• Checks and balances in a Constitutional Amendment

  Change, for the better or for worse, was taking place in 2015, and it was inevitable unless the mischief-makers of the past regime served to be a deterrent to the plans of then-President Maithripala Sirisena. With the unveiling of the 19th Amendment to the Constitution Bill sans the electoral reforms demanded by the members of the Sri Lanka Freedom Party (SLFP) and other parties of the then-United National Front for Good Governance regime, it remained to be seen if such was to be the reason for a major uproar in Parliament. The 19th Amendment to the Constitution Bill nevertheless appeared to be a good one and entrenched much of the promises relayed to the masses by Sirisena, save a few. In light of the radical changes proposed by Sirisena in his election campaign and his 100-day plan, the members of the previous United People’s Freedom Alliance (UPFA) regime had been hither and thither over the deviation from the general norm of politics. Many actions of a questionable nature, such as the appointment of United National Party (UNP) Leader Ranil Wickremesinghe as Prime Minister and the removal of former Chief Justice (CJ) Mohan Peiris PC from the said post, had been adopted to assist Sirisena in implementing his 100-day plan. Of this, the highlight was the 19th Amendment to the Constitution Bill. The much-hyped 19th Amendment to the Constitution Bill had been unveiled incorporating several changes to the Executive and the Legislature. Further checks on the aforesaid organs of the State had included the setting up of a Constitutional Council (CC) and a Council of State, among others. However, the 19th Amendment to the Constitution Bill in no way suggested an absolute devolution of power as originally promised by Sirisena. A major factor to be noted and a definite plus-point in the 19th Amendment to the Constitution Bill was the inclusion of the right to information as a fundamental right under Article 14A of the Constitution, the latter Article which was newly inserted into the Constitution through the 19th Amendment to the Constitution Bill. The Right to Information Draft Bill in the form that it existed in back then was very contentious in nature and possessed a multitude of flaws, but nevertheless, the right as proposed to be included in the Constitution appeared to be very extensive in nature. Section 3 of the 19th Amendment to the Constitution Bill had even called for the new insertion of an Article 14A(1)(d) to the Constitution to empower citizens to possess the right of access to any information held by any other person. The authors had, in their submission of recommendations to the 19th Amendment to the Constitution Bill, called for the words “any other person” to be replaced by “any public official” as the former would be a violation of an individual’s right to privacy as recognised by the Universal Declaration of Human Rights. Further to this, the Right to Information Draft Bill, if it had been enacted without the rectification of its abundant flaws, would have played a distinct role in restricting this right that was to be granted to the public by the Constitution.   Requirement of a referendum   A point that had been vastly discussed and believed in light of the related discourse at the time was that the radical proposals would compel the requirement of a referendum if they were to be incorporated into the Constitution. Article 83 of the Constitution requires a referendum to be held if there is any Bill for the amendment or repeal and replacement of or which is inconsistent with Articles 1-3, 6-11, and 83 of the Constitution. It also requires a referendum if any Bill is to require the same in regard to Articles 30(2) or 62(2) of the Constitution if it sought to extend the term of the Presidency or Parliament. Through Sections 4 and 18 of the 19th Amendment to the Constitution Bill, the term of a President and Parliament had both been brought down to five years. As such, an amendment had been introduced to recognise such a change in Articles 30(2) and 62(2) of the Constitution, respectively. Despite the proposed amendment to an entrenched provision in the Constitution, there did not appear to be a requirement for a referendum, as the amendment merely sought to reduce the term and not extend the term. Court of Appeal (CoA) President, Attorney General (AG) and CJ Sarath Nanda Silva PC, when consulted on the matter by the authors, opined the same. Another provision in the 19th Amendment to the Constitution Bill that was mildly toying with the idea of a referendum was the proposed amendment to Article 4 of the Constitution. Article 4 of the Constitution is not recognised by Article 83 of the Constitution as an entrenched provision by itself. However, on all occasions where an amendment to Article 4 of the Constitution has been sought, the Supreme Court (SC) has read Article 4 of the Constitution coupled with Article 3 of the Constitution as they both concern the sovereignty of the people. However, the 19th Amendment to the Constitution Bill merely added the words, “in the manner hereinafter provided”, which makes no difference to the provision in Article 4 of the Constitution whatsoever. The drafters of the 19th Amendment to the Constitution Bill had been very careful in ensuring that the 19th Amendment to the Constitution Bill avoided having to be contested at a referendum.   