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Why the 18th constitutional amendment is necessary

Sep 4, 2010 3:41:29 PM- transcurrents.com

By Prof G. L. Peiris, Minister of External Affairs

After two decades, we have a durable peace and an unprecedented degree of political stability. The challenge is to use these opportunities to move the economy of the country forward. There are changes that have to be made with regard to the constitutional framework, the legal system and the regulatory mechanisms now in operation, and that is the basic initiative of the government at this time.

From that perspective, one of the changes that we would have to address is the constitutional reforms. There are many things that need to be done in this regard, but they can’t all be done simultaneously. We therefore have to identify our priorities. As a result of that process of assessment and evaluation, we have identified the immediate constitutional reforms to be effected without delay. There are many other substantive changes that have to take place. Among these are the electoral system, the proposal with regard to a second chamber, and other aspects of the political process. Those will be addressed in due course. The changes that are being made immediately are to reinforce the stability that already exists, and to inspire confidence.

We have a situation today in which an unrivalled number of tourists are visiting the country. Foreign direct investment is coming in. Some of the world’s leading entrepreneurs are looking at Sri Lanka seriously. Just last week the Chairman of the Shangri La chain of hotels came into the country and they have already made a firm decision to build a Shangri La hotel in Colombo. Then Anand Mahindra of India was here. S. P. Tao, who did not desert us even at the worst of times, is active. In that situation, we want to enhance the confidence in the country, to attract flagship investments, to invigorate the economy. It is in this context that these reforms are considered opportune.

The presidency

The present set of reforms has two basic features. One of these has to do with the executive presidential system the other with the series of issues connected with the 17th amendment. It is generally recognized that to accelerate economic development, a fundamental requirement is a strong executive. That is an absolutely essential condition. Today, an overwhelming number of Sri Lankans would concede that terrorism could not have been eradicated without the executive presidency and the strength which that institution imparted to the body politic. Given the composition of parliament, it would not have been possible even to think of winning the war against terrorism without the strength of the executive presidency. What we are now doing is that we are removing the limit on the number of terms that a person could have as executive president. This is a simple amendment which requires the removal of article 31(2) which limits the number of terms to two.

That provision is being repealed so that there will be no limit hereafter on the number of terms. This amendment is simply restricted to removing a legal fetter. If the people of the country feel that the president should continue to be president for a longer period, we see no reason why the law should conclusively prevent that from happening. There is no question of extending a presidential term from six to seven years; that is not what is being done. The people are merely being given the right to elect the person of their choice. That is undoubtedly a strengthening rather than a weakening of the franchise.

At the same time we have seen to it that there will be a closer link between the executive president and parliament. Under the present constitution, the president can attend meetings of parliament, he can address parliament and take part in parliamentary proceedings without restriction. There is only one thing that he cannot do - vote in parliament. However under the present constitution, there is no obligation on the part of the president to attend sittings of parliament. He may do so if he wishes to but there is no compulsion. We are now changing that to require the president at least once in three months, to attend parliament, and that is going to make a very significant difference. Sir Ivor Jennings in his book on Parliament refers to the importance of that. This has to do with the whole culture of parliament. If the head of the government is seen in parliament, mixing with members, and he is there in the lobby, the library, the restaurant, and is accessible to members of parliament, and he is there to advise and enthuse, that makes a very substantial difference. In terms of the present amendment, it is the duty of the president to attend parliament at least once in three months.

The 17th amendment

The next set of changes is in respect of the 17th amendment. Sri Lanka’s recent experience has shown that the 17th amendment has not worked well on the ground. It has been a dead letter. It was cobbled together in parliament in a great hurry. At around 5.00 pm on the last day, it was thought that the 17th amendment would not be passed because there was not enough support and the Speaker adjourned parliament. The party leaders then decided to make one final attempt to arrive at a consensus, and late in the evening, it was announced that such a consensus had been arrived at. But this consensus had been arrived at entirely on the basis of expediency in the absence of any principle or policy. Not many people are aware that when the 17th amendment was sent to the Supreme Court to be tested for constitutionality, the judgment of the supreme court made reference to that situation and in what could now be seen as a prophetic passage in the judgment of the court, the Supreme Court said that they could envisage formidable problems and that this amendment could not work on the ground.

They said that they could see very serious problems arising and that there were so many complexities that would prevent the 17th amendment from being applied in practice. That is what happened. The Supreme Court foresaw that. In order to resolve some of these problems an all party committee was appointed under the chairmanship of D. E.W. Gunasekera, who tried very hard to resolve these problems. He invested a great deal of time effort and energy in this exercise but up to date, it has not been possible for all these political parties to come together to sign a report containing conclusions which they are all able to accept. The result has been that the 17th amendment has proved incapable of pragmatic application. The government thinks there is an urgent need to rectify that position and to appoint the commissions without delay. It is for this that the cabinet decided to certify these amendments as an urgent bill. This would enable parliament to debate these amendments next week and enact them into law and that in turn would pave the way for the appointment of the commissions by the president.

