Facts, features and fiction behind the proposed 20A

There is no universally accepted format or stereotype model of an ideal constitution. It will depend on the prevailing forces or powers at the time of its establishment or amendment  – Pic by Shehan Gunasekara

20A is a stale subject. But now it has become a much discussed hot topic. For many legislators in the Parliament it was a scapegoat. 

Having voted with both hands (not the sound voting enunciated by the former speaker Karu J.) for the now much disputed 19A, they all rationalised their stand by projecting an impending further amendment which never saw the light of day. For the masterminds who hoodwinked them it was a great achievement though the outcome was an incredible state of affairs becoming too bizarre before long. 

The scenario we are witnessing currently is full of fantasies created by the weird and feverish imaginations. We are hence compelled to carefully examine this matter with a degree of selflessness and clarity.

History of 19A

The birth of 19A extends to the ‘Good Governance’ claim that was heavily canvassed during the 2015 January Presidential Election. There were several unseen forces influencing the process unnoticed by many. Most of the sources of origin of such influence extended beyond our shores. The main being the neo-liberal precept that has been haunting behind the much canvassed regime change based on the volatile and elusive culture and environment created by the former Government. 

The most obvious necessitation was the elimination of the adversities caused by the 18th Amendment. The ostensible facade was the attributed safeguarding of the democracy and establishment of good governance which by then had become a buzzword associated with aid grants and assistance towards development. The concepts went deep into areas commonly hailed by the democratic polity in their desire to protect and promote human and civil rights in a background of non-corrupt and accountable administration. 

Certain amendments in 18A made during the ‘Rajapaksa regime’ contributed in a very big way to inculcate the ostensible democratisation process advocated by the Good Governance regime such as the repeal of Article 31(2), viz. “no person who has been twice elected to the office of President by the People shall be qualified thereafter to be elected to such office by the People.” 

There is no dispute that it was a totally unacceptable move to incorporate such a lamentable section into any modern constitution, according to any decent democratic norm. Hence it became essential to repeal it. But many other provisions introduced along with its repeal caused much consternation and confusion creating an impression that the opportunity to rectify it was misused in an indecent and immodest sense. Today’s confusion is the net result of this trickery deed. Under Article 120, it is the Supreme Court that has the sole and exclusive jurisdiction to determine any question as to whether any bill or any provision thereof is inconsistent with the constitution. It is interesting to note how the Supreme Court viewed the Bill that was presented invoking the jurisdiction of the SC in terms of Article 121(1) for a determination in respect of the bill titled ‘An act to amend the constitution… – 19th Amendment to the constitution’. The Supreme Court gave hearing to 13 petitioners and intervenient parties at the sittings held commencing 1st April 2015.The proposed 19th Amendment sought to amend the following;

1. Inclusion of a Right to Information,

2. Reducing the term of office of the President,

3. Limiting the number of terms a person can hold office as President to two terms,

4. Provision for an acting President in the event of death/absence of the incumbent,

5. Imposition of additional duties on the President

6. Effective numbering of Article 42 as Article 33A

7. The circumstances in which Presidential immunity will not apply

8. Period within which an election shall be held if an election is determined to be void

9. To introduce the Constitutional council again

10. Changes made to Chapter viii with regard to matters concerning the Executive, the Cabinet, Number    of Ministers and their appointment

11. To reduce the Term of parliament

12. Provisions relating to prorogation of Parliament

13. The Jurisdiction of the SC relating to disciplinary actions against MPs

14. Removal of the provisions relating to urgent bills

15. Provisions relating to Independent Commissions

16. Special provisions applicable to incumbent President

According to Article 120(a) the only question which the SC may determine in a Bill presented to the SC is whether such Bill requires approval by the People at a Referendum under the provisions of Article 83. This Article specifically refer to the limitations of the powers of the parliament to amend, repeal or the replacement of or inconsistent with the provisions of Articles 1, 2, 3, 6, 7, 8, 9, 10 and 11 and any bill for the amendment or for the repeal and replacement of or which is inconsistent with the provisions in the constitution including any which would extend the term of office of the President or the duration of the Parliament. 

Such amendments shall become Law only if the number of votes cast in favour amounts to not less than two-thirds of the whole number of Members (including those not present), is approved by the People at a Referendum. Accordingly it would be seen that the mandated legislature to make constitutional amendments affecting Article 83 goes beyond the authority of the Parliament extending as a right of the People. This right is further elaborated in Article 4, which states, “the sovereignty of the People shall be exercised and enjoyed in the following manner: 

Inter-alia 

(a) The Legislative power of the People shall be exercised by parliament, consisting of elected representatives of the People and by the People at a Referendum;

The Article, under (b), (c), (d) and (e) elaborates further how the Executive power ,Judicial Power of the People and the Fundamental rights and the Franchise are exercised.

Article 4(b) more fully address how the executive power of the People including the Defence of Sri Lanka shall be exercised by the President of the Republic elected by the People.