The Executive President   The position of the Executive President continued to stand with a majority of the powers intact, including the ability to appoint the Prime Minister of his/her choice. The President, although losing his/her portfolio as the Head of the Government through the 19th Amendment to the Constitution Bill, continued to play a pivotal voice in the selection of the Cabinet of Ministers and the role of Cabinet in Parliament. Despite Sirisena earlier claiming that the Presidency would be limited to a single term, Section 5 of the 19th Amendment to the Constitution Bill merely sought to revert to the position before the 18th Amendment to the Constitution when an individual was eligible to be the President only twice. Further to this, if the President was to die, the Chairperson of the Council of State was to be appointed in his/her place, and if such a position was vacant at such point, then the Speaker of Parliament would be made the President. This was a deviation from the earlier position that the Prime Minister would assume the office of the President in the event of the death of the incumbent President. The President was also empowered to make the Statement of Government Policy, preside over the Cabinet’s ceremonial sittings, to summon or prorogue or dissolve Parliament, and to appoint diplomats and diplomatic missions to foreign countries, among other powers. A very contentious issue in recent times had been the number of political appointees serving as diplomats abroad. Soon after assuming power, the new regime at the time had recalled several diplomats deemed to be politically motivated appointees back to the country. In such light, it had been rather dubious that the regime chose to continue entrusting the President with the same power. The authors had recommended that such power of appointment of the diplomats be carried out by the President, however, in consultation with the CC, and that only those with a grading from the Sri Lanka Foreign/Overseas Service should be eligible to be picked. This ought to be implemented in order to avoid the repetition of similar issues faced and pointed out recently. The President’s Executive powers were curtailed in Section 7 of the 19th Amendment to the Constitution Bill, which held the President accountable to Parliament for the exercise of his/her powers and duties under the Constitution and other written law. It also required the President to act on the advice of the Prime Minister or the other Ministers. However, in the event that he/she chose not to adhere, no judicial institution would hold the power to inquire into his/her unconstitutional actions. Another widely criticised feature in the post of the Presidency, which had largely been abused to the advantage of the President, has been immunity from legal suit. The President is exempted from being sued for any act or omission done in his/her official or private capacity, traditionally, since the Constitution of 1978. Presidential immunity had largely been criticised, as it allowed a President to do anything he/she wished – including murder in broad daylight – and still be exempt from legal suit. Such immunity is only exempt in his/her capacity as a Minister, in relation to an Election or in regard to impeachment. The same was upheld in the 19th Amendment to the Constitution Bill except for the fact that an impeachment no longer required the participation of the SC subsequent to the 19th Amendment to the Constitution. Impeachment has been a tedious process, and no President had ever bothered altering the provisions. It basically made the only major check on the President extremely complicated and impractical, hence making a President practically invulnerable. Despite the impracticality of it, a nearly successful attempt was made during the time of President Ranasinghe Premadasa, but failed after Premadasa prorogued Parliament and foiled the plans of the likes of Lalith Athulathmudali PC and Gamini Dissanayake PC. The process required an MP to propose a resolution with the signatures of more than half of Parliament to the Speaker. Upon being satisfied with the resolution, the Speaker would call on the SC to investigate the matter. If the SC, after having heard both the sides, finds the President guilty of committing the offence of treason, bribery, or any other major offences, they would permit Parliament to proceed with the impeachment motion. The motion would then require a vote in Parliament with not less than two-thirds of Parliament, including those not present, voting in favour of the impeachment. Only then could the President be removed. If the 19th Amendment to the Constitution Bill was passed, the process would not require the SC. A resolution proposed by an MP with the signatures of half of Parliament and a subsequent vote with a two-thirds majority would be sufficient to remove the President. Even the reasons stipulated in Article 38 of the Constitution were to be stripped off, hence making even a good President vulnerable and responsible to Parliament.   The Cabinet of Ministers   With the President ceasing to be the Head of the Government, the Prime Minister would be empowered to take up such a role. However, not much has changed in regard to the appointment of the Prime Minister. It had earlier been criticised that a President has wide discretion in appointing the Prime Minister, hence making a party victory at the General/Parliamentary Election irrelevant. It appeared that Sirisena did not wish to see a change in this, and would continue with this power, as he would be capable of appointing a MP subservient to him as the Prime Minister. In order to rectify this, the authors recommended that such a Prime Minister be appointed from the party with the majority in Parliament. However, the subsequent provisions in Section 12 of the 19th Amendment to the Constitution Bill compelled the President to abide by the advice provided to him/her by the Prime Minister or other Ministers. Another improvement in terms of the empowerment of Parliament is that the provisions in Article 47 of the Constitution permitting the President to remove the Prime Minister had been amended. The 19th Amendment to the Constitution Bill proposed that only a Minister, a non-Cabinet Minister or a Deputy Minister could be removed by the President, which too shall be on the advice of the Prime Minister. However, the 19th Amendment to the Constitution Bill did not empower the President to remove the Prime Minister under any circumstance. The only provision that appeared to impose a check by the President on the Prime Minister was extremely vague. The amendment proposed to Article 48 of the Constitution read: “On the Prime Minister ceasing to hold office by death, resignation or otherwise...”