{"id":43307,"date":"2015-04-21T12:32:15","date_gmt":"2015-04-21T18:32:15","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=43307"},"modified":"2015-04-21T05:25:16","modified_gmt":"2015-04-21T12:25:16","slug":"the-proposed-19th-amendment-to-the-constitution-whos-purpose","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2015\/04\/21\/the-proposed-19th-amendment-to-the-constitution-whos-purpose\/","title":{"rendered":"The Proposed 19th Amendment to the Constitution- Who’s Purpose"},"content":{"rendered":"

\u00a0Manohara R. de Silva<\/em><\/span><\/h2>\n

The declared objective of the 19th Amendment was to abolish the Executive\u00a0Presidency and to establish Independent Commissions\u201d as it was supposed to have\u00a0been\u00a0 done under the 17th Amendment. The 19th Amendment Bill sought to transfer\u00a0almost all of the powers of the President to the Prime- Minister.<\/p>\n

The Supreme Court has however declared against the abolition of the Executive\u00a0Presidency in this manner, without resorting to a Referendum. The Supreme \u00a0ourt\u00a0has expressed its views as follows;<\/p>\n

“The People in whom sovereignty is reposed having made the\u00a0President as the Head of the Executive in terms of Article 30 of the\u00a0Constitutionentrusted in the President, the exercise of the Executive\u00a0power being the custodian of such power. If the people have\u00a0conferred such power on the President, it must be either exercised\u00a0by the President directly or someone who derives authority from\u00a0the President. There is no doubt that Executive powers can be\u00a0distributed to others via President. However, if there is no link\u00a0between the President and the person exercising the Executive\u00a0power, it may amount to a violation of mandate given by the people\u00a0to the President.<\/p>\n

If the inalienable sovereignty of the people which\u00a0they reposed on the President in trust is exercised by any other\u00a0agency or instrument who do not have any authority from the\u00a0President then such exercise would necessarily affect the sovereignty\u00a0of the People. It is in this backdrop the Court in the Nineteenth\u00a0Amendment Determination came to a conclusion that the transfer,\u00a0relinquishment or removal of a power attributed to one organ of\u00a0government to another organ or body would be inconsistent with\u00a0Article 3 read with Article 4 of the Constitution.<\/p>\n

Though Article 4\u00a0provides the form and manner of exercise of the sovereignty of the\u00a0people, the ultimate act of decision of his executive functions must\u00a0be retained by the President. So long as the President remains the\u00a0Head of the Executive, the exercise of his powers remain supreme or\u00a0sovereign in the executive field and others to whom to such power is\u00a0given must derive the authority from the President or exercise the\u00a0Executive power vested in the President as a delegate of the\u00a0President. The President must be in a position to monitor or give\u00a0instructions to others who derive authority from the President in\u00a0relation to the exercise of his Executive power. Failure to do so would\u00a0lead to a prejudicial impact on the sovereignty of the People” (vide\u00a0page 9 and 10).<\/p>\n

The views so expressed leave us without doubt that the power of the President to\u00a0appoint the Cabinet of Ministers and to govern this country through such Cabinet\u00a0shall remain with the President. Although the Supreme Court without any ambiguity\u00a0expresses its views in this manner, some of the sections that give the Prime- Minister\u00a0Executive Power has not caught the attention of the SC. For instance, Article 43(2)\u00a0and 43(3)which gives the sole discretion to the Prime- Minister as to who should be\u00a0appointed to the Cabinet of Ministers. This probably is an omission, which may need\u00a0rectification.<\/p>\n

The spontaneous response of the Government was that it would not pursue with the\u00a0transfer of power from President to Prime- Minister as sought to be done by the Bill,\u00a0but would proceed with the rest of the Provisions.\u00a0Disqualifying the Former President and His Family\u00a0The 19th Amendment not only seeks to abolish the Executive Presidency and to\u00a0establish these so called Independent Commissions\u201d through the mechanism of a\u00a0Constitutional Council, but also introduces three specific disqualifications that would\u00a0apply to a prospective candidate contesting a future Presidential\/Parliamentary\u00a0Election, namely, that,\u00a0No person who has been twice elected to the office of President can\u00a0thereafter be reelected to the office of President (Amendment to Article\u00a031(2) and 92(2)(c));<\/p>\n

    \n
  1. To increase the threshold age to contest a Presidential Election from 30 to 35\u00a0(Amendment to Article 92(1)(a));<\/li>\n<\/ol>\n
      \n
    1. Disqualify dual citizens from contesting a Parliamentary Election (Article 91\u00a0(1)(d)(xiii)).<\/li>\n<\/ol>\n

