Features
Building a future and forgetting the past
by Professor Savitri Goonesekere
At the ceremonial opening of out first Parliament on February 4, 1948 the late Mr. SWRD Bandaranaike addressed the nation with theses words. “It is true that no people can live on memories alone. It is equally true that history often provides a source of strength and inspiration to guide them in the future. It is only against the background of the past that the present and the future can be viewed in their correct perspective”
The new political ideology of “thinking out of the box” in governance seems impatient with the idea that history and experience has any value. This may be the “new normal” in a country where history was not taught in our schools for decades. The 20th Amendment that has just been gazetted and will go before Parliament for adoption demonstrates that the newly elected government is embarking on the important task of constitutional reform without reflecting on our experiences of governance under the 1978 Constitution.
Most nations in South Asia have not had to carry out frequent changes to the basic law of their country, the Constitution. It is true that our country has not in general experienced illegal power grabs. Yet electoral politics has also encouraged ad hoc amendments to the Constitution. In debating the cost of recent exercises in constitutional reform, the 20th Amendment, we should reactivate our collective memories on governance over the years. In doing so we should reflect on SWRD Bandaranaike’s statement of 1948 giving due consideration to the kind of governance we deserve and want for our country in the future.
The SLPP campaign for repealing the 19th amendment and adopting a new constitution.
The opposition and the media did not ask them to clarify their rationale for doing so or their vision. Within a month of taking office the 20th Amendment is being brought to Parliament to give supreme powers to the President without the system of checks and balances on distribution of powers between the three agencies of government in a Parliamentary democracy – the Legislature, the Executive and the Judiciary (courts). It is true that strong leadership in governance is essential for national development. However Parliamentary democracies create institutions and systems to help great leaders govern without forgetting the responsibilities of office and accountability, heeding not just electoral majorities, but all the people.
The 1978 Constitution provided the framework of governance for our country for 42 years. A Constitutional amendment that gives supreme power to an elected popular leader without institutional checks and balances can determine governance in a country long after he has left office.
The 19th amendment 2015
The 19th Amendment continues to be demonized by politicians in the government and others as a conspiracy of the previous regime to cunningly increase the powers of the then Prime Minister and undermine the President’s powers in governance. Yet the consensus within and outside Parliament in 2015 was that the dismantling of the Executive Presidency of the 1978 Constitution done in stages pending a new Constitution was a worthwhile objective and in the public interest. It was agreed at that time and up to mid 2019 that the Executive Presidency was a demon that had to be destroyed.
That agenda itself had a long history that we have all forgotten. President Chandrika Kumaratunga, when she took office pledged to dismantle the “bahubootha” 1978 constitution which she said was responsible for decades of bishanaya and dooshanaya (violence and corruption). Prof. GL Pieris and the late Dr. Neelan Tiruchelvam were tasked with giving leadership and drafting a new Constitution that would transfer executive power to an elected Prime Minister and a Cabinet responsible to Parliament and the people. When taking Cabinet office in that government Prof. Pieris said “a Parliamentary executive model must be re-introduced. The Peoples Alliance has received an overwhelming mandate … for the abolition of the Executive Presidency.” (Sunday Times September 13, 2020, page 14).
President Mahinda Rajapaksa assumed office in 2005 on a mandate to dissolve the Executive Presidency. His Mahinda Chinthanaya policy for national development called for strengthening the Bill of Rights in a new Constitution. The National Action Plan on Human Rights was drafted and adopted. The President also appointed an Expert Committee to assist the All Party Conference (APRC) on constitutional reform and asked them to work towards maximum devolution to resolve the “national question” with power sharing. Yet in 2010 after giving leadership in ending the armed conflict in 2009 President Rajapaksa seized the moment to bring an 18th Amendment to the Constitution that would enable him to become a President for life. He acquired full powers on appointment and removal of holders of high office and Public Commissions without the scrutiny of a Constitutional Council and procedures introduced by the 17th amendment.
