By C.A. Chandraprema
The draft of the 20th Amendment has now been Gazetted. Formulating a completely new constitution instead of making interim amendments to the existing one, is undoubtedly what most prefer. However, there are one or two constitutional issues which cannot wait until a new constitution is drafted and have to be attended to immediately. The first such issue pertains to a matter that has gained very little public attention but was exclusively highlighted in this column in July this year. This has to do with the composition of the all-important Constitutional Council which has the final say in making appointments to high state positions such as that of the Attorney General and Judges of the Supreme Court and independent commissions such as the Elections Commission and the Public Services Commission.
The Constitutional Councils appointed in 2015 and 2018 were aberrations because the yahapalana government made up of the UNP and the SLFP and the yahapalana opposition made up of the TNA and the JVP shared all the positions on the Constitutional Council among themselves. The CC established in 2018 is set to continue till October 2021. If this issue is not addressed immediately, the defeated yahapalana opposition will have complete and total control over the process of making appointments to important state positions and independent commissions until October 2021.
According to the 19th Amendment, the Constitutional Council is made up of the Speaker (Chairman) the Prime Minister, the Leader of the Opposition, one Member of Parliament appointed by the President, five persons appointed on the nomination of both the Prime Minister and the Leader of the Opposition of whom two persons shall be Members of Parliament, and one Member of Parliament nominated by agreement of the majority of the Members of Parliament belonging to political parties, other than the respective political parties to which the Prime Minister and the Leader of the Opposition belong.
Yahapalana Constitutional Council
Accordingly, the present Constitutional Council is composed of the following persons. Speaker Mahinda Yapa Abeywardana (Chairman), Prime Minister Mahinda Rajapaksa, Opposition Leader Sajith Premadasa, President’s nominee Mahindananda Aluthgamage, nominees of the PM and the Opposition Leader R. Sampanthan, Thalatha Atukorale, Naganathan Selvakumaran and Javed Yusuf. Two seats are vacant. Bimal Ratnayake who represented the smaller political parties in Parliament was defeated at the Parliamentary election and has not been replaced, and Jayantha Dhanapala who resigned from the CC has not been replaced. If we assume for the moment that the two vacancies will not be filled, we see that of the remaining eight members, no less than five are yahapalanites and only the Speaker, the PM and the President’s nominee represent the ruling SLPP led coalition.
R. Sampanthan, Thalatha Atukorale, Naganathan Selvakumaran and Javed Yusuf are on the CC by virtue of the fact that they were appointed in 2018 by the yahapalana government and yahapalana opposition working in collusion. Sampanthan was appointed to the Constitutional Council in April 2019 as a concession granted to him when Mahinda Rajapaksa became the Opposition Leader. Thalatha Athukorale was appointed to the CC earlier in 2018 as one of the five nominees who are appointed jointly by the PM and the Opposition Leader. Now that they have been re-elected to Parliament, they are serving out the remainder of their three year fixed term which they are entitled to under Article 41A(8) of the Constitution. The CC is not a Committee of Parliament but a body that stands outside it even though it is made up mostly of parliamentarians. Members of the Constitutional Council appointed in 2018 who have fixed terms continue to function even if Parliament is dissolved and a new Parliament is convened and the Members of Parliament who survive the election can serve out the remainder of their terms in the new parliament.
The nominee on the CC representing the President was Mahinda Samarasinghe. He too had a fixed three year term under Article 41A(8) and he has been re-elected to Parliament, but he has been replaced by Mahindananda Aluthgamage. The only way such a change can be made would be on the grounds that the President has changed so the individual representing the President on the CC also has to change. However no provision has been made in the Constitution to make such a change and one has to go by the wording of Article 41A(1)(d) which states that the CC has to have one Member of Parliament appointed by the President. By implication, such an appointee cannot be the person who was appointed by the former President.
