Sri Lanka – Keeping parts of 19a in 20th amendment
The 19a has shown that making a constitution or even an amendment should not be done in a hurry, with intent to stifle opposition, embrace undue powers, grab power, squash the people’s rights & freedoms and ignorantly thinking that the insidiously plugged proposals will not one-day backfire. Anything done with ill-will & insincerity will certainly rebound. This is exactly what happened to the architects of 19a. Therefore, let us not be in any hurry to completely nullify existing constitution. In reality, there are only a handful of adverse aspects that impede democratic norms and only these should be done away with. The US has 27 amendments to its constitution (in 231 years) while India has 104 amendments to its constitution (71 years). 16 out of 19 amendments to Sri Lanka’s constitution was done between 1978 & 1988 by the very political party that drafted it. The 17thamendment was in 2001, 18thamendment in 2010 and 19thamendment in 2015. So the 20thamendment in 2020 is welcome but it must be sensible, it must be relevant to the future and must not commit the same blunders that 19tha architects committed.
The 19a Bill was passed in Parliament on 28thApril 2015 with a 2/3 majority after 174 amendments. 212 voted in favor, 1 abstained, 10 were absent and 1 voted against. We mention with admiration the sole person who voted against it – Admiral Sarath Weerasekera. With so many amendments we would like to know whether the 19a Bill passed was the same as what was debated in Parliament on 16thMarch 2015 or was it a different version?
A political party in power as government should not think they can tweak the constitution for their benefit or tweak it to the disadvantage of their opposition. The good part of democracy is that Governments come and go but the Nation and its resources must remain intact. Therefore rule number 1 at all times should be that any attempt to amend or insert any new clause or even change the existing constitution should only be based if there is a serious need to and if there is no alternate method.
We know that 19a came with political vengeance and as party of the regime change bogey. The original draft of 19a submitted by Ranil W to Parliament virtually abolished the executive presidency transferring the President’s power to himself as PM. It was clear what the plan behind 19a was.
- Term of President & Parliament to 5 years (Article 30(2) Clause 3)
- Denial of dual citizens to be representatives in Parliament or Public Service (Anyone serving nation should have allegiance to only 1 country not 2) – citizens holding dual citizenship is not an issue
- 2 consecutive term limit for a Presidential Term (Article 31(2) – Clause 4) – this doesn’t deny anyone who had been President to contest again but not 3 times in a row.
- Article 85(2) which was repealed by 19a – that removed President’s powers to put to referendum any Bill (not a constitutional amendment) rejected by Parliament.
- Article 43(2), 44(1), 45(1) and 46(3)(a) that demands the President to act on advice of the PM when appointing or removing cabinet, non-cabinet or even deputy ministers.
- Cabinet to 30 (Government of 30 Ministers)
- Powers of President to assign to himself any subject or function not assigned to any other Cabinet Minister (which was removed by 19a clause 50a 51) but as commander of the armed forces – the President should be allowed to keep the subject of Defense.
- Immunity of the Supreme Court on Fundamental Rights will not apply to official acts of the President.
- Attorney General and the Inspector General of Police should retire on reaching the age of 60 years.
- Clauses that have diluted the President’s Powers without asking the People
- Restriction to dissolve Parliament – but give provisions on which President can dissolve Parliament after 1 year.
- Remove provision for National Government
- Remove age restriction on contesting Presidency but put some criteria to contest
- Article 46(2) Clause 9 that prevents President removing the PM at his discretion
- Clause that says if post of President falls vacant before term of office ends, MPs who can generate most support can propose someone to be President (this is encourage buy overs)
- Article 43(1), 44(2) that says President can consult PM only if he/she considers it necessary to determine number of cabinet ministers/non-cabinet ministers & subjects assigned to them.
National Unity Government clause that allowed for 45 cabinet ministers and 55 non-cabinet & deputy ministers
- Clause that can remove appointees to Independent Commissions with criteria for removal
- number of Deputy Ministers & their functions
- limit to number of non-Cabinet & Deputy Ministers.
- Clause binding President/Parliament/Judiciary to uphold the constitution which provides them powers that is DELEGATED to them by the inalienable sovereignty belonging to the People
REVISIT AREAS of 19A that are CONFUSING & CONTRADICTORY
Article 104B(5)(c) clause 26 – Powers to the Election Commission and remove any controversial clauses giving powers that can be misused by Commission.
Who is to be Head of Cabinet? – Article 42(3) proposed PM to be head of Cabinet
Who will determine number of Ministers/Ministries & Assigning of subjects? – Article 43(1) proposed PM to determine number of Ministers & Ministries & assignment of its subject & functions
– Article 43(3) proposed PM to change assignment of subjects & recommend to the President changes in composition of the Cabinet
– Article 44(2) proposed the PM to determine subjects & functions of non-cabinet Ministers
– Article 44(3) proposed the PM to change subjects assigned to non-cabinet Ministers
– Article 44(5) proposed that any cabinet minister at the request of the PM could by gazette delegate power, functions to any minister by cabinet minister.
Article 46(2) Clause 9 denies President powers to remove PM at his discretion – add on what grounds the President can remove the PM
19a empowered 10-member Constitutional Council to set up independent commissions.
The inclusion of the 3 civil society members in the light of their controversial selections should be removed as they are NOT ANSWEREABLE to the PUBLIC while the other 7 are.
Instead 3 members of the Opposition Parties should be appointed as the Public can voice through them their objections.
However, there should also be provision for Public to submit their opinions for and against nominees before they are appointed. Here registered civil society organizations can be allowed to make their formal submissions to the Constitutional Council (similar as how UN systems allows civil society/NGOs to make submissions)
This new criterion should be included into any amendments of 19a.
SOME ADDITIONAL SUGGESTIONS
Remove ONLY adverse aspects in 13a
Sri Lanka must remain UNITARY& therefore powers to be DECENTRALIZED not DEVOLVED under a quasi-federal format that currently exists.
(Powers to be decentralize & not devolved)
Provincial Councils to function in a decentralized model not devolved model.
Return Land & Police powers to Centre – all National Assets/Resources will remain under Centre.
All archaeological historical, nationally important sites to remain under Central Govt
Calls to bring hate speech must include any religious texts that include clauses to defeat & destroy their enemies.
Electoral system & People’s Representatives
In terms of People’s wishes, this comes right on top for there is an urgent need to revisit how People elect their representatives to Parliament. The PR system currently in practice is an absolute failure given the disproportionate representation taking place.
A party getting 250,000 votes is able to send 10 MPs to Parliament but a party getting similar number of votes has no seat & only 1 national list seat. This cannot continue. The minimum entry requirement of obtaining 12.5% to be eligible to enter Parliament must be re-implemented from its current 5% allowing ethno-religious parties to become kingmakers and hold the country to ransom with their personal bargaining & demands of plum portfolios.
The People’s sovereignty cannot be abused & manipulated by those People vote to represent them.
Therefore, the present Government given a mandate by the People to secure and safeguard the country must call for public proposals and opinion on their suggestions for a new electoral representation system & have these made publicly available for all to see WHILE the Parliament can and should also appoint Committees to present their proposals too. The final decision must be made by the Election Commission.
Shenali D Waduge