Wijedasa R’s constitutional reform proposals

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by C.A.Chandraprema

Parliamentrian Wijedasa Rajapakshe has presented to Parliament two Private Member’s Bills for the amendment of the Constitution styled the 21st Amendment to the Constitution and the 22nd Amendment to the Constitution. The JVP has its own Private Member’s Bill in the form of the 20th Amendment to the Constitution. Though many people are under the impression that there are 19 amendments to our present Constitution, the actual number of amendments is 18. The 12th Amenndment to our Constitution was a Private Member’s Bill presented by Dinesh Gunawardene in 1987 but was never enacted. How a Bill that was never enacted got into the numbering scheme of the constitutional amendments is obviously because the 13th Amendment was introduced and passed while the 12th Amendment Bill was pending.

 If Wijedasa Rajapakshe’s Bills are passed into law, while the JVP’s 20th Amendment Bill is still pending, we will have another dud amendment on the list just like the 12th Amendment. No Private Member’s Bill for the amendment of the Constitution has been passed into law so far. Whether Private Members’ Bills are the best way to go about reforming the Constitution is itself debatable. A routine housekeeping constitutional amendment may perhaps be presented as a Private Member’s Bill but then again, such housekeeping matters are the responsibility of the government and even such Bills are best presented to Parliament as a Government Bill. In the case of major constitutional amendments it is always best that they be presented as Government Bills.

 When it is presented as a Government Bill, there is a guarantee that it would have been discussed at least within the government whereas a Private Member’s bill would incorporate at most the ideas of one person or one group. It can be argued that the 1972 Constitution was discussed to a much greater extent than the 1978 Constitution before being enacted. This despite the fact that the 1972 Constitution did not depart in any radical manner from the 1948 Constitution as far as the system of governance, and the system of elections etc were concerned. However, the 1978 Constitution did depart from previous Constitutions in a radical way, and yet there was little or no discussion before it was enacted and this lack of discussion and thinking showed glaringly! J.R.Jayewardene was considered an intellectual in his own right and he was a lawyer by profession. His brother was a respected lawyer and JRJ could always tap into a massive pool of legal talent in the country, yet his constitution making was abysmally inadequate.

 Ill-thought out constitution making

 It is certainly true that we are now saying this with the benefit of hindsight. But it was obvious even during JRJ’s tenure as President. The electoral system is of fundamental importance in any constitution. The electoral system determines the way governments are elected to rule the country. In 1978, the JRJ Constitution introduced a proportional representation system to replace the previous first past the post system. After introducing the new electoral system in 1978, it was changed twice before any election was ever held under that system. The changes thus made were also not minor adjustments, but major changes that altered the entire character of the electoral system.

The original Parliamentary elections system in the1978 Constitution did not have a preferential vote system. Each political party or independent group was to submit one nomination paper for each electoral district setting out the names in the order of priority that the candidates should be elected. The political parties were to have the right to change the order of priority of the names in the nomination paper even after they had been declared elected and to substitute the names of other persons in place of those who have died or ceased to be members of such party. Thus, this was a system that gave the political party complete power over its MPs. The Fourteenth Amendment, which was introduced in May 1988, before any Parliamentary election was ever held under the 1978 Constitution, introduced the preferential vote system whereby voters were entitled to indicate up to three preferences for candidates of the party they voted for.

Thus, it was not the political party hierarchy that would decide who would get a seat in Parliament but the voters themselves. This was undoubtedly a more democratic way of doing things, but the preferential vote system gave rise to a number of other problems such as candidates having to canvass for preferential votes across an entire district, some constituencies ending up without an identifiable representative in Parliament, big spenders unsuited to hold public office being able to skim preferential votes off the entire district to get into Parliament, and the institutionalization of corruption due to the heavy expenditure involved in getting elected. The preferential vote system was not the only change that the 14th Amendment introduced. It even changed the number of MPs in Parliament. Under the provisions of the original 1978 Constitution there were to be only 196 MPs. The Fourteenth Amendment increased the number of MPs in Parliament from 196 to 225 by the addition of the National List of 29 seats, which were to be apportioned among the parties contesting the election on the basis of the proportion of votes they polled nationwide.

So JRJ was making things up as he went along. The best part of it was that certain changes that were introduced through the 14th Amendment in May 1988 were repealed by the 15th Amendment passed in December 1988! This too was before any election had ever been held under the changes made by the 14th Amendment. The 14th Amendment, provided for electoral districts entitled to return more than 10 members to be divided into two zones and those entitled to return more than 20 MPs to be divided into three zones. Since there are no districts entitled to return more than 20 MPs, two zones would have been the maximum per district. Many districts would not have had zones at all because they were not entitled to return more than ten MPs. Each zone was to be a combination of two or more of polling divisions (constituencies/electorates). The number of MPs each zone was entitled to return was to be determined on the same basis as apportioning seats to each electoral district.

