Constitutions and amendments

By Neville Ladduwahetty

The 20th Amendment (20A) to the Constitution has become a topic of spirited debate and discussion. Much of it is generated by misunderstanding the true intent of 20A. It should not be a durable amendment to the Constitution. Instead, it should be temporary, until a comprehensive new Constitution is developed and presented to the nation.

Until then, 20A should serve as a stop gap for the Executive President to address the unprecedented challenges the country has to face following the COVID-19 pandemic. With this in mind, the intent of 20A should be to either repeal those provisions that had been introduced by the 19th Amendment to seriously dilute executive powers as admitted by the framers of 19A or to repeal 19A altogether and restore the executive powers the President had under the 1978 Constitution. It is only by removing the constraints that exist under 19A that the President would be in a position to address the daunting challenges that lie ahead. Without strengthening the hand of the Executive, the formidable task of social and economic recovery that the country is compelled to face because of the global pandemic would be a near impossibility.

THE NEED for 20A

The two most formidable issues that should engage the full attention of the government and the nation are:

(1) The need to continue with the very effective measures adopted to contain COVID-19 in order to prevent the possibility of a resurgance.

(2) The absolute urgency to revive the seriously depressed economy, brought about nationally and globally by the pandemic.

As far as the first issue is concerned, the government has demonstrated very effectively that it has the capabilities and organizing abilities to implement procedures and practices to maintain the health of the nation to such a degree that the President and the Sri Lankan nation have received international acclaim. An equally encouraging aspect is the support extended by the public to the call of the government to practice the health safeguards recommended by the government. What the government and the nation have collectively achieved is a shining example to the world for which we as a nation could be proud of.

The elephant in the room is how to revive the depressed economy. While the measures that need to be adopted are bound to test the skills and ingenuities of the entire nation, an equally important factor that would have a direct bearing is the freedom for the government, in particular the President and the executive branch, to act without being constrained by the fetters introduced by 19A.

There is no denying the fact that 19A was introduced with the deliberate intent of diluting executive powers of the President. In fact, Dr. Jayampathy Wickramaratne P.C., (Dr. JW) referring to 19A, has admitted that the initial attempt was “to completely abolish the Presidential system of government”. This attempt failed because the Supreme Court ruled that the intended attempt would require a referendum. The end result was the compromised version of 19A. According to Dr. JW, “The experience under 19A clearly showed the need to completely abolish the Presidential form of government and move towards a Parliamentary form…” (The Island, September 8, 2020).

The approach should not be to analyze which Article should be amended and to what degree, since such an exercise would not only be time consuming but also would add to the confusion that already exists in 19A. Instead, the approach should be to undo the entirety of 19A, and for the executive power of the President that had existed under the 1978 Constitution to be restored, for the simple reason that tough measures are needed to overcome the economic black hole Sri Lanka is in, the likes of which the nation as a whole has never seen.

The argument that such an approach would restore what is often described as draconian executive power amounting to a Presidential dictatorship that had existed under the 1978 Constitution, is unfounded if one realizes the full impact of the economic catastrophe the nation is currently facing. The situation is so dire that the bulk of the nation is more concerned with the basics of existence and survival rather than about niceties of Democracy and Good Governance that only the fortunate few could afford to be concerned about.

THE NEED for a NEW CONSTITUTION

Having addressed the short term issues, the next is the long term issue of a new Constitution. The genesis for 19A and 20A is the 1978 Constitution. Therefore, any anomalies and contradictions that exist in amendments invariably are a result of anomalies and contradictions in the 1978 Constitution. Describing the system of government under the 1978 Constitution, Dr. JW quotes Dr. Colvin R. De Silva as having described the 1978 Constitution “as a constitutional presidential dictatorship dressed in the raiment of a parliamentary democracy’ (Ibid). The comment is justified because the 1978 Constitution has features of Presidential and Parliamentary systems, notwithstanding that each represents one of the two ideologically completely different systems of government by which practically all democracies are governed. If such contrasting systems are incorporated in a single constitution confusion is inevitable, as evident from the 1978 Constitution and its related amendments. Therefore, the framers of a new constitution should endeavour to base it on either one or the other, a Presidential or a Parliamentary system, but certainly not a mix of both.

PARLIAMENTARY and PRESIDENTIAL

FORMS of GOVERNMENT

Under a Parliamentary system, Parliament is supreme and as described in the 1972 Constitution is the “supreme instrument of State Power”. This means that Parliament is responsible for Legislative and Executive functions. A few members of Parliament are selected by the Prime Minister to form the Cabinet of Ministers to exercise the executive functions of the government. Consequently, the Cabinet of Ministers is responsible and answerable to Parliament.

On the other hand, under a Presidential system, the cardinal principle is the separation of Legislative and Executive power. This separation is underscored by the fact that each branch is separately elected by the people and responsible for the exercise of separate powers, namely Legislative and Executive. This separation is clearly outlined in Articles 4 (a) and 4 (b) respectively, of the 1978 Constitution.

