by C.A. Chandraprema Courtesy The Island

The chapter on constitutional reform in Sajith Premadasa’s presidential election manifesto should have got even more attention than it did, but at the time it was released about two weeks before the presidential poll, rival candidate Gotabhaya Rajapaksa’s citizenship issue and Ven. Ududumbara Kashyapa Thera’s fast unto death over the MCC affair had pushed everything else into the background and it was unlikely that an esoteric subject like constitutional reform would come to the people’s attention in a major way. This time, Sajith’s parliamentary election manifesto has ducked the issue of constitutional reform altogether. That denotes a certain kind of politics.  

Constitutional reform is one of the main platforms on which this election is being fought because the SLPP has been openly asking for a two thirds majority in order to effect constitutional reform. Sajith Premadasa’s presidential election manifesto was a complete and total capitulation to the TNA constitutional agenda. The absence of any constitutional proposals in the parliamentary election manifesto is obviously because the TNA is contesting separately and the SJB will not get any TNA votes at the parliamentary election. It’s frightening to see a main political party or at least the main faction of a mainline political party having a constitutional reform agenda predicated on winning votes. When votes are on offer, constitutional reform appears. When no votes are on offer constitutional reform disappears from the agenda.

Bartering constitutional reform for votes

President R.Premadasa made the same mistake of bartering constitutional reform for votes when he reduced the district cut off point in the proportional representation system from 12.5% to five percent in order to obtain the support of the Sri Lanka Muslim Congress at the presidential election of 1988. The Fifteenth Amendment to the Constitution was signed into law just 48 hours before the Presidential poll on 19 December 1988. The damage this has done to the UNP itself and the country is incalculable. This made narrow minded ethnic politics possible in this country and has eroded the UNP’s minority vote base. Today the SJB is making the same mistake once again and this time, the repercussions will be even more serious because what is being bartered for votes is the very structure of the Sri Lankan state.

The need for constitutional reform is not an academic exercise. It’s a necessity. No political party other than the SLPP will be able to rule this country effectively without constitutional reform. The 19th Amendment has created a permanent state of war between the President and the Prime Minister. Today, things seem quite normal because the President is the brother of the Prime Minister in an extraordinarily close knit family which also has well established working arrangements among family members in politics. If Gotabhaya Rajapaksa had been defeated at the presidential election and Sajith Premadasa had won, Sajith would by now be at war with Ranil Wickremesinghe.

After the 19th Amendment, the president cannot hold any ministry. Yet under Article 30(1) the president is the Head of the State, the Head of the Executive and of the Government, and under Article 42(3) he is also the Head of the Cabinet. Though he is the head of the Cabinet, he cannot hold any portfolio. The Constitution after the 19th Amendment does not expressly say that the President cannot hold any portfolio. What happened is that the 19th Amendment repealed the old Article 44(2) which said that the President may assign to himself any subject or function and shall remain in charge of any subject or function not assigned to any Minister. Under the 19th Amendment, the President and PM have to share authority over the appointment of the cabinet.

According to Article 43(1) the President can in consultation with the Prime Minister, where he considers such consultation to be necessary, determine the number of Ministers in the Cabinet and the assignment of subjects and functions to such Ministers. But when appointing MPs as Ministers, Article 43(2) requires the President to act only on the advice of the Prime Minister. Article 43(3) states that the President may at any time change the assignment of subjects and functions and the composition of the Cabinet of Ministers. However due to Article 43(2), even when acting under Article 43(3), it appears that the President has to seek the PM’s views if he is going to change the assignment of subjects to any individual Minister. The 19th Amendment created a situation where the President, Prime Minister and even the Speaker of Parliament were left holding parts of executive power. The Speaker presides over the Constitutional Council which has a role to play in making appointments to important state positions.

The 19th Amendment has also given the Prime Minister a kind of security of tenure. Under article 42(4) the President appoints as Prime Minister the Member of Parliament who is most likely to command the confidence of Parliament. Once appointed, the President according to the provisions of article 46(2) cannot remove the Prime Minister from office. The only way in which the PM can be removed is if he resigns or ceases to be a Member of Parliament. Because things look normal now, most people would be lulled into underestimating the disruptive effect of such provisions. What has saved the day are the working arrangements that has always existed within the Rajapaksa family. That will not be easily replicated anywhere else and constitutional reform should be a priority for all political parties not just the SLPP. In fact it could be argued that in an immediate sense, the SLPP is the political party that needs constitutional reform least.

The single most dangerous provision in the 19th Amendment is the complete prohibition on dissolving Parliament before the lapse of four and a half years unless a resolution is passed by parliament with a two thirds majority calling for an early dissolution. Now the President cannot dissolve Parliament at his own discretion until the lapse of four and a half years, and neither can parliament be dissolved in the event of repeated defeats of the budget, repeated defeats of the statement of government policy or the repeated passage of no confidence motions against the government. This in a situation where the system of elections more often than not produces a winner without a clear majority in parliament. Except on two occasions in the past three decades, governments have had to be cobbled together after a parliamentary election.