      These three clauses will effectively disqualify Mahinda Rajapakse and Namal\u00a0Rajapakse (born on 10th April 1986) from contesting the next Presidential Election\u00a0and, Gotabhaya and Basil Rajapakse from contesting a Parliamentary Election, if they\u00a0are in fact dual citizens. This type of legislation is ad hominem, \u00a0irected against\u00a0particular persons, which would certainly not be considered as good law.<\/p>\n

      “Independent Commissions’<\/p>\n

      It would be interesting to examine whether the 19th Amendment would transform\u00a0these existing commissions to independent entities. When the 17th \u00a0mendment was\u00a0enacted in 2001, at the initiative of the UNP and JVP, removing the powers of the\u00a0President with regard to appointment to these numerous commissions and other\u00a0high post appointments and placing it in a body called the Constitutional Council\u201d, it\u00a0was thought (at least by those who supported it), that the holders of these high\u00a0offices would be more independent.<\/p>\n

      The 19th Amendment seeks to introduce the same provisions of the 17th Amendment\u00a0with minor modifications. Let’s look at the compositions of the Constitutional\u00a0Council (CC). The CC consists of ten members. 3 of them hold office ex- officio,\u00a0namely the Prime- Minister (PM), the Speaker, and the Leader of the Opposition\u00a0(LO). Out of the balance 7, five are nominated jointly\u00a0 by the PM and the LO. The\u00a0sixth is appointed by the President and the other appointed by agreement of the\u00a0majority of the MPs who do not belong to the political parties the PM and LO\u00a0represents (hereinafter referred to as the ‘Minor Parties’). It is important to note\u00a0that one member is appointed by members of Parliament of minor parties by\u00a0agreement. However, none of the MPs of the two major political parties can\u00a0participate in appointing a single member to the CC.<\/p>\n

      The Government owes a duty to the public to disclose the reasons why it does not\u00a0want the Members of Parliament of the two major political parties, to have any say\u00a0in the process of appointments. More so, for the reason that minor parties are\u00a0mostly ethnic based and representing minority communities, whilst the MPs of the\u00a0two major political parties are from the majority community. When the Amendment\u00a0provides for Members of Parliament of minor parties to appoint one member to the\u00a0CC by agreement, that would mean that all the Members of Parliament of minor\u00a0parties would have the opportunity of proposing any qualified person of their choice\u00a0for one slot in the CC and taking a vote to decide who they wish to nominate for that\u00a0slot.<\/p>\n

      The Government could have easily made provisions for Members of Parliament of\u00a0major political parties also to nominate five persons in a similar manner by\u00a0agreement, after giving the said MPs an opportunity of proposing suitable\u00a0candidates for the five slots allocated. Instead, the power of nomination is given to\u00a0the Prime- Minister and Leader of Opposition. Therefore, when these Members of\u00a0Parliament are voting in favour of the 19th Amendment, they should be conscious\u00a0that they have abdicated their power to two Members of Parliament who are\u00a0holding the Office of PM and LO.<\/p>\n

      The Amendment further provides that when nominating the said five members, it\u00a0should ensure that the CC reflects the pluralistic character of the Sri Lankan society.\u00a0Which means that, if the Prime-Minister or Leader of the Opposition is Sinhalese,\u00a0then, the said five members should be out of the seven minority ethnic groups \u00a0identified by the Department of Census and Statistics, namely, Sri Lanka Tamil,\u00a0Indian Tamil, Sri Lanka Moore, Burger, Malay, Sri Lanka Chetti, and Bharata.<\/p>\n

      Therefore, at any given time, a majority of the voting members of the CC will\u00a0necessarily be from the minority communities.\u00a0It is true that, the Amendment provides for the Prime- Minister and the Leader of\u00a0the Opposition to nominate five persons to the Constitutional Council after\u00a0consulting leaders of political parties and independent groups represented in\u00a0Parliament. The PM and the LO nominate the aforementioned five members not in\u00a0their capacity as leader of their respective political parties, but as the holders of\u00a0office of PM and LO. Further, although they are required to consult leaders of other\u00a0political parties, they’re not obliged to concur with their views. In reality, these five\u00a0members will be nominated at the sole discretion of the PM and LO. Out of the 10\u00a0members of the CC, the Speaker who is the Chairman, does not have a vote, other\u00a0than a deciding vote in the event of an equality of votes at any time. Therefore,\u00a0decisions will be taken by the nine members other than the Speaker. Thus, 5 out of 9\u00a0members will decide all decisions of the CC. Out of the said nine members,\u00a0 seven\u00a0members will constitute the PM, LO, and the nominees of the PM and LO. Hence, it\u00a0is the views of the PM and LO that will prevail and not the will of the Members of\u00a0Parliament. PM represents only the people of one district. So is in the case of the LO.<\/p>\n