In December 1988, the Fifteenth Amendment changed the system of elections yet again and the provision in the Fourteenth Amendment to divide some districts into zones, was abolished. The most far reaching and damaging change in the elections system introduced by the Fifteenth Amendment was the reduction of the district cut off point from 12.5% to 5%. This enabled many small ethnic and religion-based political parties to proliferate and has undermined the ability of the national political parties to form stable governments. The reduction of the cut-off point was not a well thought out matter of policy but a part of the political horse trading that went on before the 1988 December Presidential elections.

The Fifteenth Amendment was signed into law just 48 hours before the Presidential election of 19 December 1988 so that President Premadasa could obtain the votes of the then newly formed Sri Lanka Muslim Congress.

Where JRJ erred

Thus what we learn from the history of the 1978 Constitution is how constitutions should never be made. This is why a Private Member’s Bill is never a good idea to make constitutional changes. Under JRJ, constitutional changes were always like Private Member’s Bills, decided on by a limited number of people. This introduced an element of inadequacy and even amateurishness into the whole exercise. Another example of this amateurishness is the Sixth Amendment that introduced in the wake of the July 1983 riots to act as a deterrent to separatism. Under the Sixth Amendment, every public officer and elected representative including Members of Parliament was expected to take an oath against separatism. In the case of public officers this oath had to be taken within one month of assuming office. In the case of Members of Parliament and other elected representatives, it had to be taken in order to be entitled to sit and vote in Parliament or the relevant representative body.

 The punishment for acting in contravention of these provisions will be civic disability for a period not exceeding seven years, forfeiture of the guilty person’s movable and immovable property other than such property as is determined by a Court to be necessary for the sustenance of such person and his family. If the person concerned is a Member of Parliament or a public officer, he will cease to hold such office. The Sri Lankan Sixth Amendment was inspired by the Indian 16th Amendment introduced to curb separatist tendencies in Tamil Nadu. However, JRJ’s Sixth Amendment is not a patch on the Indian Sixteenth Amendment and has not succeeded in curbing separatist propaganda in Sri Lanka. In contrast to the failure of the Sixth Amendment in Sri Lanka, the Indian Sixteenth Amendment has been a great success.

 The wording used in the two amendments is different. In Sri Lanka, the Sixth Amendment sought to prohibit the advocacy of a separate State within the territory of Sri Lanka. This left plenty of room for separatists to argue that what they were advocating is not separatism but the devolution of power or power sharing between the centre and the periphery. In contrast to this, the Indian Sixteenth Amendment did not seek to ban or prohibit anything. What the Indians sought to do was to obtain an oath from all public servants and elected representatives including Members of Parliament and the Members of State legislatures to the effect that they would uphold the ‘sovereignty and integrity of India’. The Indian wording is broad enough to encompass anything that may be interpreted by a court of law as being detrimental to the sovereignty and integrity of India. The Sri Lankan Sixteenth Amendment appears to have been drafted not by a political mind but by a lawyer who has read the Penal Code once too often. Punishments have been prescribed for supporting, espousing, promoting, financing, encouraging or advocating the establishment of a separate State within the territory of Sri Lanka either directly or indirectly, in or outside Sri Lanka.

 However, in the three and a half decades and more since the Sixth Amendment was promulgated, there have been plenty of people doing exactly that both within and outside Sri Lanka but nobody has ever heard of anyone who has been penalized under the provisions of the Sixth Amendment. In similar vein, a 101 examples can be given as to why there should be no haphazard constitution-making. The 13th Amendment had its own raft of issues which we will not go into due to the lack of space. The lesson we have to learn from all this is that constitution making should never be a piecemeal, haphazard exercise. This country has paid a heavy price due to haphazard constitution-making. A Private Member’s Bill therefore is not the way to go about effecting constitutional reform.

 However, such a Bill may provide an opportunity to debtate constitutional issues and that is an opening that Parliame-ntarian Wijedasa Rajapakshe has provided. The 21st Amendment to the Constitution is especially relevant in today’s political context. What he has suggested here is to amend article 99(6) so that the district cut off point to get candidates elected to Parliament is restored to the 12.5% it was before the ill advised Fifteenth Amendment reduced it to 5%. This is a proposal that should be looked at very seriously by the SLPP and the UNP and more by the latter than the former. Ironically, even though the 15th Amendment was introduced by a UNP President as a part of the horse deals that went on in the run up to the 1988 Presidential election, the biggest causalty of that Amendment was the UNP itself.

The 5% district cutoff point

The UNP may have won the 1988 Presidential election but the reduction of the district cut off point resulted in the proliferation or minority community based political parties that ate into the UNP’s traditional vote base among the minorities. When we look back at the year 1988, there is no denying that there was a dire need for the UNP to win that election or the country may have been overrun by the JVP. We have to acknowledge that fact. If the SLFP had won that election, they would not have been able to bring the JVP under control. Hence President Premadasa’s succumbing to Muslim Congress pressure to reduce the cut off point is understandable in the context of the time. However we have now experienced more than three decades of the 5% cut off point and we know that it has not made a positive contribution to the politics of this country. All that has resulted from it are a string of unstable governments. In fact after the 5% district cut off point was introduced, parties that win a Parliamentary election have got an absolute majority in Parliament only at two elections in 1989 and 2010.