In 2001, when the parliamentary government cobbled together in that fashion by President Chandrika Kumaratunga began to fall apart, the President dissolved parliament and after the ensuring election, the UNP obtained the most number of seats and cobbled together a new government. This process ensured that the country did not descend into anarchy as the parliamentary government lost the ability to govern. Today that safety mechanism has been removed. If at some point into a government, its parliamentary majority falls apart, the President is required to somehow cobble together a majority and continue till the completion of four and a half years – an impossible task.

Housekeeping issues

There are many housekeeping issues in the 19th Amendment that need to be sorted out as well. If anyone asks a member of the Elections Commission whether they are responsible to Parliament in the discharge of their duties, they wouldn’t know. Article 41B(6) states that the Election Commission is not responsible and answerable to Parliament while Article 104B(3) says it is responsible and answerable to Parliament. If this goes before the Supreme Court, the only way that the SC will be able to decide between Article 41B(6) and Article 104B(3) is perhaps by tossing a coin! Everyone has heard of the situation where the membership of the Elections Commission is three and the quorum is also three but if the Chairman is absent, the remaining members can elect a Chairman and hold a meeting.

There are means of removing members of the independent commissions in the event of misconduct. Even in the case of the members of the Judicial Services Commission, which is made up of the Chief Justice and the two most senior Judges of the Supreme Court, Article 111E(6) states that the President may, with the approval of the Constitutional Council, and for cause assigned, remove from office any member of the Commission. A similar provision exists for the removal of the members of the Police Commission. The way that members of the Elections Commission can be removed is through an order of the President made after an address of Parliament supported by a majority of the total number of Members of Parliament including those not present.

Ideally it should be possible to remove a member of the Constitutional Council with a fixed term of three years by an address of Parliament similar to the above. But the only way that a member of the Constitutional Council with a fixed term can be removed according to Article 41A(8) is if both the Prime Minister and the Leader of the Opposition form the opinion that such member is physically or mentally incapacitated and is unable to function further in office. Instead of giving the decision making power to remove an errant member of the Constitutional Council to a wider body, it has been given to just two individuals who also sit in the Constitutional Council.

Even if the two do agree, the Constitution specifies that a member of the Constitutional Council can be removed only for one reason – that such member is physically or mentally incapacitated and is unable to function further in office – he cannot be removed for any other reason. If for example a member of the CC openly engages in politics and undermines the status of the CC, he cannot be removed even if the PM and Opposition Leader both agree that such conduct is unbecoming of a member of the CC and that he should not be serving on that body.

Tales of the independent

commissions

The two main political parties have fallen victim to the independent commissions created initially by the 17th Amendment and reestablished by the 19th Amendment. Many years ago, former UNP Minister Karunasena Kodituwakku recounted to this writer how he had fallen victim to the 17th Amendment when he was the Minister of Education in the UNP government of 2001-2004. When the UNP was re-elected to power in 2001 after seven years, teachers who had been politically victimized by the previous government had appealed to Minister Kodituwakku for relief. So a committee was set up in the Ministry of Education for this purpose and 12,000 applications were received. In the case of about 6,000 of these applicants the Ministry held interviews to ascertain whether these claims were genuine and to decide on what recommendations should be made.

 While this process was going on, the Public Service Commission had sent a directive to the Secretary to the Ministry of Education saying that the ministry did not have the power to do this and that any disciplinary, dismissal or transfer of any public servant in the central government is a matter for the Public Service Commission and therefore all files had to be sent to the PSC. The education ministry had no option but to send the files to the PSC. The Commission went through the files and began notifying the petitioners of their conclusions in Sinhala saying “On the face of it, it does not appear that you have been subject to political victimization”  

Ultimately, because of the 17th Amendment and the Public Service Commission set up under it, none of the politically victimized teachers had got any redress from the UNP government. Naturally everybody assumed that this was due to the then Prime Minister Ranil Wickremasinghe’s ‘insensitivity’ to the travails and tribulations of the party rank and file. The independent Public Services Commission which had been set up under the 17th Amendment was a new body at that time and people were not aware that it was functioning and the UNP government of the time also did not do anything to make people aware that such decisions were no longer in the hands of the ruling party but in the hands of some unelected individuals completely unknown to the public. The independent commissions have thus made a contribution to the present split that we see in the UNP.

On the other side of the political divide, when Prof. Tissa Vitarana was the minister of science and technology in the UPFA government that succeeded the above mentioned UNP government, he wanted to set up a support service for small and medium enterprises in the rural sector in the form of the Vidatha programme manned by a science graduate with a computer operator supported by a field officer with the express purpose of helping existing small and medium enterprises and also those wishing to become entrepreneurs. When he put up this proposal, it went to the Public Service Commission and it was stuck there. Prof.Vitarana had met the PSC chairman three times and explained the importance of this programme to no avail. Officials haggled over matters like salaries and the whole project was delayed for over one and a half years. What the UPFA learned from that experience was that those who don’t understand that governments have to deliver development and progress to the people can get into these independent commissions and even buckle the work of the government.

A lot of things in the present Constitution needs to be rethought. The two or even three centers of executive power, the irrational and dangerous restrictions on the dissolution of Parliament, the Constitutional Council with members not answerable to anyone, the independent commissions which are a drag on the functioning of the government, and the practice of holding  politicians  responsible while at the same time denying them the power to fulfill those responsibilities, all have to be thought over afresh.