      How could the choice of the PM and LO be better than the choice of the President\u00a0who is elected by the majority of the people of this country? In practice what would\u00a0happen is that the PM and LO will nominate two each of their personal choice and it\u00a0is only the 5th that they need to agree between them. What we are going to do by\u00a0the 19th Amendment is to substitute the wish of\u00a0 PM and LO who represents two\u00a0districts out of 24 districts in this country, in place of the President who is elected by\u00a0the majority of the people of the whole island.<\/p>\n

      The present Parliament consists of UNF (60 members), UPFA\u00a0 (144 members), TNA\u00a0(14 members) and DNA (7 members). Accordingly, the Members of Parliament that\u00a0will be able to participate in the nomination of members to the CC\u00a0 will be<\/p>\n

      1. Ranil\u00a0Wickramasinghe (PM)<\/p>\n

      2. The MP who will be appointed as the Opposition Leader<\/p>\n

      3.\u00a0The 14 members of TNA\u00a0 4. The 7 MPs of the DNA.<\/p>\n

      Therefore, the 60 members from\u00a0the UNF and the 144 members of the UPFA (other than the PM and LO) will not be\u00a0able to participate in nominating a single member to the CC. If the leader of the TNA\u00a0becomes the Opposition Leader, being the largest political party in the opposition at\u00a0present, (assuming PM and LO nominate jointly) 6 out of the nine voting members of\u00a0the CC will be nominated according to the wish of the TNA. The DNA being\u00a0supportive of the UNP, the PM will have 8 out of the nine voting members in\u00a0deciding any matter before the CC. Therefore it is abundantly clear, that the net\u00a0result of the 19th Amendment is to take away the right of the Members of\u00a0Parliament of the SLFP and JHU, having any say in making appointments to the CC\u00a0and vesting the sole discretion in the hands of the PM. It is also important to\u00a0remember that all the members who are presently holding office in these\u00a0Commissions will ipso facto cease to hold office with the enactment of the 19th\u00a0Amendment, and the PM will be able to make the necessary appointments for the\u00a0next few years in a manner favourable to him. It is illogical to assume that the\u00a0appointees of Prime- Minster Wickremasighe will be more independent than the\u00a0appointees of the President. There appears to be a sinister motive behind this\u00a0exercise. It has always been the view of the TNA and their predecessors to deprive\u00a0the majority community of their legitimate right of governance. In the Pre-Colonial\u00a0period, the fifty-fifty demand was placed before the Soulbury Commission to achieve\u00a0that end. The TNA has now, half a century later, been able to re-inject their thinking\u00a0to the Constitutional structure through the 19th Amendment.<\/p>\n

      In South Africa, nominations to high posts are approved by the legislature consisting\u00a0of all MPs represented in Parliament. Section 193(4) and (5) of the South African\u00a0Constitutionreads as follows;<\/p>\n

      “193(4): The President, on the recommendation of the National\u00a0Assembly, must appoint the Public Protector, the Auditor- General,<\/p>\n

      and members of-<\/p>\n

        \n
      1. a) the Human Rights Commission;<\/li>\n
      2. b) the Commission for Gender Equality; and<\/li>\n
      3. c) the Electoral Commission.<\/li>\n<\/ol>\n

        193(5): The National Assembly must recommend persons-<\/p>\n

          \n
        1. a) nominated by a Committee of the Assembly proportionally composed\u00a0of members of all parties represented in the Assembly; and<\/li>\n<\/ol>\n
            \n
          1. b) approved by the Assembly by a resolution…”<\/li>\n<\/ol>\n

            There seems to be a deliberated move to prevent the majority of MPs representing\u00a0the majority community from participating in this process. The President is elected\u00a0by over 50% of the voters in this country. How can the appointees of TNA, DNA, PM,\u00a0LO, (excluding all other MP\u2019s) be more independent\u201d than the appointees of the\u00a0President?<\/p>\n

            Although the supporters of the 19th Amendment often speak of good governance\u00a0and an independent Public Service, the 19th Amendment does exactly the opposite\u00a0with regard to provincial governance . The proponents of the Amendment boast of\u00a0an Independent National Police Commission, but the Provincial Police Commission is\u00a0not so. Item 11:1 of Appendix 1 of the Provincial List states that the DIG of the\u00a0Province who heads the Provincial Police Force shall be responsible to and under\u00a0the control of the Chief- Minister\u201d of the Province. The Constitutiondoes not say that\u00a0the IGP is under the control of the President. Even if that is so the powers of the\u00a0President is clipped by the creation of the National Police Commission (NPC), but the\u00a0provincial police force headed by the DIG will be under the control of the Chief-\u00a0Minister.<\/p>\n