Due to this fact, on many occasions during the past 30 years, the power of the executive presidency had to be used to literally buy the required number of MPs to form governments by handing out portfolios. Thus horse trading became a regular feature in the formation of governments after 1994. During that period which coincides with the period where the UNP was led by Ranil Wickremasinghe, the SLMC, ACMC and the Indian Tamil based Tamil Progressive Alliance made its appearance largely by eating into traditional UNP support bases among Tamils and Muslims.

The 22nd Amendment Bill that Parliamentarian Wijedasa Rajapakshe has put forward has as its objective, the truncation of the Constitutional Council’s powers over the appointment of judges of the superior courts and high officers of the state. He seeks to replace it with a system whereby the President can appoint the Chief Justice and the Judges of the Supreme Court and Judges of the Court of Appeal after consulting the Judicial Services Commission. In appointing public officials such as the Attorney-General, the Auditor-General, the Inspector-General of Police, the Parliamentary Commissioner for Administration (Ombudsman) and the Secretary-General of Parliament, the President would need to consult only the Prime Minister. This goes beyond the 18th Amendment which had a Parliamentary Council consisting of the Prime Minister, the Speaker, the Leader of the Opposition, a nominee of the Prime Minister who shall be a Member of Parliament and a nominee of the Leader of the Opposition, who shall be a Member of Parliament which had to be consulted in making the appointments mentioned above.

The other changes sought by Rajapakshe through the 22nd Amendment is that Article 43 will be amended to enable the President to hold the Defence portfolio and any other portfolio he wishes. He has also sought to amend Article 46 so that the maximum number of non-cabinet ministers and deputy ministers will be reduced from forty to thirty. He has also recommended the repeal of subsections 4 and 5 of Article 46 of the Constitution which enabled Parliament to increase the number of Ministers to be appointed in the event where a ‘national government’ was formed. Looking at Parliamentarian Rajapakshe’s 22nd Amendment Bill, it seems obvious that he has put this forwards not as a constitutional reform proposal but as a means of provoking a debate on the issued raised.

What the 21A and 22A Bills

do not cover

For example, even though he has proposed that the powers of the Constitutional Council be truncated when it comes to appointing judges to the superior courts and to high offices of the state, under the provisions of the proposed 22nd Amendment, the Constitutional Council would not be abolished because it would retain all the powers it presently has under the 19th Amendment when it comes to the appointment of the Election Commission, the Public Service Commission, the National Police Commission, the Human Rights Commission of Sri Lanka, the Commission to Investigate Allegations of Bribery or Corruption, the Finance Commission and the Delimitation Commission.

 Even though the 22nd Amendment Bill proposes changes to Article 43 to enable the President to hold the defence portfolio and any other portfolio he wishes, the most problematic aspect of the present article 43 which was introduced by the 19th Amendment whereby the President cannot appoint ministers or change their subjects without mandatorily obtaining the concurrence of the Prime Minister still remains intact. It is in fact this article 43 which has created a dyarchy and that issue has not been addressed. Even though he has proposed changes to Article 46, nothing has been done about the fact that this Article does not have a provision whereby the President can remove the Prime Minister even though the President can remove any other minister on the recommendations of the Prime Minister. Article 46 thus buttresses the dyarchy that was created by Article 43.

 One of the most important powers of the President that was taken away by the 19th Amendment was the power of dissolution of Parliament. Under the 19A, Parliament cannot be dissolved under any circumstances until the lapse of four and a half years unless Parliament passes a resolution by a two thirds majority to request the President to dissolve Parliament. Thus Parliament cannot be dissolved even if the government loses the annual budget vote repeatedly or even repeatedly loses votes of no confidence. In all such instances, it is only the government that will stand dissolved and not Parliament. No one has explained how a President is supposed to continue to rule the country with a Parliamentary government that has no majority to get a budget passed. Yet that is what is required of the President under the 19th Amendment.

 This provision preventing the dissolution of Parliament has the potential to create a situation of anarchy in this country, yet this has not been addressed in Rajapakshe’s 22nd Amendment. Thus what is obviously expected of these two Private Member’s Bills is to provoke a debate on constitutional reform. What was pledged in President Gotabhaya Rajapaksa’s election manifesto was a new constitution and not patchwork adjustments to the present one. It was said that a Parliamentary select Committee would be formed to formulate a new constitution after reviewing the executive presidential system, the electoral system and the provincial councils system. This can of course, be feasibly done only after the next Parliamentary election. What Parliamentarian Wijedasa Rajapakshe’s two Private Member’s Bills have done, is to kick off the debate on constitutional reform.

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