It’s still not too late to clean up the 19th Amendment

Friday, 17 April 2015 03:37 - - {{hitsCtrl.values.hits}}

Now that the Supreme Court has ruled on the gazetted draft of the 19th Amendment along with the proposed amendments to the amendment, some may believe that a simple up-or-down vote is all that remains. I hope not. I am not proposing any substantive changes at this late hour. It is just that the language should be pruned and made to look like it belongs in a Constitution, rather than the mishmash it is now. The text is testimony to the pathetic state of legislative drafting in Sri Lanka. But we cannot blame only the drafters. Politicians in charge have exhibited poor judgment by proposing to include in the Constitution what rightly belongs in ordinary legislation. The Constitution is the Supreme Law. It is rigid. If not, we would not call it the Supreme Law. The Constitution of Sri Lanka cannot be easily amended as we have seen: in some cases a majority of two-thirds of MPs is required; in others, a referendum is required in addition. Laws can be approved or amended with simple majorities, but getting a new law through Parliament takes effort. The Right to Information bill illustrates the point. It never made it to the Order Paper in 2003 and 2010. We hope it will in 2015. For that reason, good lawyers do not stuff all the little details into laws. They use regulations or subsidiary legislation, the most flexible instruments, for that. Laws are like buildings. They need a lot of prior thought and planning. Once a building has been constructed, it is costly to modify it. It is the

same with law. It is best to engage in a lot of consultation and careful drafting in order to get it right the first time. This is even more important when the law in question is the Constitution, where the analogy is not to a building, but to a hardened bunker. The costs of amendment in the future are prohibitive. The 19th Amendment as it now stands is a verbose and inelegant document that includes abstract structural elements that belong in a Constitution and also a lot of provisions that are more appropriate for normal legislation. The discussion below is limited to the provisions pertaining to the Right to Information and Chapter VIIA onward which establish the Constitutional Council and the various independent Commissions. The argument applies to all provisions proposed for inclusion in the Constitution. What belongs in the Constitution Provisions constituting the Constitutional Council and defining its functions belong in the Constitution. The Council is a crucial constraint on the President’s power. It was so crucial that President Rajapaksa got rid of it through the 18th Amendment. Like everything else, it will not be perfect, but it will make the politicians work harder when they try to appoint unqualified political flunkies to positions in pivotal institutions. When it was operational, I personally saw its efficacy. It rejected an unsuitable nominee. This is pretty much all that should be included from the provisions regarding the Independent Commissions. What does not belong in the Constitution Most of the 192 words specifying the Right to Information (RTI) as a fundamental right are superfluous. There is an entire bill in third draft that probably includes the very same language (if it does not, the Constitutional language will override it). All that is needed in the Constitution is one sentence “Subject to law, every person shall have a right of access to official information which is in the possession, custody or control of a public authority.” The public authorities that fall within the scope of the fundamental right can be specified in the Act, along with the exceptions to the duty to provide information upon a person’s request. These are matters best left to the statute because mistakes can be made. It is best that the detailed provisions are included in a legal instrument that can be amended if necessary. The 19th Amendment does not specify that the members of the RTI Commission must be appointed by the President on the recommendation of the Constitutional Council, but the draft Bill does. This shows the redundancy of the specification within the 19th Amendment of all the other Commissions whose members must be so appointed. It is true that mentioning the need to seek the CC’s recommendation in the Constitution itself provides a stronger safeguard for the independence of the members, because changing the procedure would require a difficult-to-get two-thirds majority. But why are the appointment procedures of some Commissions entrenched the 19th Amendment and others not? Why is RTI, a fundamental right, less important than procurement? Why are the appointment procedures of the Public Utility Commission which has regulatory authority over the critical subject of energy at present, and over other infrastructure services when the government so decides, not constitutionally entrenched? What should be done? When the drafters make the text of the 19th Amendment consistent with the Supreme Court’s decision, they can also remove all these redundant provisions. We would left with a much more elegant Constitution and a more workable government because Constitutional amendments will not be needed every time a small change is needed. Adding new language to a bill that has undergone review by the Supreme Court will cause delay. But deleting language will not. Deleting provisions regarding the Procurement Commission or the Audit Commission from the 19th Amendment will not preclude their establishment or the safeguarding of their independence. They can be established after due deliberation and following all the procedural steps including review by the Supreme Court. The appointment of the members can still be done by the Constitutional Council, ensuring their independence. The present policy window is around 100 days, leaving little time for broad consultation and careful deliberation. In these circumstances mistakes are likely to occur; they already have. Parsimony in what is included in the Constitutional amendment can minimise the errors that could creep into this rigid legal document. It is better to include only the most important and structural elements in the Constitution and leave the rest to normal legislation.

It’s still not too late to clean up the 19th Amendment

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