All the commissions will remain. The elections, commission, finance commission, delimitation commission, human rights commission, police commission, the public service commission and the commission against bribery and corruption. All seven will remain. None of them will be abolished. The changes are with regard to the mode of appointment and the functions of some of these commissions. As far as the mode of appointment is concerned, there is one cardinal factor to be borne in mind, namely, whatever is done with regard to the commissions has to be consistent with article 4(b) of the constitution of Sri Lanka which vests the executive power of the people in the president. There cannot be any change with regard to that without a basic change in the structure of the constitution. The executive power has to be exercised by the president and there cannot be an encroachment upon it, without bringing about a situation where there would be a grave infringement of basic principles embedded in the constitution.

Even today, prior to amendment, the appointing authority of the commissions is the president. That remains in the amendment. The effect of the amendments is that the president appoints, but prior to making his decision, he is under an obligation to seek the observations of five persons, who constitute the Parliamentary Council. That is salutary in that it requires the participation of parliament. The parliamentary council consists of five persons, the speaker, the prime minister, the leader of the opposition, and two parliamentarians nominated respectively by the prime minister and the leader of the opposition. Those two nominees must represent communities that are not otherwise represented in the Parliamentary Council. For example, if the PM were to appoint a Tamil member of parliament, the leader of the opposition would have to appoint a Muslim or vice versa. That would ensure the representation of all communities.

Their views will be taken into account by the president, but the final decision will be that of the president, which is in any case, the final result of even the existing provisions of the Constitution. The parliamentary council is required to transmit their observations to the speaker within a week and the speaker conveys it to the president. The commissions are appointed for a period of three years at a time.

The Commissions

With regard to the functions of the commissions, there are changes to the public service commission and the police commission. If you look at the empirical experience of the functioning of the national police commission over the past few years, there are many anomalies which are evident. Those anomalies stem from one basic cause. It is that the routine functions pertaining to the running of the police department were vested in the national police commission. That is impractical. Appointments, routine transfers, promotions, disciplinary action, all of that was vested in the national police commission. The IGP was not even an ex-official member of the National Police Commission. The system that is now to be introduced is fundamentally different in character. The IGP as the head of the department will be in charge of these routine functions as it ought to be. But any police officer who has a grievance has recourse to the public service commission. The public service commission in that respect will fulfil something akin to an appellate function. The functions of the national police commission are being redefined. Their function under these amendments will be to entertain complaints from the public where the public have reason to complain about police behaviour. This will be a forum for the public to take up their grievances and to ask for redress.

If you look at this gamut of reforms the main feature is that the Constitutional Council ceases to exist and is replaced by the Parliamentary Council. The constitutional council was conceived of in terms of the 17th amendment as an apolitical body. Its basic rationale was that of depoliticisation. But the very composition of the constitutional council militated against the accomplishment of that objective. The CC did not consist of persons of eminent stature or those who were chosen for their academic or professional background, or a distinguished record of public service. On the contrary, they were nominees of political parties. They were put there by political parties and they were responsible to no one other than the political parties to whom they owed their appointments. It was difficult to conceive of a mechanism that was more politicized than the constitutional council. There is a contradiction between the composition of the Constitutional Council and the purported purpose for which it was brought into being. It is from the point of view of policy far more appropriate to vest these functions in the elected representatives of the people, who are accountable to the people and parliament rather than vesting these functions in a group of people who are nominees of political parties and therefore cannot aspire to any degree of detachment or objectivity.

The parliamentary council also has a role with regard to the appointment of certain other categories of persons such as the chief justice and the judges of the supreme court, the president and judges of the court of appeal and the members of the judicial service commission other than the chief justice. The president remains the appointing authority for these positions, but the views of the parliamentary council will have to be sought in making these appointments. That is schedule 1. Schedule 2 refers to five officers - the attorney general, the auditor general the parliamentary commissioner for administration (Ombudsman), the secretary general of parliament and the IGP. We are retaining four of these but removing the IGP from this schedule. The IGP does not belong to that category. The others have constitutional recognition. The IGP is a head of department. His inclusion in that category is anomalous. Here again the appointing authority is the president and the process of consultation with the parliamentary council will apply to these appointments as well.

The constitutional amendment which was approved by cabinet contained another important principle, which is the responsibility on the part of the cabinet of ministers for the appointment of heads of departments. That is a salutary provision which has been in all the constitutions that this country has been governed under from the Soulbury constitution onwards. That principle is now enshrined in the amendments.

We need to ensure that there is no atrophy in the functioning of government. When we take the experience of other countries in the region like the Maldives or Nepal, In the Maldives, the constitution was underpinned by what was believed to be checks and balances. But those checks and balances are demonstrably lacking in a sense of balance. Today the feeling there is that the executive has been stultified to such an extent as to bring about a gridlocked situation. In Nepal, the prime minister and foreign minister told us that the situation in that country was that the government has only very restricted power to make decision on such crucial matters such as the use and possession of arms. So it has brought about a situation of instability which the government cannot control. This raises the question of authority verses responsibility. Whoever has the responsibility must have the authority to carry out that responsibility. Defence in this country is an integral part of the executive function. The president has the power to give directions to the commander of the army, navy and air force. The same must apply to the police as well.

It is worthy of note that an arrangement comparable to the 17th amendment has not been operated in any country. That is so because it is inherently unworkable. It erodes the essential functions of governance. That is why it has not been attempted anywhere else. In Sri Lanka it was a result of a series of compromises arrived at in a matter of three hours in parliament and these were compromises which were not anchored in any coherent principle or policy. That is why it has turned out to be unworkable. This is precisely what the supreme court foresaw, and expressed in the clearest possible terms.