            The 19th Amendment provides that the NPC shall not in the exercise of its\u00a0powers derogate from the powers and functions assigned to the Provincial Police\u00a0Service Commission (Proposed Article 155G(1)(b)). Whilst the 13th and 19th\u00a0Amendments make the center weak, it strengthens the Chief- Minister enabling him\u00a0to exercise control over the provincial police force and the national police force\u00a0operating in his province.<\/p>\n

            The National Police Commission is responsible for appointments promotions,\u00a0transfers, disciplinary control and dismissal of all Officers of the National Police\u00a0Force. Therefore the President will no longer through the IGP be able to\u00a0confidentially place even a Police Intelligence Officer in a place he seems\u00a0appropriate. Such decisions will be determined by the seven members of the NPC.<\/p>\n

            However, the Provincial Police Commission is under the total control of the Chief-Minister. Out of the 3 members of the Provincial Police Commission one is an\u00a0appointee of the Chief- Minister and the DIG who heads the Provincial Police\u00a0Commission is under the control of the Chief- Minister (vide clause 11:1). Therefore,\u00a02 out of the 3 members of the Provincial Police Commission are controlled by the\u00a0Chief- Minister. Item 11 states that not only the Police Officers of the Provincial\u00a0Police but also the Police Officers of the National Police should function under the \u00a0direction and control of the DIG who in terms of 11.1, refers to above function under\u00a0the direction and control of the Chief- Minister. This provision will completely negate\u00a0the powers of the center to have the Police under their control. The cumulative\u00a0effect of the 13th and 19th Amendments is nothing but a national catastrophe. Even if\u00a0the NPC places any National Intelligence Officer in a Province, he will have to\u00a0function under the control of the DIG, who in turn is under the control and direction\u00a0of the Chief- Minister.<\/p>\n

            The 19th Amendment has created a new commission to be known as the National\u00a0Procurement Commission. Although the proposal to have such a procurement\u00a0commission is commendable, the only thing that they are empowered to do is to\u00a0monitor and report to the appropriate authorities\u201d. The Bill does not interpret the\u00a0term appropriate authorities\u201d and therefore we do not know who this \u2018appropriate\u00a0authority\u2019 is. In any event, if there is such an authority, do we need a National\u00a0Procurement Commission in the first place? This Commission has no power other\u00a0than reporting to the appropriate authority to take action to reverse a wrong\u00a0decision taken by a Procurement Committee. Therefore, this proposal will not serve\u00a0the purpose it purports to establish.<\/p>\n

            The 19th Amendment also proposes an Amendment to Article 154R. This Article as\u00a0amended by the 19th Amendment provides for a Finance Commission consisting of\u00a0the Governor of the Central Bank, the Secretary to the Treasury, and 3 other\u00a0members to represent the 3 major communities. Therefore, \u00a0otwithstanding the\u00a0ethnicity of the Governor of the Central Bank and the Secretary to the Treasury, the\u00a03 other members should belong to the three communities. Therefore, the ethnicity\u00a0of the Governor of the Central Bank or the Secretary to the Treasury will most\u00a0probably determine which community would be in control of the Finance\u00a0Commission. The present Governor of the Central Bank is from a minority\u00a0community. Whether the Secretary to the Treasury in a future administration will\u00a0also be from the minority community is anybody\u2019s guess. Therefore, under the\u00a0present arrangement a future Finance Commission can be under control of a\u00a0minority community. The Finance Commission exercises the power of\u00a0recommending the allocation of funds to respective provinces. Whilst it is not\u00a0desirable for a Constitution to provide for ethnic representation in such an\u00a0important body, introducing ethnic and racial considerations would precipitate\u00a0serious consequences if these\u00a0 members see it fit to act in\u00a0 the interest of their\u00a0respective communities and not in the larger interest of the people in this country.<\/p>\n

            In the previous 17th Amendment, it was provided that 3 out of the 5 persons\u00a0nominated by the PM and LO be from the respective minority communities, “to\u00a0represent minority interests”. Advisedly, this particular phrase has been removed\u00a0from the 19th Amendment. It would be in the best interest of all citizens of this\u00a0country, if when drafting constitutional provisions or any other law, we could refrain\u00a0from infusing racial and religious considerations.<\/p>\n

            Manohara R. de Silva<\/p>\n","protected":false},"excerpt":{"rendered":"

            \u00a0Manohara R. de Silva The declared objective of the 19th Amendment was to abolish the Executive\u00a0Presidency and to establish Independent Commissions\u201d as it was supposed to have\u00a0been\u00a0 done under the 17th Amendment. The 19th Amendment Bill sought to transfer\u00a0almost all of the powers of the President to the Prime- Minister. The Supreme Court has however […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[12],"tags":[],"class_list":["post-43307","post","type-post","status-publish","format-standard","hentry","category-forum"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/43307","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=43307"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/43307\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=43307"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=43307"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=43307"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}