But there’s no such luck when it comes to the five members of the CC appointed jointly by the Prime Minister and the Leader of the Opposition, two of whom should be MPs. All these appointees have fixed three year terms under Article 41A(8) and they cease to be members of the CC only if the member resigns or is removed from office on both the Prime Minister and the Leader of the Opposition forming an opinion that such member is physically or mentally incapacitated and is unable to function further in office or is convicted by a court of law or if he loses his civic rights. There is no provision for such an appointee to be removed from the CC when the PM and the Opposition Leader changes. Thus Thalatha Athukorale and Sampanthan continue to sit on the CC. The majority of MPs belonging to the smaller political parties in Parliament to which neither the PM nor the Leader of the Opposition belong are yahapalanites and if they nominate a replacement for Bimal Ratnayake, that nominee will be another yahapalanite.
The replacement for Jayantha Dahanapala, since it will have to be made jointly by Prime Minister Mahinda Rajapaksa and Opposition leader Sajith Premadasa, may be a neutral person but it will not help to correct the imbalance in the CC. There will be just three SLPP members and one neutral person as against six yahapalanites. There is the danger that the yahapalanites on the CC will stuff the so called independent commissions full of yahapalanites as they did in 2015 and 2018, thus subverting the people’s mandate of 2019 and 2020. Under Article 41B (4), if the President does not appoint the members of the independent commissions recommended by the Constitutional Council within 14 days, they will be deemed to have been appointed automatically at the end of that period. It takes little imagination to see the immediate danger posed by these provisions.
The Elections Commission will have to be reappointed in November this year, and it’s imperative that the present Constitutional Council be abolished by then. The 20th Amendment seeks to replace the present Constitutional Council with a five member Parliamentary Council made up 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.
The President’s defence responsibilities
Another situation that should not be allowed to persist until a new constitution is drafted is the question whether the President can hold the defence portfolio or not. The drafting of a new constitution may take at least a year given some of the contentious issues like electoral reform that will have to be negotiated. There is no express prohibition in the 19th Amendment on the President holding portfolios. The supposed prohibition is by implication. Before the 19th Amendment, there used to be Article 44(2) in the Constitution which stated 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. That provision was dropped when the 19th Amendment repealed and replaced Chapter Eight of the Constitution. There was also a transitional provision in the form of Section 51 of the 19th Amendment Act which stated that Maithripala Sirisena, so long as he held office as President, may assign to himself the subjects and functions of Defence, Mahaweli Development and Environment.
The disappearance of old Article 44(2) and Section 51 of the 19th Amendment Act taken together are supposed to imply that the Presidents coming after Maithripala Sirisena cannot hold any portfolio – not even the defence portfolio. Yet as the Constitution stands even after the 19th Amendment, the President is the Head of the State, the Head of the Executive, Head of the Government and Head of the Cabinet of Ministers in a situation where Article 4(b) states that the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President. We see that Article 46 of the 1946 Constitution named certain ministries that had to be established such as the Ministry of Justice, Ministry of Finance and the Ministry of Defence and External Affairs. Our present Constitution does not name any ministries that have to be established.
According to our Constitution, the executive is made up of the President and the Cabinet and the President appoints the secretaries to all ministries. So long as the President and Cabinet are of one mind, it may be possible to have a defence ministry run by its Secretary without a Gazetted Defence Minister as such. In such an instance, the defence secretary will be acting under the instructions of the President and the Cabinet. The only hitch will be when the defence minister is required by legislation to sign certain documents in his capacity as the minister of defence or the minister in charge of a certain function. But such areas can be assigned to the State Minister of Defence and theoretically, a patchwork arrangement of that sort can be continued until a new constitution is passed.
But it’s a moot question as to whether it is advisable to carry on in such a manner for an extended period of time especially with regard to a matter as important as defence. The SLPP won the presidential and parliamentary elections on a public security and law and order ticket. Minister of Education Prof. G.L.Peiris has been addressing public gatherings arguing for the immediate rectification of this situation which has cast doubts on the President’s ability to hold the defence portfolio. This together with the Constitutional Council issue highlighted earlier can be named as the two issues that cannot wait until a new Constitution is drafted and needs to be resolved as soon as possible. The draft 20th Amendment has sought to resolve the defence ministry issue by restoring the old (pre-19th Amendment) Article 44(2) which stated 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.