Article 4 (a) states: “the legislative power of the People shall be exercised by parliament…”.

Article 4 (b) states: “the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President…”.

Commenting on the executive power of the people, the Supreme Court in S.D. No. 04/2015 stated: “It is in this background that the Court in the Nineteenth Amendment Determination came to a conclusion that the transfer, relinquishment or removal of the power attributed to one organ of government to another organ or body would be inconsistent with Article 3 read with Article 4 of the Constitution. Though Article 4 provides the form and manner of the sovereignty of the people, the ultimate act or decision of the executive functions must be retained by the President. So long as the President remains the Head of the Executive, the exercise of his powers remain supreme or sovereign in the executive field and to others to whom such power is given must derive the authority from the President or exercise the Executive power vested in the President as a delegate of the President”.

On the other hand, Article 43 (1) states: “There shall be a Cabinet of Ministers charged with the direction and control of the Government of the Republic which shall be collectively responsible and answerable to Parliament”.

Commenting on Article 43 (1) the Supreme Court in the same case, S.D. No. 04/2015 stated: “This important Article underscores that the Cabinet collectively is charged with the exercise of Executive power, which is expressed as the direction and control of the Government of the Republic and the collective responsibility of Cabinet of which the President is the Head. It establishes conclusively that the President is not the sole repository of Executive power under the Constitution. It is the Cabinet of Ministers collectively, and not the President alone, which is charged with the direction and control of the Government.

This Cabinet is answerable to Parliament. Therefore, the Constitution itself recognizes that Executive power is exercised by the President and by the Cabinet of Ministers, and that the President shall be responsible to Parliament and the Cabinet of Ministers, collectively responsible and answerable to Parliament with regard to the exercise of such powers…”.

It is evident from the opinions cited above that the powers of the President depend on whether he acts under provisions of Article 4 (b) or Article 43 (1). For instance, under provisions of 4 (b) the “President as the Head of the Executive is sovereign in the executive field”. However, if the President acts under provisions of Article 43 (1) the Court stated that “the Constitution itself recognizes that Executive power is exercised by the President and by the Cabinet of Ministers”. The potential for such contrasting interpretations that exist in the 1978 Constitution have been blindly repeated in 19A without regard for their relevance or irrelevance.

Another serious contradiction often overlooked is that a President elected by the People should be recognized as being co-equal with Parliament under provisions of separation of power. Therefore, the President cannot be responsible to another organ of government– the Parliament. Furthermore, if the Cabinet of Ministers derive their authority from the President as interpreted by the Supreme Court, the Cabinet cannot be responsible and answerable to Parliament either. Under the circumstances, Article 33A that calls for the President to be responsible to Parliament “for the due exercise performance and discharge of his powers, duties and functions” is a violation of the principle of separation of power.

The few examples cited above amply demonstrate that while the framework of the 1978 Constitution is essentially Presidential, it has sufficient elements of a Parliamentary Democracy to warrant the Judiciary from giving contrasting opinions depending on which Article it interprets. This ambiguity requires Sri Lanka to adopt either a Presidential or a Parliamentary system, but not a mix of both systems. Despite the fact that such contradictions have been brought to the attention of the public, confusion has reigned uninterrupted. Therefore, the need is for Parliament to vote on which system of government is best suited to govern Sri Lanka. Furthermore, when formulating a new constitution, it is also recommended that a fresh approach be incorporated to devolve power to the smallest practical workable unit in order to strengthen operations in the periphery.

CONCLUSION

According to media reports the intention of the government is to introduce the 20th Amendment. Indications are that each Article would be reviewed and amended where necessary. Such an exercise is bound to repeat the contradictions in 19A because the framers mechanically copied provisions from the 1978 Constitution without understanding what separation of power is all about in a Presidential system. Therefore, it is best to repeal 19A completely, and go back to the powers exercised by the President under the 1978 Constitution as a stop gap measure until a new constitution is formulated. Such an interim measure is vital in order to prevent a resurgence of COVID-19 and to equip the executive with necessary powers to revive the depressed economy.

Critics to such an approach may consider it to be the death knell to Parliamentary democracy. What such critics forget is that the country is in such dire straits economically, that drastic measures need to be introduced if the country is to get back to some degree of normalcy. Proof of the merits of such an approach is evident from the uncompromising measures successfully adopted by the government to contain COVID-19; a fact acknowledged internationally. The reversal to the past is intended to be only until such time that a new constitution is tabled and adopted by Parliament and the People at a referendum.

In summary, the essence of the recommendation is for the 20A to define a clear two-step approach. Step One is to repeal all of 19A and strengthen the hand of the President and the executive with necessary powers to address all issues relating to COVID-19, and to also adopt all necessary measures to revive the economy. Step Two is for Parliament to vote and give clear direction as to whether the new constitution should be based on a Presidential or Parliamentary system to address all issues relating to good governance in all respects. Adopting such a clear cut approach without ambiguities would enable Sri Lanka to be free of the current fog of confusion, and embark on a fresh Chapter in her history.