When President Sirisena was elected in 2015 he assumed office with a pledge to the nation to dismantle the Executive Presidency. He repeated this pledge on the passing of Rev. Maduluwave Sobitha who had led an election campaign to eliminate the executive presidency reinstating the checks and balances on abuse of executive power through institutions such as Parliament and the courts and independent commissions. It was in this environment that the 19th amendment was adopted by consensus and the two-thirds majority without challenge within the Parliament or in the Supreme Court.
A comparison of the 19th and 20th amendments.
A comparison of these two amendments clearly demonstrates that the cores principles of government in the 19th Amendment has been removed by the 20th Amendments in areas of great significance for the governance of the country.
The term of the Office of President and
Eligibility for office
The 19th Amendment repealed provisions in the 18th Amendment, and set a term of office of five years, and a two term limit on the period in which he could serve in this office. These provisions have been retained in the 20th Amendment .However, the President holding office under the 20th Amendment will have all the powers of the Executive President in the 1978 Constitution, and some more powers.
When the 19th Amendment introduced limitations on the President’s terms of office, it also REDUCED Presidential powers to accommodate the concept of a transfer of powers from the President to an elected Prime Minister in Parliament. The changes in the Presidential term of office were combined with what Parliament agreed was a first step in LIMITING the executive powers of the President, to ensure accountable exercise of these powers.
The 19th amendment prohibited a dual citizen from being elected to office as a Member of Parliament, or as the President. These prohibitions have been repealed by the 20 Amendment and such persons can be Members of Parliament or President.
There is a perception that this prohibition will prevent dual citizens from holding ANY public office. This is incorrect. The prohibition in the 19th Amendment only applied to the public offices of President and Members of Parliament, recognizing the potential for a serious conflict of interest should such a person be called upon to “carry arms” for another country, or support controversial policies of that country. An ordinary holder of public office may have choice and can resign. However resignation for conflict of interest has Constitutional implications, if a person is the President of the country, or a member of its legislative body, Parliament.
Presidential Powers and Accountability to other organs of Government and the People, in the Exercise of these Powers.
Significant changes to the 1978 Constitution were made by the 19th Amendment in keeping with the overall objective of reducing the powers of the Executive Presidency, in the interests of accountable governance .
a) Duties of the President.
The 19th Amendment defined powers and also introduced a principle of “duties” that had to be fulfilled by the President. Some of the significant duties were, to:
i) ensure that the Constitution is respected and upheld
ii) promote national integration and reconciliation
iii) create a proper environment for the conduct of free and fair elections, on the advice of the Election Commission
The 20th Amendment retains provisions on Presidential powers and REPEALS the provisions in the 19th Amendment on Presidential duties under the Constitution, and to the People, and the other organs of government.
b) Accountability for Violation of the Fundamental Rights of the People by Presidential Acts and Omissions in Governance
The 19th Amendment removed the blanket immunity of the President that was incorporated in the 1978 Constitution. The 19th Amendment recognized that the President was immune from liability in criminal or civil proceedings for anything done or omitted to be done in his official or private capacity. However, it placed a limitation, by permitting actions for violation of fundamental rights in the Supreme Court. This was to ensure that the exercise of Presidential powers, in his official capacity, could not involve a violation of fundamental rights guaranteed to all by the Constitution, or by the provisions on the use of Official Languages in the Constitution.
The declaration of war and peace was excluded from this limitation.
The 20th Amendment repeals these limitations on Presidential immunity. It goes back to the principle of complete Presidential immunity from liability for his acts and omissions.
There is a provision in the 20th Amendment on the right to bring actions against the Attorney General in respect of the President’s acts as a Minister, his /her impeachment, elections and a referendum, but the scope of this liability is not clearly stated.
