based on those values integrating the best of national norms with the international. If we achieve such a consensus, I think the future of this country, one could say, has begun with the 19th amendment.
*Prof. Savitri Goonesekere made this speech at “19 A: Landmark of Democratic Revival” a panel discussion and Q & A for the diplomatic community of Sri Lanka on the 19th Amendment on June 16, 2015, 4pm at Jaic Hilton. The transcript of the speech was provided by the President’s Media Division.