In the context it is interesting to revert to the proposals first made in the Bill referred to the SC for determination before the 19th Amendment to the Constitution. In the final determination the Supreme Court held inter-alia, “that paragraphs 42(3),43(1),43(3),44(2),44(3)and 44(5) in clause 11 and Paragraph 104B(5)© in clause 26 require the approval of the People at a Referendum in terms of the provisions of Article 83 of the Constitution.”

Examination of the paragraphs mentioned it becomes clear that, in the proposal for amendments under Clause 11 dealing with “The Executive – The Cabinet of Ministers”, it was sought that the Prime Minister be empowered to exercise the powers without any delegated authority from the President. It is relevant to consider the following excerpts from the SC judgement records in this regard.

“In the absence of any delegated authority from the President, if the Prime Minister seeks to exercise the powers referred to in the aforesaid clause, then the Prime Minister would be exercising such powers which are reposed by the People to be exercised by the Executive, namely, the President and not the Prime Minister from below and does not in fact constitute a power coming from the above, from the president.” 

“By virtue of the Executive power vested in the President, as guaranteed in Article 4(b) of the Constitution, certain rights flow to the citizens enabling them to enjoy those rights in its fullest measure, subject of course to permissible restrictions. The President cannot relinquish his Executive power and permit it to be exercised by another body or person without his express permission or delegated authority…”

How the Parliament dealt with these observations and the ruling by SC has to be re-examined by those now claiming to amend/repeal/replace the 19A. What was publicly aired about the 19A after its adoption appeared to be abstruse and abstract. We were given an impression that the powers of the President have been reduced and more powers vested in the Prime Minister and the Parliament. Can it be or could it have been so, under the above pronouncements?

Some of the hilarious events and happenings further confound the public conjectures on the subject. The president himself having to seek the views of the Courts subsequently about the length of his term in office and the vociferous promulgations of the very parliamentarians who supported the passage of 19A without any resistance (except one) then! 

The adverse effects of certain provisions following the changes in the powers of the President such as the inability for the President to hold any ministry portfolio in the cabinet and the changes effected in the provisions for removal and appointment of ministers, etc. are reasons for speculation and bewilderment. Any new changes should therefore be addressed with great concern.

Public interest and anxiety

It is no secret that with slight changes in the wordings or presentation it is not impossible to seemingly and outwardly make things appear to conform to requirements. But in essence what is important is how best it serves the genuine public interest and to what degree the rights and privileges legally enshrined to safeguard the People’s Sovereignty are protected without dilution.  Power should in the ultimate sense be with the People in whom sovereignty is reposed. This inalienable sovereignty of the people which the People reposed on the President in trust cannot be exercised by any other without the authority of the President. If that happens it would necessarily affect the sovereignty of the People. 

In the determination by Courts on the 19A, it was clearly stated that transfer, relinquishment or removal of a power from one organ of government to another would be inconsistent with Article 3 read with Article 4 of the constitution. People therefore expect the legislators to act with great restraint and diligence in effecting changes to the 19A bearing in mind the need to rectify matters in the interest of the future of the country. 

It is essential to give proper and adequate publicity about the full details of the proposals to the People. Parliament should not act unilaterally disregarding public opinion in matters like this. In this exercise there should not be any compromising of the national sovereignty and the inalienable rights of the People and the country to determine their political economic, social and cultural systems. 

General

The Right to Information enshrined in the Constitution under the 19A is a very good example to be cited. It should be reviewed in the context of its administration. Instead of becoming a vehicle for the people’s participation in Governance to ensure corruption free society and a need to foster a culture of transparency and accountability in public authorities it has led to a situation where the information seekers are driven away with no encouragement. 

Invariably the public authorities are finding excuses and ruses to avoid parting with the information sought mainly due to the fear of exposure of their misdeeds. The noble role and expectation of promotion of a society in which the people would be able to more fully participate in public life combating corruption and promoting accountability and good governance is in most cases becoming a distant hope. More cases end up in appeal wasting years of litigation which the information seekers cannot afford. 

The public authorities ironically spend huge sums of public monies in defending their crimes. The affordability is no issue for the public authorities as they have the liberty and freedom to hire highly paid lawyers at a cost to the institution. A mere enactment or granting of a right does not become a meaningful means to achieve the objectives without a proper administration. Lawmakers also should address the administration of justice as an equally important measure.

There is no universally accepted format or stereotype model of an ideal constitution. It will depend on the prevailing forces or powers at the time of its establishment or amendment. Considerations based on practical convenience and common sense will also contribute. More importantly the guidance of advisers who play a role in drafting and the existence of past precedence will be the factors that influence the politicising in the process. Once established and accepted as written law they become the fundamental law of the land which will be superior in the hierarchy among other laws. They cannot be changed or amended except under the stipulated procedures prescribed.

Let us hope for the best!