Now that the 19th Amendment to the Constitution has been enacted. What is the way forward?
Once it is certified by the Speaker, we will implement it. Especially, we have to go for the relevant appointments to the Constitutional Council and independent commissions. The formation of the Constitutional Council will be the first task. After that, the appointments will be made to the independent commissions.
There is lack of clarity regarding the new Constitutional Council law among the people. As the justice minister, how can you explain the law to the general public?
Initially, this was the same model found in the 17th Amendment to the Constitution which provided for the establishment of the Constitutional Council. Except three ex -officio members-the Speaker, the Prime Minister and the Opposition Leader- seven other persons from civil society were to be appointed to it. But, due to objections, we were compelled to compromise to have the majority of members from Parliament that will amount to seven. The remaining three members will be hand-picked from civil society.
Initially, what were your reasons to consider initially more slots to civil society representatives in the Constitutional Council?
But, the argument raised by the Opposition was that Parliament is the repository of the power of the people, and that it should not be alienated to third parties. On that argument, we also agreed for a compromise.
However, the government had a different stance to it. Why was that?
Our view was to give more weight to civil society representation that was accepted by the people in 2001 in the Constitution of the 17th Amendment. We were following the same principle. But, due to heavy opposition, we had no option.
Other than that, the Government had to give into the Opposition during the committee stage of the debate. What do you feel about it?
During the committee stage, I accommodated only three amendments. One was about the composition of the Constitutional Council. Second, it was the jurisdiction of the lower courts regarding action against MPs in cases of crossover or similar issues. We wanted to take away that jurisdiction from lower courts. But, the Opposition did not agree so we compromised it.
We have decided to deal with this crossover subject in the enactment of electoral reforms as the next amendment to the Constitution.
Also, we accommodated an amendment proposed by Lanka Samasamaja Party (LSSP) where Prof. Tissa Vitharana expressed an opinion that the independent commissions should be held answerable to Parliament. There is nothing new in it; in fact we were to do it. We have accommodated it this amendment, and it is included in the Constitution. We had mentioned that there would be a mechanism in this regard under Standing Orders of Parliament. We did not deviate from this requirement.
The Democratic Left Front Leader Vasudeva Nanayakkara also sought a clarification of what the National Government is. I verbally spelt out the definition of the National Government. Finally, out of 70 odd amendments they brought in, we accommodated only three. Prior to the committee stage a number of amendments brought in during bilateral discussions but we reached an understanding with the opposition leader. We also dropped the penal provision regarding journalists.
We also did away with the provision that stipulated that the president should consult the chairman of the Sri Lanka Association of Justice in the appointment of Supreme Court judges.
But, there is a public perception that this Bill did not extend to political reforms pledged during election time. What are your views on it?
We never said that we will fully scrap the Executive Presidency but that we would remove presidential powers that would not require a referendum. In fact, we faced the stiffest opposition to the provision that the president should act on the advice of the prime minister in the appointment of Cabinet Ministers. But we retained this clause by convincing the (the Opposition) that the provision should be retained because without it, Parliament can’t function.
Now, the president has to act on the advice of the PM and we thank the Opposition for supporting it. Yet, the provision we brought making it mandatory to consult the PM in the assignment of subjects to Cabinet Ministers was omitted because it needed a referendum to be approved.
After the next general elections, you are planning to bring about more constitutional changes. What kind of reforms will they be?
We are intending to bring in a new Constitution because the present one has been tinkered with too much. It has gone out of shape as a result. We need two years to formulate a new Constitution..
In doing so, do you consider power devolution to the periphery?
We have studied that aspect on our own and we have to do it. In this connection, proposals made by the Lessons Learnt and Reconciliation Commission, All Party Representative Committee (APRC) and the pledges made by former President Mahinda Rajapaksa will be considered.
Are you seeking to strengthen the parliamentary system further?
Actually, that is to strengthen the people more. Parliament and the Executive Presidency are mere institutions or mechanisms to ensure the strength and protection of the people. We are not following either the American system or the British system- we want to have our own one. The president’s immunity regarding fundamental rights has been removed in the new Constitution. Now, decision making has been transferred to Parliament mostly, the Constitutional Council and independent commissions
With less than one third of MPs we have formed a government of our own. It has never happened in history. And the party that ruled with a two-thirds majority is in the Opposition. It was a revolution. But, it takes 30,000 -40,000 lives any revolution of this nature to take place in any country. But we achieved it without any blood shed whatsoever.