The Presidents Relationship to Parliament
a) Responsibility to Parliament in the exercise of Presidential Powers
The 19th Amendment gave prominence to the President’s responsibility to Parliament in the exercise of his powers and functions, as a core principle of governance, in the Chapter of the Constitution on the President’s powers and duties. This principle was originally stated in the 1978 Constitution in the Chapter on the President and the Cabinet – the branch of the executive also represented in Parliament. The 20th Amendment brings this principle back to the part of the Constitution that deals with the Cabinet, denying it the importance given in the 19th Amendment.
The change can be interpreted as limiting the President’s responsibility to Parliament. It is significant in a context where the 20th Amendment gives total presidential powers in regard to appointments to “High Posts,” defined by the Constitution, and the Public Commissions defined in the 20th Amendment. The Constitutional Council that was given oversight responsibility by the 19th Amendment had a significant majority of Parliamentarians on the Council. The Constitutional Council has been abolished by the 20th Amendment, and the Parliamentary Council that replaces it has the Speaker, the Prime Minister and the Leader of the Opposition, and two Parliamentarians nominated by the latter, who are appointed by the President, and who can also be removed by the President at his discretion!
The Parliamentary Council under the 20th Amendment is under the control of the President, and there is only a token role for Parliamentarians, including the Speaker the Prime Minister and the Leader of the Opposition. They have no contribution to make in their official capacity as members of the Parliamentary Council.
b) Dissolution of Parliament
Presidential powers on the Dissolution of Parliament, and the provisions on presentation of urgent Bills, also erode the role and responsibility of Parliament, and the capacity for oversight and scrutiny of legislation.
The 20th Amendment empowers the President to dissolve Parliament one year after a General Election. This places the country in a situation where a costly General Election can be held in a very short time , and with no assurance that this decision will be made in the public rather than the rulers’ interests.
c) Other changes of concern relate to the Presidents capacity to refer legislation that has been rejected by Parliament for a referendum.
This provision in the 1978 Constitution was repealed by the 19th Amendment and has been brought back by the 20th Amendment. A new provision on legislation states that “any amendment to a proposed Bill in Parliament must not deviate from the merits and principles of such Bill.” This sweeping provision can restrict debate and modifications of legislation in Parliament, and will encourage greater passivity and disinterest in serious discussions.
The President, Prime Minister and Cabinet,
as the Executive in Governance
The agreed objective of the 19th Amendment was to reduce the executive power of the President and transfer some of these powers to a Prime Minister and Cabinet from Parliament. Consequently, the provisions in the 1978 Constitution were changed significantly. The 20th Amendment has repealed all these provisions and gone back to the concept of supreme executive powers given to the President.
The President has complete discretion in determining the number of Ministries and the topics allocated to Ministries and State Ministries. “Jumbo Cabinets” can hold office without regard to national resources, at the discretion of the President. More importantly, the office of Prime Minister, Cabinet Minister and State Minister, will be held at the “will and pleasure” of the President, with the full power of appointment, removal, and selection of Ministries left entirely to the discretion of the President. He can also assign any subject to himself, and take away Ministries allocated to any Minister, without even consulting the Prime Minister, exercising these powers in any manner that pleases him.
There are no checks and balances at all on the exercise of Presidential powers in relation to the Prime Minister and Cabinet, under the 20th Amendment. Can this not encourage complete servility to the President, within Cabinet?
The changes ignore the fact that the Prime Minister and Members of Parliament have been elected by vote to Parliament with separate responsibilities to voters. Having permitted voters to exercise choice, the 20th Amendment disempowers them completely, and makes them accountable to a single individual – the President. The Prime Minister has been reduced to an ” peon (office orderly),” as one holder of the office described himself, when he held the position under the 1978 Constitution. Yet ironically the provision that the ‘Cabinet has the direction and control of government and that they are answerable and responsible to Parliament” has been retained in the 20th Amendment.
(to be continued in The Island tomorrow)
(The writer, a highly accomplished academic in law, is a former Vice Chancellor of the University of Colombo)