Issues that can wait
In the medium to long term, the most dangerous aspect of the 19th Amendment is the total prohibition on the dissolution of Parliament until the lapse of four and a half years unless a resolution to that effect is passed by Parliament with a two thirds majority. Before the introduction of the 19th Amendment, the old Article 70(1) of the Constitution stated that the President could dissolve Parliament at his discretion, and the only restriction on this power was if the last parliamentary election had been held as a consequence of the President having dissolved Parliament at his discretion, he could not dissolve the next Parliament until the lapse of one year from the date of that Parliamentary election. Moreover, under the old Article 70(1), Parliament could dissolve itself by a resolution passed by a simple majority and if the government cannot get the budget passed after two attempts, the President was mandatorily required to dissolve parliament.
But now, we have a Parliament that cannot be dissolved for four and a half years regardless of anything that may happen within Parliament, even if the government suffers repeated defeats at no confidence motions, if their budgets or statements of government policy are repeatedly defeated, there is no provision to dissolve Parliament to hold fresh elections unless a motion is passed by a two thirds majority in Parliament requesting dissolution. This can lead to a paralysis of the entire government. However, since the present government has an overwhelming majority in Parliament, rectification of this issue can wait till the new constitution is drafted, but since the rectification of this needs only the simple measure of repealing the yahapalana Article 70(1) and restoring the old article 70(1), there is perhaps no harm in doing that through the interim amendment.
One of the provisions in the 19th Amendment that had a serious impact on the yahapalana government was the diarchy that it created by Article 43 which said that the President could at his discretion determine the number of Cabinet Ministers and the assignment of subjects and functions to such Ministers, but was required to mandatorily consult the Prime Minister when appointing MPs to those ministerial positions. Thus the Prime Minister became the effective appointing authority of Ministers. Wimal Weerawansa described this as a situation where the President was wearing the shirt and the Prime Minister the trousers with neither of them having a full set of clothes!
For any political party other than the SLPP, this provision would have had serious consequences. But the SLPP will not have any issues so long as the Rajapaksa brothers hold those two positions. The recification of this issue could have waited till the new constitution was drafted, but the 20th Amendment seeks to rectify this by restoring the old Article 44(1) as it stood before the 19th Amendment – which will give the President the power to determine the number of Cabinet Ministers and the assignment of subjects and functions to such Ministers and to appoint MPs to those positions after consulting the PM if he deems such consultation to be necessary.
There are other issues too that could have been put off till the new constitution is drafted, such as lifting the yahapalana ban on dual citizens contesting elections, and reducing the age limit for contesting presidential elections. Provision also has been made in the 20th Amendment to restore the urgent Bills procedure whereby if the Cabinet of Ministers certifies a Bill as urgent, the need to gazette the Bill 14 days before it is presented in Parliament can be dispensed with and the President can write to the Chief Justice, requesting a special determination of the Supreme Court as to whether the Bill is inconsistent with the Constitution and the Supreme Court is required to deliver their determination within 24 hours or a period not exceeding three days as specified by the President.
One area where the new Article 122 differs from the old (pre-19th Amendment) Article 122 is the inclusion of a new sub-Article 122(3) which specifies that Bills to amend the Constitution cannot be deemed to be urgent Bills. Another significant change to be made by the 20th Amendment is the dropping of the limit of 30 cabinet ministers and 40 non-cabinet ministers and deputy ministers introduced by the 19th Amendment. We see from the foregoing that what the 20th Amendment aims at is restoring the status quo ante, as things stood before the 17th, 18th and 19th Amendments. Some of these obviously can wait until the new constitution is drafted, but the first two issues mentioned in this column obviously need immediate attention. Going by the public pronouncements of members of the Cabinet Sub-committee on constitutional reform, such as Prof. G.L.Peiris, they too have prioritized certain areas such as the defence ministry issue which has wide ramifications for public security, the urgent Bills issue, and the Constitutional Council issue.