A compromise was also made on the size of the Cabinet in the event of a national government formed between the two main parties. What is your view about that?
We left it open to Parliament[ to decide]. Though it was a compromise, it will benefit the Government.
What is your position regarding electoral reforms?
We are going ahead with them. The concept paper has been presented. Basically, we have agreed that there should be one member responsible for each electorate. Then, there is no preferential voting.
There are several optional proposals. Finally, I proposed 160 from the First Past the Post System, ten from multi-member constituencies. Then, out of 85 members left. 60 would be proposed under the district or provisional Proportional Representation System and 25 on the National List.
Alternatively, 70 members could be proposed from the Proportional Representation System and 15 from the National List. The minority parties suggested 50 per cent from the First Past the Post System and 50 per cent from the National Proportional representation System, and 85 from the National List.
There is no difference between SLFP and UNP approaches. And, we are concerned that none of the minority parties are excluded.
Some SLFP- led alliance factions were more critical of the government. So, how can you say the entire SLFP is with you?
We are closely working with MPs such as Nimal Siripala de Silva, Dilan Perera, Anura Priyadarshana Yapa and Susil Premajayantha. We know their stand. But barring the SLFP, other parties entertain some concerns.
There was a debate raging in the country over the abolition of the Executive Presidency. Removing the dictatorial powers vested in the Executive President was one of the main promises held out under the 100-Agenda presented by Maithripala Sirisena as the main opposition Presidential candidate. This promise was fulfilled with the passing of the 19th Amendment to the Constitution last week. Justice Minister Wijeyadasa Rajapakshe discusses the powers taken away from the Executive President in the following interview he had had with our sister paper Sunday Lankadeepa.
The 18th Amendment repealed a number of provisions enacted under the 17th Amendment. The 18th Amendment in particular repealed the Article 31 (2) of the Constitution that restricted to two, the number of terms that a person was qualified to be elected to the office.
Executive powers increased under 18th Amendment
Although, the former President increased the powers of his office through the enactment of the 18th Amendment, he had promised in his election manifesto to abolish the Executive Presidency. Maithripala Sirisena is the only President who took the initiative to restrict the powers of the Executive Presidency true to the promise he held out to the people.
Executive powers repealed under 19th Amendment
Through the 19th Amendment passed by over a two thirds majority, a number of powers vested in the Executive President have been either amended or repealed.
Executive powers, an impediment to development
It is a well-known fact that the development in countries led by Heads of State wielding executive powers have slowed down. The powers of the Executive Presidency in our country had become a curse to the people. These powers constituted a serious obstacle in the way of country’s development. The term of office of the President has now been reduced to 5 years from the previous six.
Seeking a third term in office prevented
The new Amendment has restricted the number of terms a person is qualified to hold the office of Executive President to two. Under this Amendment a person elected twice, is not qualified to seek a third term, to be guided by the Constitution, not by astrological advice. The person elected as the President is required to assume office forthwith and later than two weeks from the date of the result of the election is declared under the provisions of the new Amendment. The person thus elected is required to assume office before expiration of the specified two week period. He has to assume office on a date as required by the Constitution not on a date ordained by an astrologer.
Symbol of national unity
According to the powers and functions assigned to the President under the new Amendment, he has to be the symbol or embodiment of national unity. He is required, among other things, to adhere to and safeguard the Constitution, protect and consolidate the co-existence among the different ethnic and religious communities,to promote and foster national reconciliation and integration and to ensure a conducive atmosphere for holding fair and free elections in consultation with the Elections Commission.
Powers and functions retained
The President under the 19th Amendment continues to have the power to make a statement of Government Policy in Parliament at the commencement of each session of Parliament, to preside at ceremonial sittings of Parliament, to summon and prorogue Parliamentary sessions and to receive and recognize and to appoint and accredit Ambassadors, High Commissioners, Plenipotentiaries and other diplomatic agents.