. The word “otherwise” was too vague to interpret but it certainly did not empower the President to remove the Prime Minister from office. However, an arbitrary removal was very possible and could be justified by an interpretation in such a manner, just as the President and the then-Government interpreted Constitutional provisions when removing Peiris PC from office. Another check on the President’s ability to appoint the Prime Minister at his/her discretion came in the form of an amendment proposed to Article 48(2) of the Constitution in Section 12 of the 19th Amendment to the Constitution Bill. It stated that if Parliament rejects the Statement of Government Policy or a Budget, Cabinet would automatically be dissolved. This however did not mean that Parliament too could be dissolved, as the said amendment proposed to the Constitution only allowed the President to dissolve Parliament after the conclusion of four years and six months. The President would be compelled to appoint a different Prime Minister with a different Cabinet instead. It could therefore be said that the party winning the most number of seats in the Parliament could maneuver the proceedings of the House in the event the post of the Prime Minister was granted to a different party. Thence, the President would be compelled to grant the post to the party with the majority in order to avoid further embarrassment.   The Commissions    The reinstating of independence to the Commissions (the Election Commission [EC], the Public Service Commission, the National Police Commission, the Audit Service Commission, the Human Rights Commission, the Commission to Investigate into Allegations of Bribery or Corruption, the Finance Commission, the Delimitation Commission, the National Procurement Commission, the University Grants Commission and the Official Languages Commission) in terms of how the appointments of officials are made to them, and providing these Commissions, formerly rendered impotent by the abolishing of the 17th Amendment to the Constitution, the power to conduct prosecutions and thereby expanding the scope of these Commissions, their functions and duties, was another major aspect that this 19th Amendment to the Constitution Bill sought to do. By repealing Chapter VIIA of the Constitution, in Section 10 of the 19th Amendment to the Constitution Bill, the proposed Article 41B of the Constitution stated that no person shall be appointed by the President as the Chairperson or Member of any of the Commissions specified, except on a recommendation by the CC. The CC shall, it stated, in making such appointments, endeavour to ensure the pluralistic character of the Sri Lankan society, including gender. The appointment of Judges/Justices to the benches of the superior, apex courts of the SC and the CoA, including respectively the CJ and the CoA President, was to be done by the CC after obtaining the views of the Minister of Justice, the AG and the President of the professional organisation representing the Bar (official and unofficial/private), the Bar Association of Sri Lanka (BASL). The seeking of the views of the BASL President was seen in certain quarters as a matter of contention. The CC was to also make the appointments of the AG, the Auditor General and the Inspector General of Police and those of the members of the Judicial Service Commission, excepting its Chairperson, who is the CJ. The removal of such persons, it is noted, must be done according to the manner specified in the Constitution and according to the law. In addition, there shall also be a Council of State, the function of which will be to make recommendations to the President and the Cabinet on certain matters. The exact number constituting the Council of State must be mentioned and the appointment of its Chairperson and Vice Chairperson must only be done with the consultation of the CC. Any changes to the composition of the Cabinet must be done by the Prime Minister in consultation with the Cabinet. A Bill passed by Parliament shall become the law only when the Speaker, and not the President, has given assent. The proposed amendment to Article 99(14) of the Constitution in Section 26 of the 19th Amendment to the Constitution Bill, contradicted the amendment proposed to Article 131A of the Constitution in Section 39 of the 19th Amendment of the Constitution Bill. Although the EC has the power to issue guidelines to any broadcasting or telecasting operator and proprietor or publisher of a newspaper in respect of the holding of any election or the conduct of a referendum, so as is necessary to ensure a free and fair election, the proposed amendment to Article 104(b)(6) of the Constitution where in order to be exempt from the above restrictions, the operator, proprietor, or publisher having to inform the EC within seven days from the date of the nomination of the candidates or from the date of the proclamation requiring a referendum, the policy of the said broadcasting or telecasting station or newspaper, to support any particular candidate or political party or independent group at the said election or to support or oppose the proposal put to the people at a referendum, should be deleted. In Section 54 of the 19th Amendment to the Constitution Bill, the sentence imposed by the proposed amendment to Article 156D(2) of the Constitution was excessive. Furthermore, the phrase “reasonable cause” is also subject to interpretation by the SC. Alternatively, it was also suggested that the compulsion to reveal details by an institution other than a court of law is a breach of the principles of natural justice and must therefore be deleted. It is also advised in this analysis that the President shall not hold any Ministerial portfolios. If however it is ultimately deemed as in the present context that the President too will hold certain Ministerial portfolios, then he/she should be held accountable in the said capacity. The National Executive Council which existed at the time, acting as an ad-hoc advisory body to the Cabinet, was recommended to be dismissed due to its arbitrary nature in standing outside the purview of the law and having no grounding or foothold in the Constitution.