According to the Constitutional provisions that were in force until the enactment of the 19th Amendment, Parliament had no power to question the conduct of the Executive President. In the past, the opposition was not allowed even to make a passing reference to the incumbent President during a debate on an issue of national significance. The members were denied the patently justifiable right to question the misdeeds or misdemeanours committed by the President.
Accountable to Parliament
In terms of the new Constitutional amendment, the Executive President has been made accountable to Parliament for the proper discharge of his powers and functions relating to public security in keeping with the specified Constitutional provisions, the laws in operation at the time and also any other written law.
Hereafter, Parliament is empowered to raise any question in regard to the manner in which the President discharges his powers and functions.
Supremacy of Parliament ensured
This is a Constitutional safeguard that ensures the supremacy of Parliament. Earlier, the country’s Constitution itself had held out as a sore thumb that there is an office superior in status and power to the Parliament.
President is not above law if he violates human rights
According to the existing Constitutional provisions in relation to human rights, every person aggrieved over the infringement of his/her rights or immediate infringement of such rights by executive or administrative action is entitled to seek relief or redress from the Supreme Court citing the Attorney General as the respondent. However, this provision has not covered an administrative or executive action on the part of the Executive President. It means, earlier a citizen could not seek relief or redress for damage or injustice caused to him or her by any action taken by the Executive President. Under the provisions of the new Amendment any citizen is now entitled to the right to file a law suit even against the President for violation of his fundamental human rights citing the Attorney General as the respondent.
18th Amendment thrown overboard – Independent Commissions back
The new Amendment provides for the establishment of the Constitutional Council abolished under the 18th Amendment.
The establishment of 10 independent commissions is envisaged under the 19th Amendment. The commissions are: Elections Commission, Public Service Commission, National Police Commission, Audit Services Commission, Sri Lanka Human Rights Commission, Commission to inquire into Bribery or Corruption, Finance Commission, Delimitation Commission, National Policy Planning Commission and University Grants Commission.
The Constitutional Council to be established will recommend nominees for appointment to these Commissions. Under the 18th Amendment the President had the power to appoint persons of his choice to these commissions. The 19th Amendment has taken this power away from the President. Now the President is required to appoint only the nominees recomme3nded by the Constitutional Council.
President cannot sabotage appointments
The President cannot indefinitely sit on the nominations made by the Constitutional Council as was done before. He is required to make the appointments recommended by the Council within 14 days of receiving such nominations. If the President fails to make appointments within the specified period, the Council’s nominees will be deemed duly appointed.
The President is required to inform the Speaker of all appointments he thus makes. The President has no power to appoint a member or a Chairman of any of these Commissions.
Appointments to High Posts in state sector
It is noteworthy that under the new 19th Amendment the President is no longer entitled to make appointments to any of the high posts in the state sector.
Accordingly, the appointment of the Chief Justice, judges of the Supreme Court and the Court of Appeal, Attorney General, Auditor General, Inspector General of Police, Ombudsman and the Secretary General to Parliament has become the function of the Constitutional Council.
Appointment of Ministers
Earlier, under the 18th Amendment, the President had the power to appoint the Ministers. Now the President is required to appoint ministers in consultation with the Prime Minister. The Prime Minister is the leader of the Cabinet. Earlier the President was the sole authority for the appointment of Ministers and the assignment of subjects to the ministers.
The President under the new Amendment is required to determine the number of Cabinet Ministers and the subjects and functions to be assigned to them in consultation with the Prime Minister.
The President is required to appoint even the non-Cabinet Ministers on the advice of the Prime Minister.
Earlier, the President appointed a large number of Deputy Ministers, Project Ministers, and Monitoring Ministers etc. using his discretionary powers.
Under the new Amendment all these non-Cabinet Ministers are accountable to the Cabinet and the Parliament for the proper discharge of their duties and functions.
The President no longer enjoys the power to appoint any number of Cabinet and non-Cabinet Ministers. Because, under the new Amendment, the number of Cabinet Ministers should not exceed 30 and the number of non-Cabinet Ministers should not exceed 40.
The President continues to enjoy the power to appoint Ministry Secretaries, but he is expected to make these appointments in consultation with the Prime Minister.
(Courtesy: Sunday Lankadeepa)